On Pakistan and the Theory & Practice of the Islamic State: An Excerpt from the Munir Report of 1954
From REPORT of THE COURT OF INQUIRY constituted under PUNJAB ACT II OF 1954 to enquire into the PUNJAB DISTURBANCES OF 1953 “Munir Report”
“ISLAMIC STATE
It has been repeatedly said before us that implicit in the demand for Pakistan was the demand for an Islamic State. Some speeches of important leaders who were striving for Pakistan undoubtedly lend themselves to this construction. These leaders while referring to an Islamic State or to a State governed by Islamic laws perhaps had in their minds the pattern of a legal structure based on or mixed up with Islamic dogma, personal law, ethics and institutions. No one who has given serious thought to the introduction of a religious State in Pakistan has failed to notice the tremendous difficulties with which any such scheme must be confronted. Even Dr. Muhammad Iqbal, who must be considered to be the first thinker who conceived of the possibility of a consolidated North Western Indian Muslim State, in the course of his presidential address to the Muslim League in 1930 said:
“Nor should the Hindus fear that the creation of autonomous Muslim States will mean the introduction of a kind of religious rule in such States. The principle that each group is entitled to free development on its own lines is not inspired by any feeling of narrow communalism”.
When we come to deal with the question of responsibility we shall have the occasion to point out that the most important of the parties who are now clamouring for the enforcement of the three demands on religious grounds were all against the idea of an Islamic State. Even Maulana Abul Ala Maudoodi of Jama’at-i-Islami was of the view that the form of Government in the new Muslim State, if it ever came into existence, could only be secular.
Before the Partition, the first public picture of Pakistan that the Quaid-i-Azam gave to the world was in the course of an interview in New Delhi with Mr. Doon Campbell, Reuter’s Correspondent. The Quaid-i-Azam said that the new State would be a modern democratic State, with sovereignty resting in the people and the members of the new nation having equal rights of citizenship regardless of their religion, caste or creed. When Pakistan formally appeared on the map, the Quaid-i-Azam in his memorable speech of 11th August 1947 to the Constituent Assembly of Pakistan, while stating the principle on which the new State was to be founded, said:—
“All the same, in this division it was impossible to avoid the question of minorities being in one Dominion or the other. Now that was unavoidable. There is no other solution. Now what shall we do? Now, if we want to make this great State of Pakistan happy and prosperous we should wholly and solely concentrate on the well-being of the people, and specially of the masses and the poor. If you will work in co-operation, forgetting the past, burying the hatchet, you are bound to succeed. If you change your past and work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this State with equal rights, privileges and obligations., there will be no end to the progress you will make. “I cannot emphasise it too much. We should begin to work in that spirit and in course of time all these angularities of the majority and minority communities—the Hindu community and the Muslim community— because even as regards Muslims you have Pathana, Punjabis, Shias, Sunnis and so on and among the Hindus you have Brahmins, Vashnavas, Khatris, also Bengalis, Madrasis and so on—will vanish. Indeed if you ask me this has been the biggest hindrance in the way of India to attain its freedom and independence and but for this we would have been free peoples long long ago. No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time but for this (Applause). Therefore, we must learn a lesson from this. You are free; you are free to go to your temples, you are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any religion or caste or creed— that has nothing to do with the business of the State (Hear, hear). As you know, history shows that in England conditions sometime ago were much worse than those prevailing in India today. The Roman Catholics and the Protestants persecuted each other. Even now there are some States in existence where there are discriminations made and bars imposed against a particular class. Thank God we are not starting in those days. We are starting in the days when there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State (Loud applause). The people of England in course of time had to face the realities of the situation and had to discharge the responsibilities and burdens placed upon them by the Government of their country and they went through that fire step by step. Today you might say with justice that Roman Catholics and Protestants do not exist: what exists now is that every man is a citizen, an equal citizen, of Great Britain and they are all members of the nation. “Now, I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State”.
The Quaid-i-Azam was the founder of Pakistan and the occasion on which he thus spoke was the first landmark in the history of Pakistan. The speech was intended both for his own people including non-Muslims and the world, and its object was to define as clearly as possible the ideal to the attainment of which the new State was to devote all its energies. There are repeated references in this speech to the bitterness of the past and an appeal to forget and change the past and to bury the hatchet. The future subject of the State is to be a citizen with equal rights, privileges and obligations, irrespective of colour, caste, creed or community. The word ‘nation’ is used more than once and religion is stated to have nothing to do with the business of the State and to be merely a matter of personal faith for the individual.
We asked the ulama whether this conception of a State was acceptable to them and everyone of them replied in an unhesitating negative, including the Ahrar and erstwhile Congressites with whom before the Partition this conception was almost a part of their faith.
If Maulana Amin Ahsan Islahi’s evidence correctly represents the view of Jama’at-i-Islami, a State based on this idea is the creature of the devil, and he is confirmed in this by several writings of his chief, Maulana Abul Ala Maudoodi, the founder of the jama’at. None of the ulama can tolerate a State which is based on nationalism and all that it implies; with them millat and all that it connotes can alone be the determining factor in State activity.
The Quaid-i-Azam’s conception of a modern national State, it is alleged, became obsolete with the passing of the Objectives Resolution on 12th March 1949; but it has been freely admitted that this Resolution, though grandiloquent in words, phrases and clauses, is nothing but a hoax and that not only does it not contain even a semblance of the embryo of an Islamic State but its provisions, particularly those relating to fundamental rights, are directly opposed to the principles of an Islamic State.
FOUNDATIONS OF ISLAMIC STATE
What is then the Islamic State of which everybody talks but nobody thinks? Before we seek to discover an answer to this question, we must have a clear conception of the scope and function of the State.
The ulama were divided in their opinions when they were asked to cite some precedent of an Islamic State in Muslim history. Thus, though Hafiz Kifayat Husain, the Shia divine, held out as his ideal the form of Government during the Holy Prophet’s time, Maulana Daud Ghaznavi also included in his precedent the days of the Islamic Republic, of Umar bin Abdul Aziz, Salah-ud-Din Ayyubi of Damascus, Sultan Mahmud of Ghazni, Muhammad Tughlaq and Aurangzeb and the present regime in Saudi Arabia. Most of them, however, relied on the form of Government during the Islamic Republic from 632 to 661 A. D., a period of less than thirty years, though some of them also added the very short period of Umar bin Abdul Aziz.
Maulana Abdul Haamid Badayuni stated that the details of the ideal State would be worked out by the ulama while Master Taj-ud-Din Ansari’s confused notion of an Islamic State may be gathered from the following portion of his interrogation :—
“Q.—Were you also in the Khilafat movement ? A.—Yes. Q.—When did the Khilafat movement stop in India ? A.—In 1923. This was after the Turks had declared their country to be a secular State. Q.—If you are told that the Khilafat movement continued long after the Turks had abolished Khilafat, will that be correct? A.—As far as I remember, the Khilafat movement finished with the abolition of the Khilafat by the Turks. Q.—You are reported to have been a member of the Khilafat movement and having made speeches. Is it correct ? A.—It could not be correct. Q.—Was the Congress interested in Khilafat ?
A.— Yes. Q.—Was Khilafat with you a matter of religious conviction or just a political movement ? A.— It was purely a religious movement. Q.— Did the Khilafat movement have the support of Mr Gandhi ? A.—Yes. Q.— What was the object of the Khilafat movement ? A.— The Britisher was injuring the Khilafat institution in Turkey and the Musalman was aggrieved by this attitude of the Britisher. Q.— Was not the object of the movement to resuscitate the Khilafat among the Musalmans ? A.—No. Q.— Is Khilafat with you a necessary part of Muslim form of Government ? A.—Yes. Q.— Are you, therefore, in favour of having a Khilafat in Pakistan ? A.—Yes. Q.— Can there be more than one Khalifa of the Muslims ? A.— No. Q.— Will the Khalifa of Pakistan be the Khalifa of all the Muslims of the world ?
A.— He should be but cannot be.”
Throughout the three thousand years over which political thought extends, and such thought in its early stages cannot be separated from religion, two questions have invariably presented themselves for consideration : —
(1) what are the precise functions of the State ? and
(2) who shall control the State ?
