Dr Aman Hingorani, Senior Advocate, speaks with Col Anil Bhat (retd.) on his book Unravelling the Kashmir knot: Past, Present and Future | SAM Conversation
Dr Aman Hingorani, Senior Advocate, speaks with Col Anil Bhat (retd.) on his book Unravelling the Kashmir knot: Past, Present and Future | SAM Conversation
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00:00Welcome to SAM Conversation, an online program of South Asia Monitor. Today, we are going
00:19to discuss a very important and a very interesting and a book which is, you know, Unraveling
00:35the Kashmir Knot, Past, Present and Future. This is the second version which has been
00:47penned by Mr. Aman Hingorani, a fourth generation lawyer. The first, which was Unraveling the
00:59Kashmir Knot was published in 2016 and I had the pleasure of reading and reviewing this
01:12book. Both these books are eye-openers and trailblazers because this, the first book
01:27of Mr. Hingorani was based on British archives, which were declassified and I think we owe
01:39a debt to Mr. Hingorani for the kind of research he went and did there because everything about
01:48the partitioning of India, undivided India, was all there, is all there. The status of
01:59Jammu and Kashmir, the status of Pakistan-occupied Kashmir, it's all there. And the important
02:14fact that emerges, the facts that emerge from the first book are, why the British wanted
02:23to partition India, you know, and create Pakistan. This was part of the great game.
02:39They wanted an extension of the Islamic, you know, continuation from Turkey till the
02:52Chinese border to prevent the Russians from, you know, coming and poaching here, so to
03:04speak. And I think it was not enough for them to plunder and loot India, literally,
03:22but it was very important for them to, as per their principle of divide and rule, to
03:30divide India and to partition it so that as an undivided India, it would not be as
03:40powerful as it would have been. What also emerges from this is that we have been managing
03:59the Kashmir, Jammu-Kashmir problem with Pakistan, with even the state, before the abrogation,
04:11we were managing it with elements there who did not altogether have the welfare of that
04:23state in mind. As it turns out now, in a movie called Kashmir Files, there's a lot about that
04:35post-independence, those decades, which did not emerge in the media. Mr. Hingorani makes a very
04:53strong point, makes a very strong argument. He says that there are about over 50% of India
05:11is being, you know, snatched by two nations, China and Pakistan. And one way to get it back,
05:26there exists an organization called the International Court of Justice, which we,
05:37I think, the only time that one recalls India going to it was in trying to get Commander Jadhav
05:50of the Indian Navy retired, who Pakistan was trying to impose a death sentence on. Aman,
06:01please start unravelling towards the note. Good evening to everyone and lovely to see you,
06:13Colonel Bhatt. Well, let me put it this way, I'll try to make it as simple as possible. India is a
06:21very ancient civilization. But modern day India and Pakistan are creations of the Partition
06:32Agreement, which was reflected in the British statutes. That was the Indian Independence Act
06:38of 1947, the amended Government of India Act of 1935. And that was the constitutional law which
06:45governed both India and Pakistan. Now, my reading of that law, which is there in the book,
06:54makes it clear, for the reasons I've given in the book, that Jammu and Kashmir,
07:00the principal state of Jammu and Kashmir, which acceded to India under this very law,
07:06became an integral part of India. So the very law that created in modern day India,
07:11the very law that created Pakistan, makes J&K a part of India.
07:18So, if we start from that, if we see the constitutional law, because Kashmir is a
07:23political issue, but the best way of depoliticizing an issue is to subject it to a legal analysis to
07:31see what the law says on that point. And as for the reading of the law, the entire territory of
07:36J&K, as it stood on 15th August 1947, upon accession on 26th October, became a part of India.
07:47However, there's a political stalemate between India, Pakistan and China.
07:53About 50% of that territory, more than 50%, is in the hands of Pakistan and China,
08:00about 35% with Pakistan, about 20% with China. So, you actually have a situation in 2024,
08:10that more than 50, about 35% of the territory of J&K is still under foreign rule.
08:16Indian citizens are under foreign rule.
08:20So, you have Indian territory, which is being held by India, Pakistan and China.
08:27There's a political stalemate. How do you break the political stalemate?
