Plebiscite in Kashmir: All Things Considered, Is It Even Possible?

Post-Pulwama, there has been a lot of hate towards Kashmir and Kashmiris, and even suggestions of a plebiscite.

A Kashmiri protester runs for cover amid teargas smoke during a protest in Srinagar, Kashmir. (Photo: AP Photo/ Yasin Dar)

Post the 14 February Jaish-e-Mohammed attack in Pulwama, South Kashmir, in which over 40 CRPF personnel were martyred, actor-politician Kamal Haasan commented on the issue of plebiscite, and received a lot of flak for the ‘off-hand’ remark. What is the narrative surrounding this?

It is a perception that there is equal disaffection between Kashmiris and the rest of India. Kashmiris think of India as their step-mother, who neither understands their customs nor makes any pretense of understanding.

Alternately, India spends a lot more defending the Kashmiri frontier than Kashmir contributes to its GDP. But as Kashmir is a part of India, it is the country’s responsibility to take care of the ailing and productive units alike. The majority feel that the betterment of Kashmir will aid in the betterment of India and vice versa.

Whether the answer lies in a plebiscite or joining India’s mainstream, is an imperative discussion.

UNSC Resolution on Precursor to a Plebiscite in Kashmir

Geopolitics states that every place has a different reality. Germany thrived when they broke down the Berlin Wall; Sikkim merged with India gaining statehood; Europe was balkanized. There is no “universal” solution.

Indubitably, post-Independence wars have all been related to Kashmir. Countries like China have heavily invested in the region, amplifying tensions. At present, India is de-facto represented in 43 percent, Pakistan in 37 percent and China in uninhabited 20 percent of the region.

So, is it possible as per international law, to hold a plebiscite in Kashmir? On 1 January 1948, India, of its own accord, requested the UN to decide on the plebiscite on a region which it had legally acquired, ceded by Maharaja Hari Singh. The UNSC Resolution 47 of 1949 talked about three-steps as a precursor to holding a plebiscite:

• Pakistan was asked to withdraw all its nationals from Kashmir.
• India was asked to progressively reduce its forces to the minimum level required for law and order.
• India was asked to appoint a plebiscite-administrator nominated by the UN to conduct a plebiscite.

Is a Plebiscite in Kashmir Even Possible Amidst Violence?

The Resolution was covered under Chapter VI of the UN Charter, and taken as “recommendations” and not directives. They were voluntary in nature. India and Pakistan both had reservation to this, and the following Dixon Plan which called for plebiscite (only in the Valley) considering both Jammu and Ladakh were pro-India.

At present, the Valley covers 16 percent of the area with 55 percent of the population. The demography of Kashmir has been completely altered. Considerable Kashmiri Pandits have relocated elsewhere, giving up land and their chance of returning. Pakistani Army and the tribals have coalesced in PoK influencing the dynamics.

Nuclearisation of the subcontinent has been deemed a sine qua non to maintaining status quo. More so, is a plebiscite even possible under prevailing conditions of intermittent civil or military violence?

Jammu and Kashmir Constitution

Patel got Raja Hari Singh to sign the Instrument of Accession which was significant might for a nascent India. Today, wars, border skirmishes and internal strife tarnish peace; like the 2016-17 Burhan Wani episode, the tussle involving Article 370 (Special Status) and Article 35A (Special Privileges to Permanent Residents) of the Constitution. Kashmir is perceived as a white elephant among some.

Furthermore, sanction rests with national law alone. The Preamble and Article 3 of the J&K Constitution state that it is an integral part of the Union of India. Article 147 of the J&K Constitution disallows amendment to Article 3.

Unlike America, there is no option for ‘self determination’ in India. Only amendment under Article 368 of the Constitution of India, which passes through the litmus test of the “basic structure” doctrine, can alter the realm. But any modification or disintegration of the territory will affect the “federal” character of the Union posing a direct challenge to the Basic Structure.

Kashmiris Should Be Encouraged to Join the Mainstream

The prevailing sense of alienation among the Kashmiris ought to be addressed. Restrictions on basic freedoms, unemployment, etc. are some of the conspicuous issues. Few Indians resent ‘special privileges’ under Article 370 and Article 35A of the Constitution of India provided to the Kashmiris, which includes restriction on transfer of property to non- permanent residents.

Private ownership and enterprise is severely limited to the residents. With regular curfew and bandhs, it is seen that the economy is not governed by markets but by government handouts.

Perhaps an equal opportunity platform to join the Indian mainstream may elevate the youth in the right direction, leading to overall development. It is high time that we shun the gun, ease up the legal rigmarole in obtaining property, encourage enterprise, and look for social solutions rather than political answers. Boycotting Kashmiris will only make them bitter. The aim is not to kill the terrorist post-indoctrination but to provide a conducive environment so that no terrorist is born.

(Tanvi Saran Srivastava is Law Officer in MSTC Ltd, CPSU, and has done LLM in Access to Social Justice from TISS Mumbai. Her twitter handle is @tanvisaran and she can be reached on email at [e-mail]. This is a personal blog and the views expressed above are the author’s own. The Quintneither endorses nor is responsible for them.)