If the true scope of the activities of the State is the welfare, temporal or spiritual or both of the individual, then the first question directly gives rise to the bigger question:
What is the object of human life and the ultimate destiny of man? On this, widely divergent views have prevailed, not at different times but at one and the same time. The pygmies of equatorial West Africa still believe that their God Komba has sent them into the forest to hunt and dance and sing. The Epicureans meant very much the same when they said that the object of human life is to drink and eat and be merry, for death denies such pleasures. The utilitarians base their institutions on the assumption that the object of human life is to experience pleasant sensations of mind and body, irrespective of what is to come hereafter. The Stoics believed in curbing and reducing all physical desires, and Diogenes found a tub good enough to live in. German philosophers think that the individual lives for the State and that therefore the object of life is service of the State in all that it might decide to undertake and achieve. Ancient Hindu philosophers believed in the logic of the fist with its natural consequence, the law of natural selection and the struggle for survival. The Semitic theory of State, whether Jewish, Christian or Islamic, has always held that the object of human life is to prepare ourselves for the next life and that, therefore, prayer and good works are the only object of life. Greek philosophers beginning with Socrates thought that the object of human life was to engage in philosophical meditation with a view to discovering the great truths that lie in nature and that the business of the others is to feed the philosophers engaged in that undertaking.
Islam emphasises the doctrine that life in this world is not the only life given to man but that eternal life begins after the present existence comes to an end, and that the status of a human being in the next world will depend upon his beliefs and actions in this world. As the present life is not an end in itself but merely a means to an end, not only the individual but also the State, as opposed to the secular theory which bases all political and economic institutions on a disregard of their consequences on the next life, should strive for human conduct which ensures for a person better status in the next world.
According to this theory Islam is the religion which seeks to attain that object. Therefore the question immediately arises : What is Islam and who is a momin or a Muslim ? We put this question to the ulama and we shall presently refer to their answers to this question. But we cannot refrain from saying here that it was a matter of infinite regret to us that the ulama whose first duty should be to have settled views on this subject, were hopelessly disagreed among themselves.
Apart from how these learned divines have expressed themselves, we conceive of Islam as a system that covers, as every systematic religion must, the following five topics :—
(1) the dogma, namely, the essentials of belief ;
(2) the cult, namely, religious rites and observances which a person must
perform ;
(3) ethics, i. e. rules of moral conduct ;
(4) institutions, social, economic and political ; and
(5) law proper.
The essential basis of the rules on all these subjects is revelation and not reason, though both may coincide. This coincidence, however, is accidental because human reasoning may be faulty and ultimate reason is known only to God, Who sends His message to humanity through His chosen messengers for the direction and guidance of the people. One must, therefore, accept the dogma, observe the cult, follow the ethics, obey the law and establish institutions which God has revealed, though their reason may not be apparent—nay even if they be opposed to human reason. Since an error by God is an impossibility, anything that God has revealed, whether its subject be something occult or preternatural, history, finance, law, worship or something which according to human thought admits of scientific treatment as for instance, birth of man, evolution, cosmology, or astronomy, has got to be accepted as absolute truth. The test of reason is not the acid test and a denial of this amounts to a denial of the supreme wisdom and designs of Allah—it is kufr. Now God has revealed Himself from time to time to His favoured people of whom our Holy Prophet was the last. That revelation is contained in the Qur’an and covers the five topics mentioned above. The true business of a person who believes in Islam is therefore to understand, believe in and act upon that revelation. The people whom God chooses as medium for the transmission of His messages are rasuls (messengers) or nabis (prophets). Since every action or saying of a prophet is, in the case of our own Holy Prophet it certainly was, prompted by Allah, it has the same degree of inerrancy as the formal revelation itself, because prophets are ma’sum, incapable of doing or saying something which is opposed to Divine wishes. These sayings and actions are sunna having the same infallibility as the Qur’an. The record of this sunna is hadith which is to be found in several books which were compiled by Muslim scholars after long, laborious and careful research extending over several generations.
The word hadith means a record of actions or sayings of the Prophet and his companions. At first the sahaba. i. e. people who had lived in the society of the Prophet, were the best authority for a knowledge of the sunna. Later people had to be content with the communications of the tabi’un, i. e. successors, people of the first generation after the Holy Prophet who had received their information from the sahaba, and then in the following generations with the accounts of the so-called successors of the successors (tabi’ul-tabi’un), i.e. people of the second generation after the Holy Prophet, who had concerted with the successors. Marfu’ is a tradition which contains a statement about the Prophet ; mawquf, a tradition that refers only to the sayings or doings of the sahaba ; and maqtu’ a tradition which does not at most go further back than the first generation after the Holy Prophet and deals only with sayings or doings of tabi’un. In some of the ahadith the actual word of God is to be found. Any such tradition is designated Hadith-i-Qudsi or Ilahi as distinguished from an ordinary Hadith-i-Nabvi.
A very large portion of sayings ascribed to the Prophet deals with the ahkam (legal professions), religious obligations, halal and haram (what is allowed and forbidden), with ritual purity, laws regarding food and criminal and civil law. Further they deal with dogma, retribution at the Last Judgment, hell and paradise, angels, creation, revelations, the earlier prophets. Many traditions also contain edifying sayings and moral teachings by the Holy Prophet. The importance of ahadith was realised from the very beginning and they were not only committed to memory but in some cases were reduced to writing. The work of compilation of hadith began in the third century after the Hijra and the Sihah Sitta were all compiled in that century. These are the musannifs of —
(1) Al-Bukhari, died 256/870,
(2) Muslim, died 261/875,
(3) Abu Dawud, died 275/888,
(4) Al-Tirmizi, died 279/892,
(5) All Nasa’i, died 303/915, and
(6) Ibn-i-Maja, died 273/886.
According to modern laws of evidence, including our own, the ahadith are inadmissible evidence of sunna because each of them contains several links of hearsay, but as authority on law they are admissible pro prio vigore. The merit of these collections lies not so much in the fact that (as is often wrongly stated) their authors decided for the first time which of the numerous traditions in circulation were genuine and which false but rather in the fact that they brought together everything that was recognised as genuine in orthodox circles in those days.
The Shias judge hadith from their own stand-point and only consider such traditions reliable as are based on the authority of Ali and his adherents. They have, therefore, their own works on the subject and hold the following five works in particularly high esteem—
(1) Al-Kafi of Muhammad b. Yaqub Al-Kulini, died 328/939,
(2) Man La Yastahdiruhu’ul-Fakih of Muhammad b. Ali b. Babuya Al-Kummi,
died 381/991,
(3) Tahdib Al-Ahkam,
(4) Al-Istibsar Fi-Ma’khtalafa Fihi’l-Akhbar (extract from the preceding) of
Muhammad Altusi, died 459/1067, and
(5) Nahj Al-Balagha (alleged sayings of Ali) of Ali b. Tahir Al-Sharif Al-Murtaza, died 436/1044 (or of his brother Radi Al-Din Al-Baghdadi.)
After the ritual, the dogma and the most important political and social institutions had taken definite shape in the second and third centuries, there arose a certain communis opinio regarding the reliability of most transmitters of tradition and the value of their statement. The main principles of doctrine had already been established in the writings of Malik b. Anas, Al-Shafi’i and other scholars regarded as authoritative in different circles and mainly on the authority of traditional sayings of the Holy Prophet. In the long run no one dared to doubt the truth of these traditions and this almost conclusive presumption of truth has since continued to be attached to the ahadith compiled in the Sihah Sitta.
We have so far arrived at this result that any rule on any subject that may be derived from the Qur’an or the sunna of the Holy Prophet is binding on every Musalman. But since the only evidence of sunna is the hadith, the words sunna and hadith have become mixed up with, and indistinguishable from, each other with the result that the expression Qur’an and hadith is not infrequently employed where the intention is to refer to Qur’an and sunna.
At this stage another principle, equally basic, comes into operation, and that is that Islam is the final religion revealed by God, complete and exhaustive in all respects, and that God will not abrogate, detract from or add to this religion (din) any more than He will send a fresh messenger. The din having been perfected (Akmalto lakum dinokum, Sura V, verse 3), there remains no need for any new code repealing, modifying or amplifying the original code; nor for any fresh messenger or message. In this sense, therefore, prophethood ceased with the Holy Prophet and revelation stopped for ever. This is the doctrine of the cessation of wahi-i-nubuwwat.