08:33We don't have a diplomatic solution. Pakistan and China couldn't care less about diplomatic
08:38requests from India. We don't have a military solution. We don't have an economic solution.
08:47How do we get back our territory? How do we get back our citizens?
08:51It is here that where I suggest that perhaps we can use international law or law, that is
08:57constitutional law, that govern India and Pakistan, as a means to break the political stalemate.
09:04So, and then generate some political momentum to resolve this issue. Law can't resolve anything,
09:12least of all international relations. But law has a potential of altering the political discourse
09:18holding public opinion, which can then lead to a political movement.
09:24So, that's where the book talks about that if in law, India is entitled to the entire territory of
09:31J&K, it is lies in India's interest to use law to break the political stalemate and reclaim our
09:40territory and our people. Now, if you go back into the history of this particular problem,
09:46the reason why I had to get into declassified British archives and examine why the British
09:54scripted the partition of India, as is evident from their own documents, their own archives,
09:59which is not much in public discourse in India. But the partition was scripted,
10:06or it became a foregone conclusion, the minute the British realized India is not going to support the
10:10British in the Second World War efforts. The maps, the maps of the partition of India,
10:16were drawn up much earlier than 1947. And the book contains all that.
10:22I'm sorry, if you could just dwell on that again, because the British got 2.5 million Indian
10:34soldiers, sailors and airmen in the Second World War, who were the winning factor for the Allies.
10:43But you see, the minute the political force on the Indian subcontinent at that time was the
10:48Indian National Congress. And the Indian National Congress had simply said that,
10:54if Britain and Germany are going to war, and why should we be at war? Why should the British
11:00declare India to be at war? And in protest, that even resigned from all the seats that won in the
11:09elections, which let the Muslim League fill in that vacuum. But the point is,
11:18when India did not say that we will not support your Second World War effort, and coupled with
11:23the 1942 Quit India movement, the British realized that the Indian National Congress cannot be a
11:29reliable force, or a political party or political force, once they hand over power. So they had to
11:37create a state which is friendly to them. Which if you see the Chief of Staff's memorandum, etc,
11:44eventually became what is now Pakistan. Northwest frontier province is what they wanted,
11:50was completed the Islamic percent you were talking about from Turkey to China.
11:55Northwest frontier province is a hilly area, not viable as a state. And so, Punjab had to
12:03be partitioned, so that the fertile plains of West Punjab go to Northwest frontier province.
12:10The Congress thought that British will never partition Punjab, it was being run by ruled by
12:16the Unionist Party, a secular party, they would never partition Punjab. So they actually tried
12:21to make partition less attractive, or try to preempt it by saying, if you partition Punjab,
12:28you got to partition Bengal. The British said very well, we'll partition Bengal also.
12:33Two-nation theory was used as a pretext for partitioning. But if you talk, you see the
12:42archives, you see the exchange of telegrams between the Viceroy and the Secretary of State,
12:46Viceroy on the subcontinent, Secretary of State in London. They talk about Zafrullah Khan making a
12:52map of the dominions way back in 1940. And the blueprint of partition was sent by the Viceroy
12:59in the end of 1945, to London. This was 1945, which is virtually identical to the Radcliffe
13:07Award. So partition had been, was a foregone conclusion, it had been scripted. But I have
13:13placed the Kashmir issue in context of the partition, because apart from Northwest frontier
13:19province, the other region which completed that Islamic descent was Gilgit-Baltistan.
13:24The British wanted that territory to be free from Indian control. And hence, they assumed
13:30J&K would accede to Pakistan being Muslim majority. But when it did not, it was the British
13:36which carved out Gilgit-Baltistan five days after the accession of J&K, after it become Indian
13:41territory. 26 October, the accession happened. 31st October, the British Gilgit scouts carved out
13:49the Gilgit region, which was Indian territory, hoisted Pakistani flag and told Peshawar,
13:56you take it over. And at that point of, yes. No, I would like you to also, you know,
14:04touch upon a bit of deception that was carried out by, between Mountbatten and Radcliffe,
14:13of disclosing exactly what was to after 15th August.
14:22You see, the thing was, there were many reasons. One was Sikh hiccup, because Sikhs said we want
14:27Khalistan and they were misled into saying, well, Radcliffe would look into it, knowing
14:31jolly well Radcliffe had no mandate. Then there was this whole issue of the Chittagong tribes,
14:37their tribal area, and they were supposed to, they were being given to Pakistan.