If the proposition that Muslim dogma, ethics and institutions, etc., are all based on the doctrine of inerrancy, whether such inerrancy lies in the Qur’an, the sunna, ijma’ or ijtihad-i-mutlaq, is fully comprehended, the various deductions that follow from it will be easily understandable. As the ultimate test of truth, whether the matter be one of a ritual or political or social or economic nature, is revelation and revelation has to be gathered from the Qur’an, and the sunna carries almost the same degree of inerrancy as revelation and the only evidence of sunna is hadith, the first duty of those who desire to establish an Islamic State will be to discover the precise rule applicable to the existing circumstances whether that rule is to be found in the Qur’an or hadith. Obviously the persons most suited for the purpose would be those who have made the Qur’an and hadith their lifelong study, namely, among the Sunnies, the ulama, and among the Shias, the mujtahids who are the spokesmen of the hidden Imam, the ruler de jure divino. The function of these divines would be to engage themselves in discovering rules applicable to particular situations and they will be engaged in a task similar to that in which Greek philosophers were engaged, with only this difference that whereas the latter thought that all truth lay in nature which had merely to be discovered by individual effort, the ulama and the mujtahids will have to get at the truth that lies in the holy Book and the books of hadith.
The ulama Board which was recommended by the Basic Principles Committee was a logical recognition of this principle, and the true objection against that Board should indeed have been that the Board was too inadequate a mechanism to implement the principle which had brought that body into existence.
Ijma’ means concurrence of the mujtahids of the people, i.e., of those who have a right, in virtue of knowledge, to form a judgment of their own, after the death of the Holy Prophet. The authority of ijma’ rests on the principle of a divine protection against error and is founded on a basal tradition of the Holy Prophet, “My people will never agree in error”, reported in Ibn Maja, By this procedure points which had been in dispute were fixed, and when fixed, they became an essential part of the faith and disbelief in them an act of unbelief (kufr). The essential point to remember about ijma’ is that it represents the agreement of the mujtahids and that the agreement of the masses is especially excluded.
Thus ijma’ has not only fixed unsettled points but has changed settled doctrines of the greatest importance.
The distinction between ijma’ and ijtihad is that whereas the former is collective, the latter is individual. Ijtihad means the exerting of one’s self to the utmost degree to form an opinion in a case or as to a rule of law. This is done by applying analogy to the Qur’an and the sunna. Ijtihad did not originally involve inerrancy, its result being always zann or fallible opinion. Only combined ijtihad led to ijma, and was inerrant. But this broad ijtihad soon passed into special ijtihad of those who had a peculiar right to form judgments. When later doctors looked back to the founding of the four legal schools, they assigned to their founders an ijtihad of the first rank (ijtihad-i-mutlaq). But from time to time individuals appeared who returned to the earliest meaning of ijtihad and claimed for themselves the right to form their own opinion from first principles. One of these was the Hanbalite Ibn Taimiya (died 728). Another was Suyuti (died 911) in whom the claim to ijtihad unites with one to be the mujaddid or renewer of religion in his century. At every time there must exist at least one mujtahid, was his contention, just as in every century there must come a mujaddid.
In Shia Islam there are still absolute mujtahids because they are regarded as the spokesmen of the hidden Imam. Thus collective ijtihad leads to ijma’, and the basis of ijma’ is divine protection against error—inerrancy.
ESSENTIALS OF ISLAMIC STATE
Since the basis of Islamic law is the principle of inerrancy of revelation and of the Holy Prophet, the law to be found in the Qur’an and the sunna is above all man-made laws, and in case of conflict between the two, the latter, irrespective of its nature, must yield to the former. Thus, provided there be a rule in the Qur’an or the sunna on a matter which according to our conceptions falls within the region of Constitutional Law or International Law, the rule must be given effect to unless that rule itself permits a departure from it. Thus no distinction exists in Islamic law between Constitutional Law and other law, the whole law to be found in the Qur’an and the sunna being a part of the law of the land for Muslim subjects of the State. Similarly if there be a rule in the Qur’an or the sunna relating to the State’s relations with other States or to the relations of Muslim subjects of the State with other States or the subjects of those States, the rule will have the same superiority of sanction as any other law to be found in the Qur’an or the sunna.
Therefore if Pakistan is or is intended to be converted into an Islamic State in the true sense of the word, its Constitution must contain the following five provisions:—
(1) that all laws to be found in the Qur’an or the sunna shall be deemed to be a part of the law of the land for Muslims and shall be enforced accordingly;
(2) that unless the Constitution itself is framed by ijma’-i-ummat, namely, by the agreement of the ulama and mujtahids of acknowledged status, any provision in the Constitution which is repugnant to the Qur’an or sunna shall to the extent of the repugnancy be void;
(3) that unless the existing laws of Pakistan are adapted by ijma’-i-ummat of the kind mentioned above, any provision in the existing law which is contrary to the Qur’an or sunna shall to the extent of the repugnancy be void;
(4) that any provision in any future law which is repugnant to Qur’an or sunna shall be void;
(5) that no rule of International Law and no provision in any convention or treaty to which Pakistan is a party, which is contrary to the Qur’an or the sunna shall be binding on any Muslim in Pakistan.
SOVEREIGNTY AND DEMOCRACY IN ISLAMIC STATE
That the form of Government in Pakistan, if that form is to comply with the principles of Islam, will not be democratic is conceded by the ulama. We have already explained the doctrine of sovereignty of the Qur’an and the sunna. The Objectives Resolution rightly recognised this position when it recited that all sovereignty rests with God Almighty alone. But the authors of that Resolution misused the words ‘sovereign’ and ‘democracy’ when they recited that the Constitution to be framed was for a sovereign State in which principles of democracy as enunciated by Islam shall be fully observed.
It may be that in the context in which they were used, these words could not be misunderstood by those who are well versed in Islamic principles, but both these words were borrowed from western political philosophy and in that sense they were both wrongly used in the Resolution. When it is said that a country is sovereign, the implication is that its people or any other group of persons in it are entitled to conduct the affairs of that country in any way they like and untrammelled by any considerations except those of expediency and policy. An Islamic State, however, cannot in this sense be sovereign, because it will not be competent to abrogate, repeal or do away with any law in the Qur’an or the sunna. Absolute restriction on the legislative power of a State is a restriction on the sovereignty of the people of that State and if the origin of this restriction lies elsewhere than in the will of the people, then to the extent of that restriction the sovereignty of the State and its people is necessarily taken away. In an Islamic State, sovereignty, in its essentially juristic sense, can only rest with Allah. In the same way, democracy means the rule of the demos, namely, the people, directly by them as in ancient Greece and Rome, or indirectly through chosen representatives as in modern democracies. If the power of the people in the framing of the Constitution or in the framing of the laws or in the sphere of executive action is subject to certain immutable rules, it cannot be said that they can pass any law that they like, or, in the exercise of executive functions, do whatever they like. Indeed if the legislature in an Islamic State is a sort of ijma’, the masses are expressly disqualified from taking part in it because ijma’-i-ummat in Islamic jurisprudence is restricted to ulama and mujtahids of acknowledged status and does not at all extend, as in democracy, to the populace.
OTHER INCIDENTS OF ISLAMIC STATE ACCORDING TO ULAMA
In the preceding pages we have attempted to state as clearly as we could the principles on which a religious State must be built if it is to be called an Islamic State. We now proceed to state some incidents of such State, with particular reference to the ulamas’ conception of it.
LEGISLATURE AND LEGISLATION
Legislature in its present sense is unknown to the Islamic system. The religiopolitical system which is called din-i-Islam is a complete system which contains in itself the mechanism for discovering and applying law to any situation that may arise. During the Islamic Republic there was no legislature in its modern sense and for every situation or emergency that arose law could be discovered and applied by the ulama. The law had been made and was not to be made, the only function of those entrusted with the administration of law being to discover the law for the purposes of the particular case, though when enunciated and applied it formed a precedent for others to follow. It is wholly incorrect, as has been suggested from certain quarters, that in a country like Pakistan, which consists of different communities, Muslim and non-Muslim, and where representation is allowed to non-Muslims with a right to vote on every subject that comes up, the legislature is a form of ijma’ or ijtihad, the reason being that ijtihad is not collective but only individual, and though ijma’ is collective, there is no place in it for those who are not experts in the knowledge of the law. This principle at once rules out the infidels (kuffar) whether they be people of Scriptures (ahl-i-kitab) or idolators (mushrikeen).
Since Islam is a perfect religion containing laws, express or derivable by ijma’ or ijtihad, governing the whole field of human activity, there is in it no sanction for what may, in the modern sense, be called legislation.
Questioned on this point Maulana Abul Hasanat, President, Jami’at-ul-Ulama-i-Pakistan says :—
“Q.—Is the institution of legislature as distinguished from the institution of a person or body of persons entrusted with the interpretation of law, an integral part of an Islamic State?
A.—No. Our law is complete and merely requires interpretation by those who are experts in it. According to my belief no question can arise the law relating to which cannot be discovered from the Qur’an or the hadith.
Q.—Who were Sahib-ul-hall-i-wal-aqd
A.—They were the distinguished ulama of the time. These persons attained their status by reason of the knowledge of the law. They were not in any way analogous or similar to the legislature in modern democracy.”
The same view was expressed by Amir-i-Shari’at Sayyad Ata Ullah Shah Bukhari in one of his speeches reported in the ‘Azad’ of 22nd April, 1947, in the course of which he said that our din is complete and perfect and that it amounts to kufr to make more laws.
Maulana Abul Ala Maudoodi, however, is of the opinion that legislation in the true sense is possible in an Islamic State on matters which are not covered by the Qur’an, the sunna, or previous ijma’ and he has attempted to explain his point by reference to the institution of a body of persons whom the Holy Prophet, and after him the khulafa consulted on all matters relating to affairs of State. The question is one of some difficulty and great importance because any institution of legislature will have to be reconciled with the claim put forward by Maulana Abul Hasanat and some other religious divines that Islam is a perfect and exhaustive code wide enough to furnish an answer to any question that may arise relating to any human activity, and that it does not know of any “unoccupied field” to be filled by fresh legislation. There is no doubt that Islam enjoins consultation and that not only the Holy Prophet but also the first four caliphs and even their successors resorted to consultation with the leading men of the time, who for their knowledge of the law and piety could well be relied upon.
In the inquiry not much has been disclosed about the Majlis-i-Shura except what is contained in Maulana Abul Ala Maudoodi’s written statement which he supplied to the Court at its request. That there was a body of men who were consulted is true, but whether this was a standing body and whether its advice had any legal or binding force, seems somewhat doubtful. These men were certainly not elected in the modern way, though their representative character cannot be disputed. Their advice was certainly asked ad hoc, but that they were competent to make law as the modern legislatures make laws is certainly not correct. The decisions taken by them undoubtedly served as precedents and were in the nature of ijma’, which is not legislation but the application of an existing law to a particular case. When consulted in affairs of State, their functions were truly in the nature of an advice given by a modern cabinet but such advice is not law but only a decision.
Nor can the legislature in a modern State correspond to ijma’ because as we have already pointed out, the legislature legislates while the ulama of Majlis-i-Shura who were called upon to determine what should be the decision on a particular point which was not covered by the Qur’an and the sunna, merely sought to discover and apply the law and not to promulgate the law, though the decision when taken had to be taken not only for the purposes of the particular case but for subsequent occasions as a binding precedent.
An intriguing situation might arise if the Constitution Act provided that any provision of it, if it was inconsistent with the Qur’an or the sunna, would be void, and the intra vires of a law made by the legislature were questioned before the Supreme Court on the ground that the institution of legislature itself was contrary to the Qur’an and the sunna.
POSITION OF NON-MUSLIMS
The ground on which the removal of Chaudhri Zafrullah Khan and other Ahmadis occupying key positions in the State is demanded is that the Ahmadis are non-Muslims and that therefore like zimmies in an Islamic State they are not eligible for appointment to higher offices in the State. This aspect of the demands has directly raised a question about the position of non-Muslims in Pakistan if we are to have an Islamic Constitution.
According to the leading ulama the position of non-Muslims in the Islamic State of Pakistan will be that of zimmies and they will not be full citizens of Pakistan because they will not have the same rights as Muslims They will have no voice in the making of the law, no right to administer the law and no right to hold public offices.
A full statement of this position will be found in the evidence of Maulana Abul Hasanat Sayyad Muhammad Ahmad Qadri, Maulana Ahmad Ali, Mian Tufail Muhammad and Maulana Abdul Haamid Badayuni. Maulana Abul Hasanat on being questioned on the subject stated as follows :—
“Q.—If we were to have an Islamic State in Pakistan, what will be the position of the kuffar (non-Muslims)? Will they have a voice in the making of laws, the right of administering the law and the right to hold public offices? A.—Their position will be that of zimmies. They will have no voice in the making of laws, no right to administer the law and no right to hold public offices. Q.—In an Islamic State can the head of the State delegate any part of his powers to kuffar? A.—No.”
Maulana Ahmad Ali, when questioned, said:— “Q.—if we were to have an Islamic State in Pakistan, what will be the position of the kuffar? Will they have a hand in the making of the law, the right to administer the law and the right to hold public offices ? A.—Their position will be that of zimmies. They will have no say in the making of law and no right to administer the law. Government may, however, permit them to hold any public office”.
Mian Tufail Muhammad stated as follows :— “Q.—Read the article on minorities’ rights in the ‘Civil and Military Gazette’ of 13th October, 1953, and say whether it correctly represents your view of an Islamic State? (It was stated in the articles that minorities would have the same rights as Muslims). A.—I have read this article and do not acknowledge these rights for the Christians or other non-Muslims in Pakistan if the State is founded on the ideology of the Jama’at”.
The confusion on this point in the mind of Maulana Abdul Haamid Badayuni, President, Jami’at-ul-Ulama-i-Pakistan, is apparent from the following: —
“Q.—Have you ever read the aforesaid speech (the speech of the Quaid-i-Azam to the Constituent Assembly of Pakistan on 11th August, 1947)? A.—Yes, I have read that speech. Q.—Do you still agree with the conception of Pakistan that the Quaid-i-Azam presented to the Constituent Assembly in this speech in which he said that thereafter there would be only one Pakistan nation, consisting of Muslims and non-Muslims, having equal civic rights, without any distinction of race, religion or creed and that religion would be merely a private affair of the individual ? A.—I accept the principle that all communities, whether Muslims or non-Muslims, should have, according to their population, proper representation in the administration of the State and legislation, except that non-Muslims cannot be taken in the army or the judiciary or be appointed as Ministers or to other posts involving the reposing of confidence. Q.—Are you suggesting that the position of non-Muslims would be that of zimmies or any better ? A.—No. By zimmies are meant non-Muslim people of lands which have been conquered by an Islamic State, and the word is not applicable to non-Muslim minorities already living in an Islamic State. Such minorities are called mu’ahids, i.e. those people with whom some agreement has been made. Q.—What will be their status if there is no agreement with them ? A.—In that case such communities cannot have any rights of citizenship. Q.—Will the non-Muslim communities inhabiting Pakistan be called by you as mu’ahids? A.—No, not in the absence of an agreement with them. To my knowledge there is no such agreement with such communities in Pakistan.”
So, according to the evidence of this learned divine, the non-Muslims of Pakistan will neither be citizens nor will they have the status of zimmies or of mu’ahids. During the Islamic Republic, the head of the State, the khalifa, was chosen by a system of election, which was wholly different from the present system of election based on adult or any other form of popular suffrage. The oath of allegiance (ba’it) rendered to him possessed a sacramental virtue, and on his being chosen by the consensus of the people (ijma’-ul-ummat) he became the source of all channels of legitimate Government. He and he alone then was competent to rule, though he could delegate his powers to deputies and collect around him a body of men of outstanding piety and learning, called Majlis-i-Shura or Ahl-ul-Hall-i-wal-Aqd. The principal feature of this system was that the kuffar, for reasons which are too obvious and need not be stated, could not be admitted to this majlis and the power which had vested in the khalifa could not be delegated to the kuffar. The khalifa was the real head of the State, all power vesting in him and not a powerless individual like the President of a modern democratic State who is merely to sign the record of decisions taken by the Prime Minister and his Cabinet. He could not appoint non-Muslims to important posts, and could give them no place either in the interpretation or the administration of the law, the making of the law by them, as already pointed out, being a legal impossibility.
This being the position, the State will have to devise some machinery by which the distinction between a Muslim and a non-Muslim may be determined and its consequences enforced. The question, therefore, whether a person is or is not a Muslim will be of fundamental importance, and it was for this reason that we asked most of the leading ulama, to give their definition of a Muslim, the point being that if the ulama of the various sects believed the Ahmadis to be kafirs, they must have been quite clear in their minds not only about the grounds of such belief but also about the definition of a Muslim because the claim that a certain person or community is not within the pale of Islam implies on the part of the claimant an exact conception of what a Muslim is. The result of this part of the inquiry, however, has been anything but satisfactory, and if considerable confusion exists in the minds of our ulama on such a simple matter, one can easily imagine what the differences on more complicated matters will be. Below we reproduce the definition of a Muslim given by each alim in his own words. This definition was asked after it had been clearly explained to each witness that he was required to give the irreducible minimum conditions which, a person must satisfy to be entitled to be called a Muslim and that the definition was to be on the principle on which a term in grammar is defined.