14:42So the entire mechanism was that Radcliffe would delay the war till
14:48Mountbatten leaves for Karachi, and then it will reach later. So we actually had the
14:55partition coming into effect from 15th August 1947, without the boundaries even being declared,
15:00which actually led, contributed to the bloodshed, two million people being massacred,
15:04which Mountbatten has gone on to say, well, so what, that's only a small percentage
15:08of the Indian population. But that is apart from that, as I was saying, the British had
15:15earmarked Gilgit-Baltistan region to be carefree from Indian control. At that time,
15:19we were still dominance of the British. Pakistan was dominant till 1956, we were till 1950.
15:25The king was, the king of England was, or the UK was still the formal ruler.
15:32The Indian army, Pakistan army was headed by British chief of staff. They are the ones who
15:38decided to draw the buffer zone, what is the so-called Azad Kashmir, because the idea was
15:45that if India goes to Pakistan, goes to war against Pakistan, to recover Gilgit-Baltistan,
15:51India will liquidate Pakistan, defeating the very rationale of partition.
15:55And so we must have a buffer area. And that strip of territory was actually demarcated by the Indian
16:02Pakistan chief of staffs who were British. So that this area is carefree from Indian control.
16:09These areas were earmarked to be carefree from Indian control. And I've talked in the book how
16:14the matter eventually was taken at the instigation of Mountbatten to the United Nations,
16:19so that the United Nations Security Council was subverted to ensure ceasefire without requiring
16:25Pakistan to vacate that territory, and hence keep that territory for the British for their great
16:30game against Soviet Russia. So this was an entire trap. I've documented in the book from Drishak
16:36Avakai, from the United Nations Security Council reports, the trap laid on by India and how we fell
16:41for it. Thank you very much. And then two more points which I'd like you to throw light on.
16:50The idea of, you know, partitioning India was, or no, the propping up of the Muslim League
16:59was done sometime in 18, after 1857. And eventually it was, they found an ideal,
17:09ideal person in Mr. Muhammad Ali Chinna to, to, to head it and to steer it into,
17:16into the partition, even if he was to live only one year after that. And that and, and secondly,
17:29you know, we'd like you to throw light on what has transpired after abrogation of
17:38Article 370, please.
17:40See, as far as the first part is concerned, I've documented how after the First War of Independence
17:46of 1857, the role of the East India Company came to an end, the British Front took it over in 1858,
17:53with the first Government of India Act, which talked about a centralised body. But from the
17:57political front, Hindus and Muslims were putting up a united front to throw the British. And if you
18:04even if you see the speeches, or say, the Madkhan, etc, people who eventually founded the
18:09Pakistan, they were all talking about Hindustan being a territorial unit, regardless of religion,
18:15who all who resided in Hindustan were Hindus, even if they were practised Islam or Hinduism
18:21or Sikhism or Christianity. So that was one aspect of it. And I document, documented how
18:27after the visit of the Prince of Wales, later, the King of England, they said Congress is becoming
18:32a power, Congress had been set up at that time, a secular party. And so we need a Muslim Congress
18:37to checkmate that. And that's the way the Muslim League came into force, came into being,
18:42and on talked about separate electorates, etc. So that all that is in the in the book.
18:48Later on, once the British realised that they needed to, you know, to, you know,
18:55that they needed to get the actually they replicated the policies they did with the
19:02disintegration of the Ottoman Empire, which created Turkey in 1920s. You can, I've drawn
19:09out the parallels of the politics in the Middle East and on India, identical politics,
19:15the way they are Sharif Hussain, the reward, they identified Jinnah, who was till then,
19:21supposedly, actually described by Suraj Naidu to be an ambassador of Hindu-Muslim unity,
19:26and who had told the British that he prefers his own views than carving up the city,
19:30he had disowned at Cambridge, the idea of Pakistan at the roundtable conference.
19:35So and he had even disowned the two nation theory in the Constituent Assembly of Pakistan,
19:38I've documented all that. He was a politically ambitious ambassador having no following.