Here is the result : —
Maulana Abul Hasanat Muhammad Ahmad Qadri, President, Jami’at-ul-Ulamai- Pakistan — “Q.— What is the definition of a Muslim ? A — (1) He must believe in the Unity of God. (2) He must believe in the prophet of Islam to be a true prophet as well as in all other prophets who have preceded him, (3) He must believe in the Holy Prophet of Islam as the last of the prophets (khatam-un-nabiyin). (4) He must believe in the Qur’an as it was revealed by God to the Holy Prophet of Islam. (5) He must believe as binding on him the injunctions of the Prophet of Islam. (6) He must believe in the qiyamat. Q.—Is a tarik-us-salat a Muslim ? A.—Yes, but not a munkir-us-salat”
Maulana Ahmad Ali, President, Jami’at-ul-Ulama-i-Islam, Maghribi Pakistan — “Q.— Please define a Muslim ? A.—A person is a Muslim if he believes (1) in the Qur’an and (2) what has been said by the prophet. Any person who possesses these two qualifications is entitled to be called a Muslim without his being required to believe in anything more or to do anything more.”
Maulana Abul Ala Maudoodi, Amir Jama’at-i-Islami — “Q.—Please define a Muslim ? A.—A person is a Muslim if he believes (1) in tauheed, (2) in all the prophets (ambiya), (3) all the books revealed by God, (4) in mala’ika (angels), and (5) yaum-ul-akhira (the Day of Judgment). Q.—Is a mere profession of belief in these articles sufficient to entitle a man to call himself a Musalman and to be treated as a Musalman in an Islamic State ? A.—Yes. Q.—If a person says that he believes in all these things, does any one have a right to question the existence of his belief ? A.—The five requisites that I have mentioned above are fundamental and any alteration in anyone of these articles will take him out of the pale of Islam.”
Ghazi Siraj-ud-Din Munir— “Q.—Please define a Muslim ? A.—I consider a man to be a Muslim if he professes his belief in the kalima, namely, La Ilaha Illalah-o-Muhammad-ur-Rasulullah, and leads a life in the footsteps of the Holy Prophet.”
Mufti Muhammad Idris, Jamia Ashrafia, Nila Gumbad, Lahore— “Q.—Please give the definition of a Musalman ? A.—The word ‘Musalman’ is a Persian one. There is a distinction between the word ‘Musalman’ which is a Persian word for Muslim and the word ‘momin’. It is impossible for me to give a complete definition of the word ‘momin’. I would require pages and pages to describe what a momin is. A person is a Muslim who professes to be obedient to Allah. He should believe in the Unity of God, prophethood of the ambiya and in the Day of Judgment. A person who does not believe in the azan or in the qurbani goes outside the pale of Islam. Similarly, there are a large number of other things which have been received by tavatir from our prophet. In order to be a Muslim, he must believe in all these things. It is almost impossible for me to give a complete list of such things.”
Hafiz Kifayat Hussain, Idara-i-Haquq-i-Tahaffuz-i-Shia— “Q.—Who is a Musalman? A.—A person is entitled to be called a Musalman if he believes in (1) tauheed, (2) nubuwwat and (3) qiyamat. These are the three fundamental beliefs which a person must profess to be called a Musalman. In regard to these three basic doctrines there is no difference between the Shias and the Sunnies. Besides the belief in these three doctrines, there are other things called ‘zarooriyat-i-din’ which a person must comply with in order to be entitled to be called a Musalman. These will take me two days to define and enumerate. But as an illustration I might state that the respect for the Holy Book, wajoob-i-nimaz, wajoob-i-roza, wajoob-i-hajj-ma’a-sharait, and other things too numerous to mention, are among the ‘zarooriyat-i-din’ ”
Maulana Abdul Hamid Badayuni, President, Jami’at-ul-Ulama-i-Pakistan : “Q.—Who is a Musalman according to you ? A.—A person who believes in the zarooriyat-i-din is called a momin and every momin is entitled to be called a Musalman. Q.—What are these zarooriyat-i-din ? A.—A person who believes in the five pillars of Islam and who believes in the rasalat of our Holy Prophet fulfils the zarooriyat-i-din. Q.—Have other actions, apart from the five arakan, anything to do with a man being a Muslim or being outside the pale of Islam? (Note—Witness has been explained that by actions are meant those rules of moral conduct which in modern society are accepted as correct.) A.—Certainly. Q.—Then you will not call a person a Muslim who believes in arakan-ikhamsa and the rasalat of the prophet but who steals other peoples’ things, embezzles property entrusted to him, has an evil eye on his neighbour’s wife and is guilty of the grossest ingratitude to his benefector? A.—Such a person, if he has the belief already indicated, will be a Muslim despite all this”.
Maulana Muhammad Ali Kandhalvi, Darush-Shahabia, Sialkot — “Q.—Please define a Musalman? A.—A person who in obedience to the commands of the prophet performs all the zarooriyat-i-din is a Musalman. Q.—Can you define zarooriyat-i-din ? A.—Zarooriyat-i-din are those requirements which are known to every Muslim irrespective of his religious knowledge. Q.—Can you enumerate zarooriyat-i-din ? A.—These are too numerous to be mentioned. I myself cannot enumerate these zarooriyat. Some of the zarooriyat-i-din may be mentioned as salat, saum, etc.”
Maulana Amin Ahsan Islahi — “Q.—Who is a Musalman? A.—There are two kinds of Musalmans, a political (siyasi) Musalman and a real (haqiqi) Musalman. In order to be called a political Musalman, a person must: (1) believe in the Unity of God, (2) believe in our Holy Prophet being khatam-un-nabiyin, i.e., ‘final authority’ in all matters relating to the life of that person, (3) believe that all good and evil comes from Allah, (4) believe in the Day of Judgment, (5) believe in the Qur’an to be the last book revealed by Allah, (6) perform the annual pilgrimage to Mecca, (7) pay the zaka’at, (8) say his prayers like the Musalmans, (9) observe all apparent rules of Islami mu’ashira, and (10) observe the fast (saum).
If a person satisfies all these conditions he is entitled to the rights of a full citizen of an Islamic State. If any one of these conditions is not satisfied, the person concerned will not be a political Musalman. (Again said) It would be enough for a person to be a Musalman if he merely professes his belief in these ten matters irrespective of whether he puts them into practice or not. In order to be a real Musalman, a person must believe in and act on all the injunctions by Allah and his prophet in the manner in which they have been enjoined upon him. Q.—Will you say that only the real Musalman is ‘mard-i-saleh’ ? A.—Yes. Q.—do we understand you aright that in the case of what you have called a political (siyasi) Musalman, belief alone is necessary, while in the case of a haqiqi Musalman there must not only be belief but also action? A.—No, you have not understood me aright. Even in the case of a political (siyasi) Musalman action is necessary but what I mean to say is that if a person does not act upon the belief that is necessary in the case of such a Musalman, he will not be outside the pale of a political (siyasi) Musalman. Q.—If a political (siyasi) Musalman does not believe in things which you have stated to be necessary, will you call such a person be-din ? A.—No, I will call him merely be-amal”.
The definition by the Sadr Anjuman Ahmadiya, Rabwah, in its written statement is that a Muslim is a person who belongs to the ummat of the Holy Prophet and professes belief in kalima-i-tayyaba.
Keeping in view the several definitions given by the ulama, need we make any comment except that no two learned divines are agreed on this fundamental. If we attempt our own definition as each learned divine has done and that definition differs from that given by all others, we unanimously go out of the fold of Islam. And if we adopt the definition given by any one of the ulama, we remain Muslims according to the view of that alim but kafirs according to the definition of every one else.
APOSTASY
Apostasy in an Islamic State is punishable with death. On this the ulama are practically unanimous (vide the evidence of Maulana Abul Hasanat Sayyad Muhammad Ahmad Qadri, President, Jami’at-ul-Ulama-i-Pakistan, Punjab; Maulana Ahmad Ali, Sadr Jami’at-ul-Ulama-i-Islam, West Pakistan; Maulana Abul Ala Maudoodi, founder and ex-Amir-i-Jama’at-i-Islami, Pakistan; Mufti Muhammad Idris, Jami’Ashrafia, Lahore, and Member, Jami’at-ul-Ulama-i-Pakistan; Maulana Daud Ghaznavi, President, Jami’at-i-Ahl-i-Hadith, Maghribi Pakistan; Maulana Abdul Haleem Qasimi, Jami’at-ul-Ulama-i-Islam, Punjab; and Mr. Ibrahim Ali Chishti). According to this doctrine, Chaudhri Zafrullah Khan, if he has not inherited his present religious beliefs but has voluntarily elected to be an Ahmadi, must be put to death. And the same fate should befall Deobandis and Wahabis, including Maulana Muhammad Shafi Deobandi, Member, Board of Talimat-i-Islami attached to the Constituent Assembly of Pakistan, and Maulana Daud Ghaznavi, if Maulana Abul Hasanat Sayyad Muhammad Ahmad Qadri or Mirza Raza Ahmad Khan Barelvi, or any one of the numerous ulama who are shown perched on every leaf of a beautiful tree in the fatwa, Ex. D. E. 14, were the head of such Islamic State. And if Maulana Muhammad Shafi Deobandi were the head of the State, he would exclude those who have pronounced Deobandis as kafirs from the pale of Islam and inflict on them the death penalty if they come within the definition of murtadd, namely, if they have changed and not inherited their religious views.
The genuineness of the fatwa, Ex. D. E. 13, by the Deobandis which says that Asna Ashari Shias are kafirs and murtadds, was questioned in the course of enquiry, but Maulana Muhammad Shafi made an inquiry on the subject from Deoband, and received from the records of that institution the copy of a fatwa signed by all the teachers of the Darul Uloom including Maulana Muhammad Shafi himself which is to the effect that those who do not believe in the sahabiyyat of Hazrat Siddiq Akbar and who are qazif of Hazrat Aisha Siddiqa and have been guilty of tehrif of Qur’an are kafirs. This opinion is also supported by Mr. Ibrahim Ali Chishti who has studied and knows his subject. He thinks the Shias are kafirs because they believe that Hazrat Ali shared the prophethood with our Holy Prophet. He refused to answer the question whether a person who being a Sunni changes his view and agrees with the Shia view would be guilty of irtidad so as to deserve the death penalty. According to the Shias all Sunnis are kafirs, and Ahl-i-Qur’an; namely, persons who consider hadith to be unreliable and therefore not binding, are unanimously kafirs and so are all independent thinkers. The net result of all this is that neither Shias nor Sunnis nor Deobandis nor Ahl-i-Hadith nor Barelvis are Muslims and any change from one view to the other must be accompanied in an Islamic State with the penalty of death if the Government of the State is in the hands of the party which considers the other party to be kafirs. And it does not require much imagination to judge of the consequences of this doctrine when it is remembered that no two ulama have agreed before us as to the definition of a Muslim. If the constituents of each of the definitions given by the ulama are given effect to, and subjected to the rule of ‘combination and permutation’ and the form of charge in the Inquisition’s sentence on Galileo is adopted mutatis mutandis as a model, the grounds on which a person may be indicted for apostasy will be too numerous to count.
In an earlier part of the report we have referred to the proscription of the ‘Ashshahab’, a pamphlet written by Maulana Shabbir Ahmad Usmani who later became Sheikh-ul-Islam-i-Pakistan. In that pamphlet the Maulana had attempted to show from the Qur’an, the sunna, the ijma’ and qayas that in Islam the punishment for apostasy (irtidad) simpliciter is death. After propounding the theological doctrine the Maulana had made in that document a statement of fact that in the time of the Caliph Siddiq-i-Akbar and the subsequent Caliphs vast areas of Arabia became repeatedly red with the blood of apostates. We are not called upon to express any opinion as to the correctness or otherwise of this doctrine but knowing that the suggestion to the Punjab Government to proscribe this pamphlet had come from the Minister for the Interior we have attempted to inquire of ourselves the reasons for Government’s taking a step which ex hypothesi amounted to condemning a doctrine which the Maulana had professed to derive from the Qur’an and the sunna. The death penalty for irtidad has implications of a far-reaching character and stamps Islam as a religion of fanatics, which punishes all independent thinking. The Qur’an again and again lays emphasis on reason and thought, advises toleration and preaches against compulsion in religious matters but the doctrine of irtidad as enunciated in this pamphlet strikes at the very root of independent thinking when it propounds the view that anyone who, being born a Muslim or having embraced Islam, attempts to think on the subject of religion with a view, if he comes to that conclusion, to choose for himself any religion he likes, has the capital penalty in store for him. With this implication Islam becomes an embodiment of complete intellectual paralysis. And the statement in the pamphlet that vast areas of Arabia were repeatedly bespattered with human blood, if true, could only lend itself to this inference that even when Islam was at the height of its splendour and held absolute sway in Arabia there were in that country a large number of people who turned away from that religion and preferred to die than to remain in that system. It must have been some such reaction of this pamphlet on the mind of the Minister for the Interior which prompted him to advise the Punjab Government to proscribe the pamphlet. Further the Minister who was himself well-versed in religious matters must have thought that the conclusion drawn by the author of the pamphlet which was principally based on the precedent mentioned in paras. 26, 27 and 28 of the Old Testament and which is only partially referred to in the Qur’an in the 54th verse of the Second Sura, could not be applicable to apostasy from Islam and that therefore the author’s opinion was in fact incorrect, there being no express text in the Qur’an for the death penalty for apostasy. On the contrary each of the two ideas, one underlying the six brief verses of Surat-ul-Kafiroon and the other the La Ikrah verse of the second Sura, has merely to be understood to reject as erroneous the view propounded in the ‘Ash-Shahab’. Each of the verses in Surat-ul-Kafiroon which contains thirty words and no verse of which exceeds six words, brings out a fundamental trait in man engrained in him since his creation while the La Ikrah verse, the relevant portion of which contains only nine words, states the rule of responsibility of the mind with a precision that cannot be surpassed. Both of these texts which are an early part of the Revelation are, individually and collectively, the foundation of that principle which human society, after centuries of conflict, hatred and bloodshed, has adopted in defining one of the most important fundamental rights of man. But our doctors would never dissociate chauvinism from Islam.
PROPAGATION OF OTHER RELIGIONS
Closely allied to the punishment for apostasy is the right of non-Muslims publicly to preach their religion. The principle which punishes an apostate with death must be applicable to public preaching of kufr and it is admitted by Maulana Abul Hasanat, Ghazi Siraj-ud-Din Munir and Master Taj-ud-Din Ansari, though the last subordinates his opinion to the opinion of the ulama, that any faith other than Islam will not be permitted publicly to be preached in the State. And Maulana Abul Ala Maudoodi, as will appear from his pamphlet ‘Punishment in Islam for an apostate’, has the same views on the subject.
Ghazi Siraj-ud-Din Munir, when questioned on this point, replied :— “Q.—What will you do with them (Ahmadis) if you were the head of the Pakistan State ? A.—I would tolerate them as human beings but will not allow them the right to preach their religion”.
The prohibition against public preaching of any non-Muslim religion must logically follow from the proposition that apostasy will be punished with death and that any attack on, or danger to Islam will be treated as treason and punished in the same way as apostasy.
JIHAD
Earlier we have pointed out that one of the doctrines on which the Musalmans and Ahmadis are at variance is that of jihad. This doctrine at once raises a host of other allied matters such as the meanings of ghazi, shahid, jihad-bis-saif, jihad fi sabili’llah, dar-ul-Islam, dar-ul-harb, hijrat, ghanima, khums and slavery, and the conflict or reconciliation of these conceptions with modern international problems such as aggression, genocide, international criminal jurisdiction, international conventions and rules of public international law.
An Islamic State is dar-ul-Islam, namely, a country where ordinances of Islam are established and which is under the rule of a Muslim sovereign. Its inhabitants are Muslims and also non-Muslims who have submitted to Muslim control and who under certain restrictions and without the possibility of full citizenship are guaranteed their lives and property by the Muslim State. They must, however, be people of Scriptures and may not be idolaters. An Islamic State is in theory perpetually at war with the neighbouring non-Muslim country, which at any time may become dar-ul-harb, in which case it is the duty of the Muslims of that country to leave it and to come over to the country of their brethren in faith. We put this aspect to Maulana Abul Ala Maudoodi and reproduce his views :—
“Q.—is a country on the border of dar-ul-Islam always qua an Islamic Statein the position of dar-ul-harb ? A.—No. In the absence of an agreement to the contrary, the Islamic State will be potentially at war with the non-Muslim neighbouring country. The non-Muslim country acquires the status of dar-ul-harb only after the Islamic State declares a formal war against it”.
According to Ghias-ul-Lughat, dar-ul-harb is a country belonging to infidels which has not been subdued by Islam, and the consequences of a country becoming darul-harb are thus stated in the Shorter Encyclopaedia of Islam :—
“When a country does become a dar-ul-harb, it is the duty of all Muslims to withdraw from it, and a wife who refuses to accompany her husband in this, is ipso facto divorced”.