19:44But he used the, he led the British, he collaborated with the British to use a
19:50two nation theory to legitimise the carving out of what is now Pakistan. And he was promised that
19:57land, he was said, I don't care what we get, even if I get the same desert, but I want my own state.
20:02So for him, Pakistan was a political mission. So that all has been documented by many commentators.
20:08I've just summed up and taken these facts from different sources to show how the leaders of
20:17undivided India would not rise to the challenge, put up by the British, who got away with
20:24partitioning the subcontinent, India, Pakistan, Bangladesh, the same people, who Gandhi has said,
20:31there's a fusion of it is like a Hindu-Muslims have learned to coexist. They live side by side
20:37throughout, by partitioning, you're cutting a living organism into pieces. So the British has
20:42taken the entire subcontinent for a ride and till date, we're not able to get back our territory,
20:47which is with Pakistan and China. But that's one part of it. If that is the crux of Kashmir issue,
20:55370, actually, we have equated 370 erroneously, in my view, with the Kashmir issue.
21:02The basis of on which J&K became a part of India's instrument of accession,
21:07370 is a provision of the instant constitution simply to give effect to the terms of accession.
21:14370 is not the Kashmir issue. The genesis of the Kashmir issue does not lie in three Article 370.
21:22The solution does not lie in Article 370. Whether you keep it or you abrogate it,
21:28Pakistan and China are not going to abrogate. So even by abrogating 370, you haven't got back
21:3455% of the territory of the princely state, now UTs, J&K has become a UTA, but the former
21:41princely state, 55% of that territory is still with Pakistan and China. By abrogating 370,
21:48we haven't got our people back to India. Even those people who reside in POK or China-occupied
21:56Kashmir, they've lost their consciousness of being Indian citizens. It's important to emphasize
22:03the princely state was never part of Pakistan. The princely state was never part of China.
22:10As per the Pakistan constitution, these citizens are not Pakistani citizens.
22:14And if I may please just interrupt. We are saying part of China, part of Tibet, please.
22:20It is the India-China border which we refer to as the India-Tibet border. All of which China
22:27has swallowed up. They have gobbled up Tibet. Absolutely. That is yet another
22:38area which needs to be examined. But on the ground that this boundary is not demarcated,
22:45the Johnson line, etc. There is a dispute between India and China on this point.
22:50But when we talk of the Kashmir issue, we blank out China. We say it's a bilateral issue.
22:55How is it a bilateral issue when China has captured about 20% of Indian territory?
23:01So you have Pakistan in part of the territory, you have China in part of the territory.
23:06The China-Pakistan Economic Corridor, which is the vital part of the BRI, the Belt and Road
23:12Initiative, starts from Gilgit-Baltistan, which is Indian territory. So you have a ridiculous
23:18situation where China is investing billions of dollars on Indian territory to build this
23:24economic corridor with Pakistan, which will give it strategic depth into Central Asia,
23:29into the Middle East. Because it goes into the Gwadar post. So all this is Indian territory.
23:36How are you going to get it back? So if you can't get it back diplomatically or politically,
23:42through an economic solution, the idea is that if you go to the ICJ, and we tell the ICJ that
23:49under the very law that created modern day India and Pakistan, J&K is a part of India,
23:55the very presence of Pakistan in China, there is aggression. Tomorrow, nobody can then say
24:00there's a jihad going on out there. No country can take advantage of the presence of Pakistan
24:08and China in J&K. What we have done is, the mistakes we have, we need to undo our mistakes.
24:15The mistakes we have done is that as per the law, J&K became part of India, still, we said,
24:21we accept the accession provisionally. So we created doubt on our own title. Then we
24:27internationalized it by going to the United Nations. In the United Nations, we committed
24:32to plebiscite. Having done that, we gave standing on every country in the world to comment on J&K.
24:40We enabled the international community to say this is disputed territory when it is Indian territory.
24:46After we have agreed to a ceasefire without requiring Pakistan to first vacate.
24:55So we are focused on territorial status quo. We talk about Shimla Agreement, Lahore Declaration,
25:01without realizing that after Kishore Nanda Bharti's case, earlier you had Bedobari Union's
25:05case which said India can cede national territory by legislative action, by amending the constitution.
25:12Subsequent you have Kishore Nanda Bharti's case which says territorial integrity and unity of
25:16the country's basic structure of the constitution. That means parliament cannot cede national
25:21territory. Or can we even talk about LOC into the international border unofficially also?