Thus in case of a war between India and Pakistan, if the latter is an Islamic State, we must be prepared to receive forty million Muslims from across the border into Pakistan.
In fact, Maulana Abdul Haamid Badayuni, President, Jami’at-ul-Ulama-i- Pakistan, thinks that a case for hijrat already exists for the Musalmans of India. The following is his view on this subject :— “Q.—Do yon call your migration to Pakistan as hijrat in the religious sense ? A.—Yes”.
We shall presently point out why Mirza Ghulam Ahmad’s version of the doctrine of jihad is relied on as a ground for his and his community’s kufr, but before we do that it is necessary first to state how jihad has been or is understood by the Musalmans. There are various theories about jihad which vary from the crude notion of a megalomaniac moved by religious frenzy going out armed with sword and indiscriminately slaughtering non-Muslims in the belief that if he dies in the combat he becomes a shahid and if he succeeds in killing attains the status of a ghazi, to the conception that a Musalman throughout his life is pitted against kufr, kufr here being used in the sense of evil and wrong, and that his principal activity in life is to strive by argument a where necessary by force to spread Islam until it becomes a world religion. In the latter case he fights not for any personal end but because he considers such strife as a duty and an obligation which he owes to Allah and the only recompense for which is the pleasure of Allah. The Shorter Encyclopedia of Islam contains the following brief article on djihad :—
“DJIHAD (A), holy war. The spread of Islam by arms is a religious duty upon Muslims in general. It narrowly escaped being a sixth rukn, or fundamental duty, and is indeed still so regarded by the descendants of the Kharidjis. This position was reached gradually but quickly. In the Meccan Suras of the Qur’an patience under attack is taught ; no other attitude was possible. But at Medina the right to repel attack appears, and gradually it became a prescribed duty to fight against and subdue the hostile Meccans.
Whether Muhammad himself recognised that his position implied steady and unprovoked war against the unbelieving world until it was subdued to Islam may be in doubt. Traditions are explicit on the point ; but the Qur’anic passages speak always of the unbelievers who are to be subdued as dangerous or faithless. Still, the story of his writing to the powers around him shows that such a universal position was implicit in his mind, and it certainly developed immediately after his death, when the Muslim armies advanced out of Arabia. It is now a fard ala’l-kifaya, a duty in general on all male, free, adult Muslims, sane in mind and body and having means enough to reach the Muslim army, yet not a duty necessarily incumbent on every individual but sufficiently performed when done by a certain number. So it must continue to be done until the whole world is under the rule of Islam. It must be controlled or headed by a Muslim sovereign or imam. As the imam of the Shias is now invisible, they cannot have a djihad until he reappears. Further, the requirement will be met if such a sovereign makes an expedition once a year, or, even, in the later view, if he makes annual preparation for one. The people against whom the djihad is directed must first be invited to embrace Islam. On refusal they have another choice. They may submit to Muslim rule, become dhimmis (q. v.) and pay djizya and kharadj (q. v.) or fight. In the first case, their lives, families and property are assured to them, but they have a definitely inferior status, with no technical citizenship, and a standing only as protected wards. If they fight, they and their families may be enslaved and all their property seized as booty, four-fifths of which goes to the conquering army. If they embrace Islam, and it is open to them to do so even when the armies are face to face, they become part of the Muslim community with all its rights and duties. Apostates must be put to death. But if a Muslim country is invaded by unbelievers, the imam may issue a general summons calling all Muslims there to arms, and as the danger grows so may be the width of the summons until the whole Muslim world is involved. A Muslim who dies fighting in the path of Allah (fi sabil Allah) is martyr (shahid) and is assured of Paradise and of peculiar privileges there. Such a death was, in the early generations, regarded as the peculiar crown of a pious life. It is still, on occasions, a strong incitement, but when Islam ceased to conquer it lost its supreme value. Even yet, however, any war between Muslims and non-Muslims must be a djihad with its incitements and rewards. Of course, such modern movements as the so-called Mu’tazili in India and the Young Turk in Turkey reject this and endeavour to explain away its basis; but the Muslim masses still follow the unanimous voice of the canon lawyers. Islam must be completely made over before the doctrine of djihad can be eliminated”.
The generally accepted view is that the fifth verse to Sura-i-Tauba (Sura IX) abrogated the earlier verses revealed in Mecca which permitted the killing of kuffar only in self-defence. As against this the Ahmadis believe that no verso in the Qur’an was abrogated by another verse and that both sets of verses, namely, the Meccan verses and the relative verses in Sura-i-Tauba have different scopes and can stand together. This introduces the difficult controversy of nasikh and mansukh, with all its implications. It is argued on behalf of the Ahmadis that the doctrine of nasikh and mansukh is opposed to the belief in the existence of an original Scripture in Heaven, and that implicit in this doctrine is the admission that unless the verse alleged to be repealed was meant for a specific occasion and by the coming of that occasion fulfilled its purpose and thus spent itself, God did not know of the subsequent circumstances which would make the earlier verse inapplicable or lead to an undesired result.
The third result of this doctrine, it is pointed out, cuts at the very root of the claim that laws of Islam are immutable and inflexible because if changed circumstances made a new revelation necessary, any change in the circumstances subsequent to the completion of the revelation would make most of the revelation otiose or obsolete.
We are wholly incompetent to pronounce on the merits of this controversy but what has to be pointed out is the result to which the doctrine of jihad will lead if, as appears from the article in the Shorter Encyclopaedia of Islam and other writings produced before us including one by Maulana Abul Ala Maudoodi and another by Maulana Shabbir Ahmad Usmani, it involves the spread of Islam by arms and conquest. ‘Aggression’ and ‘genocide’ are now offences against humanity for which under sentences pronounced by different International tribunals at Nuremburg and Tokio the war lords of Germany and Japan had to forfeit their lives, and there is hardly any difference between the offences of aggression and genocide on the one hand and the doctrine of spread of Islam by arms and conquest on the other. An International Convention on genocide is about to be concluded but if the view of jihad presented to us is correct, Pakistan cannot be a party to it. And while the following verses in the Mecca Suras :—
Sura II, verses 190 and 193 :190. “Fight in the Cause of God Those who fight you,
But do not transgress limits ;
For God loveth not transgressors”.
193. “And fight them on
Until there is no more
Tumult or oppression,
And there prevail
Justice and faith in God ;
But if they cease,
Let there be no hostility
Except to those
Who practise oppression”.
Sura XXII, verses 39 and 40:
39. “To those against whom
War is made, permission
Is given (to fight) because
They are wronged;— and verily,
God is most Powerful
For their aid;—”
40. “(They are) those who have
Been expelled from their homes
In defiance of right,—
(For no cause) except
That they say, ‘Our Lord
Is God.’ Did not God
Check one set of people
By means of another,
There would surely have been
Pulled down monasteries, churches,
Synagogues, and mosques, in which
The name of God is commemorated
In abundant measure. God will
Certainly aid those who
Aid His (cause);—for verily
God is Full of Strength,
Exalted in Might,
(Able to enforce His Will),”
contain in them the sublime principle which international jurists have only faintly begun to discover, we must go on preaching that aggression is the chief characteristic of Islam. The law relating to prisoners of war is another branch of Islamic law which is bound to come in conflict with International Law.
As for instance, in matters relating to the treatment of prisoners of war, we shall have to be governed by Maulana Abul Ala Maudoodi’s view, assuming that view is based on the Qur’an and the sunna, which is as follows :—
“Q.—Is there a law of war in Islam? A.—Yes. Q.—Does it differ fundamentally from the modern International Law of war? A.—These two systems are based on a fundamental difference. Q.—What rights have non-Muslims who are taken prisoners of war in a jihad? A.—The Islamic law on the point is that if the country of which these prisoners are nationals pays ransom, they will be released. An exchange of prisoners is also permitted. If neither of these alternatives is possible, the prisoners will be converted into slaves for ever. If any such person makes an offer to pay his ransom out of his own earnings, he will be permitted to collect the money necessary for the fidya (ransom). Q.—Are you of the view that unless a Government assumes the form of an Islamic Government, any war declared by it is not a jihad? A.—No. A war may be declared to be a jihad if it is declared by a national Government of Muslims in the legitimate interests of the State. I never expressed the opinion attributed to me in Ex. D. E. 12:— “Raha yeh masala keh agar hukumat-i-Pakisten apni maujuda shukl-o-surat ke sath Indian Union ke sath apne mu’ahadat khatm kar-ke i’lan-i-jang bar bhi de to kya us-ki yeh jang jihad ke hukam men a-ja’egi ? Ap ne is bare men jo rae zahir ki hai woh bilkul darust hai – Jab-tak hukumat Islami nizam ko ikhtiyar kar-ke Islami nah ho jae us waqt tak us-ki kisi jang ko jihad kehna aisa hi hai jaisa kisi ghair Muslim ke Azad Kashmir ki fauj men bharti ho-kar larne ko jihad aur us-ki maut ko shahadat ka nam dediya jae – Maulana ka jo mudd’a hai woh yeh hai keh mu’ahadat ki maujudgi men to hukumat ya us-ke shehriyon ka is jang men sharik hona shar’-an ja’iz hi nahin – Agar hukumat mu’ahadat khatm kar-ke jang ka i’lan kar-de to hukumat ki jang to jihad phir bhi nahin hogi ta-an keh hukumat Islami nah ho jae.’