25:26Officially we say we need to get it back. That's a parliament resolution.
25:30But Shimla Agreement talks about inviolability of the ceasefire line. We can't cede national
25:35territory. Parliament has no power. Our policies are against our own constitution.
25:40We have made mistake after mistake. Now after having internationalized the Kashmir issue,
25:47after having let the international community call it disputed territory, now we say it's a
25:53bilateral issue between India and Pakistan. We blank out China and we don't do anything to get
25:59back a territory. So if we go to the ICJ and say that's an Indian territory and if the ICJ rules in
26:06our favor, it changes the political discourse. No country tomorrow can say that Pakistan can
26:14give even moral support to what's happening in J&K. We all know what the kind of export
26:20cross-border terrorism that comes in. The international community, we have decisions
26:25from Namibia, Nicaragua. The ICJ decisions are talked in the book. There are plenty of precedents.
26:30What are the consequences of an ICJ decision? The very presence of Pakistan-China will be
26:36declared to be aggression. The international community will have to tell them to vacate.
26:40It hardly makes sense. I mean, of course, they are skeptical. They say China will never vacate.
26:46Pakistan will never vacate. Very well, we'll negotiate with them as to what is to be done
26:51under Indian sovereignty, but at least a change of the political discourse.
26:57What is the strategy the Indian establishment has had from 1947 till 2024? What is the strategy
27:05they've had to get back 55% of the territory of the princely state? They've just thrown in the
27:10towel. They've given it up. Apart from making parliament resolutions and formal protests,
27:17what is the concrete policy? We keep focusing on 45% of J&K, which is with India.
27:23What about the remaining 55%? So, what I'm saying is what you're doing,
27:30what you want to do, for me, Article 370 is irrelevant. I'm more interested in seeing
27:37how will you get back POK or China-occupied Kashmir, and one way of doing that is to use
27:42international law, to get a finding in law that the entire territory is Indian,
27:47so as to change the political discourse. And what can the ICJ say? I've already given the
27:54whole jurisprudence of ICJ by which they would have to rule it as Indian territory,
27:58otherwise there is no Pakistan, if they take a different view. And if they say,
28:04wishes of the people are relevant, very well. We have a certain wishes of the people through the
28:08Electorate State Constituent Assembly, who have said J&K, be the people of J&K, want to be an
28:14integral part of India. That's also been a certain. So, we don't stand to lose anything by going to
28:20the ICJ. But if we win, we have changed the entire national and international political
28:27discourse on J&K. Today, we are defensive. So, it is our territory, our people, we always become
28:34defensive on the international circles. We always try to reduce it to bilateral issue,
28:39the way the international community condemned Pakistan for Kargil invasion, and Pakistan had
28:44to withdraw. We need to build international opinion to say entire territory of J&K is Indian
28:51territory, and condemn Pakistan and China for committing aggression. And incidentally, the 1963
28:59Sino-Pakistan Boundary Agreement itself says that the territory of J&K, which Pakistan gifted to
29:07China, is subject to the outcome of the resolution of the issue between India and Pakistan. So,
29:14China has never claimed sovereignty. They are saying that this is between India and Pakistan,
29:19whoever once has resolved, we'll deal with that party. So, we'll deal with China about CPEC.
29:26We can negotiate later on. We don't need to dismantle CPEC. That can be under Indian
29:32sovereignty. The possibilities are huge. But first, we need to get out of our fear of global politics.
29:39India of 2024 is different from India of 1947. We need, we cannot have a situation where a part,
29:47even an inch of Indian territory is under foreign rule, or Indian citizens are under foreign rule.
29:52I think there is so much more, but I think we are a little strapped for time.
30:00I must thank you for whatever very, very important points that you've come out with.
30:07And I feel that there's much more attention needs to be paid to this aspect of both as far as
30:19China and Pakistan are concerned. There is no end to our fighting, managing
30:27these relationships with a lot of lies that is peddled by both China and Pakistan.
30:36Lies in documents, lies on the table, and lies on the ground in identifying territory.
30:49Thank you very much. I look forward, in fact, to one more discussion in the future.
30:58Thank you very much, Aman. Thank you.