(translation)
‘The question remains whether, even if the Government of Pakistan, in its present form and structure, terminates her treaties with the Indian Union and declares war against her, this war would fall under the definition of jihad? The opinion expressed by him in this behalf is quite correct. Until such time as the Government becomes Islamic by adopting the Islamic form of Government, to call any of its wars a jihad would be tantamount to describing the enlistment and fighting of a non-Muslim on the side of the Azad Kashmir forces jihad and his death martyrdom. What the Maulana means is that, in the presence of treaties, it is against Shari’at, if the Government or its people participate in such a war. If the Government terminates the treaties and declares war, even then the war started by Government would not be termed jihad unless the Government becomes Islamic’.
About the view expressed in this letter being that of Maulana Abul Ala Maudoodi, there is the evidence of Mian Tufail Muhammad, the writer of the letter, who states: “Ex. D. E. 12 is a photostat copy of a letter which I wrote to someone whose name I do not now remember.”
Maulana Abul Hasanat Muhammad Ahmad Qadri’s view on this point is as
follows:— “Q.—Is there a law of war in Islam? A.—Yes. Q.—Does it differ in fundamentals from the present International Law? A.—Yes. Q.—What are the rights of a person taken prisoner in war? A.—He can embrace Islam or ask for aman, in which case he will be treated as a musta’min. If he does not ask for aman, he would be made a slave”. Similar is the opinion expressed by Mian Tufail Muhammad of Jam’at-i-Islami who says:— “Q.—Is there any law of war in Islamic laws? A.—Yes. Q.—If that comes into conflict with International Law, which will you follow? A.—Islamic law. Q.—Then please state what will be the status of prisoners of war captured by your forces? A.—I cannot reply to this off hand. I will have to study the point.” Of course ghanima (plunder) and khums (one-fifth) if treated as a necessary incident of jihad will be treated by international society as a mere act of brigandage.
REACTION ON MUSLIMS OF NON-MUSLIM STATES
The ideology on which an Islamic State is desired to be founded in Pakistan must have certain consequences for the Musalmans who are living in countries under non-Muslim sovereigns.
We asked Amir-i-Shari’at Sayyad Ataullah Shah Bukhari whether a Muslim could be a faithful subject of a non-Muslim State and reproduce his answer:— “Q.—In your opinion is a Musalman bound to obey orders of a kafirGovernment? A.—It is not possible that a Musalman should be faithful citizen of a non-MuslimGovernment. Q.—Will it be possible for the four crore of Indian Muslims to be faithful citizensof their State? A—No.”
The answer is quite consistent with the ideology which has been pressed before us, but then if Pakistan is entitled to base its Constitution on religion, the same right must be conceded to other countries where Musalmans are in substantial minorities or if they constitute a preponderating majority in a country where sovereignty rests with a non-Muslim community. We, therefore, asked the various ulama whether, if non-Muslims in Pakistan were to be subjected to this discrimination in matters of citizenship, the ulama would have any objection to Muslims in other countries being subjected to a similar discrimination. Their reactions to this suggestion are reproduced below:—
Maulana Abul Hasanat Sayyed Muhammad Ahmad Qadri, President, Jami’at-ul-Ulama-i-Pakistan:— “Q.—You will admit for the Hindus, who are in a majority in India, the right to have a Hindu religious State? A.—Yes. Q.—Will you have any objection if the Muslims are treated under that form of Government as malishes or shudras under the law of Manu? A.— No.”
Maulana Abul Ala Maudoodi :— “Q.—If we have this form of Islamic Government in Pakistan, will you permit Hindus to base their Constitution on the basis of their own religion? A—Certainly. I should have no objection even if the Muslims of India are treated in that form of Government as shudras and malishes and Manu’s laws are applied to them, depriving them of all share in the Government and the rights of a citizen. In fact such a state of affairs already exists in India.”
Amir-i-Shari’at Sayyad Ata Ullah Skak Bukhari :— “Q.—How many crores of Muslims are there in India? A.—Four crores. Q.—Have you any objection to the law of Manu being applied to them according to which they will have no civil right and will be treated as malishes and shudras? A.—I am in Pakistan and I cannot advise them.”
Mian Tufail Muhammad of Jama’at-i-Islami :— “Q.—What is the population of Muslims in the world? A.—Fifty crores. Q.—If the total population of Muslims of the world is 50 crores, as you say, and the number of Muslims living in Pakistan, Saudi Arabia, Yemen, Indonesia, Egypt, Persia, Syria, Lebanon, Trans-Jordan, Turkey and Iraq does not exceed 20 crores, will not the result of your ideology beto convert 30 crores of Muslims in the world into hewers of wood anddrawers of water? A.—My ideology should not affect their position. Q.—Even if they are subjected to discrimination on religious grounds and denied ordinary rights of citizenship ? A.—Yes.”
This witness goes to the extent of asserting that even if a non-Muslim Government were to offer posts to Muslims in the public services of the country, it will be their duty to refuse such posts.
Ghazi Siraj-ud-Din Munir :— “Q.—Do you want an Islamic State in Pakistan? A.—Surely. Q.—What will be your reaction if the neighbouring country was to found their political system on their own religion? A.—They can do it if they like. Q.—Do you admit for them the right to declare that all Muslims in India, areshudras and malishes with no civil rights whatsoever? A.—We will do our best to see that before they do it their political sovereignty is gone. We are too strong for India. We will be strongenough to prevent India from doing this. Q.—Is it a part of the religious obligations of Muslims to preach theirreligion? A—Yes. Q.—Is it a part of the duty of Muslims in India publicly to preach theirreligion? A.—They should have that right. Q.—What if the Indian State is founded on a religious basis and the right to preach religion is disallowed to its Muslim nationals? A —If India makes any such law, believer in the Expansionist movement as I am, I will march on India and conquer her.”
So this is the reply to the reciprocity of discrimination on religious grounds.
Master Taj-ud-Din Ansari :— “Q.—Would you like to have the same ideology for the four crores of Muslims in India as you are impressing upon the Muslims of Pakistan? A.—That ideology will not let them remain in India for one minute. Q.—Does the ideology of a Muslim change from place to place and from time to time? A.—No. Q.—Then why should not the Muslims of India have the same ideology as you have? A.—They should answer that question.”
The ideology advocated before us, if adopted by Indian Muslims, will completely
disqualify them for public offices in the State, not only in India but in other countries also which are under a non-Muslim Government. Muslims will become perpetual suspects everywhere and will not be enrolled in the army because according to this ideology, in case of war between a Muslim country and a non-Muslim country, Muslim soldiers of the non-Muslim country must either side with the Muslim country or surrender their posts.
The following is the view expressed by two divines whom we questioned on this point:—
Maulana Abul Hasanat Sayyed Muhammad Ahmad Qadri, President, Jami’at-ul-
Ulama-i-Pakistan :—
“Q.—What will be the duty of Muslims in India in case of war between India
and Pakistan?
A.—Their duty is obvious, namely, to side with us and not to fight against us
on behalf of India.”
Maulana Abul Ala Maudoodi : —
“Q.—What will be the duty of the Muslims in India in case of war between
India and Pakistan?
A.—Their duty is obvious, and that is not to fight against Pakistan or to do
anything injurious to the safety of Pakistan.”
OTHER INCIDENTS
Other incidents of an Islamic State are that all sculpture, playing of cards, portrait
painting, photographing human beings, music, dancing, mixed acting, cinemas and
theatres will have to be closed.
Thus says Maulana Abdul Haleem Qasimi, representative of Jami’at-ul-Ulama-i-Pakistan: —
“Q.—What are your views on tashbih and tamseel ?
A.—You should ask me a concrete question.
Q.—What are your views on lahw-o-la’b?
A.—The same is my reply to this question.
Q.—What are your views about portrait painting?
A.—There is nothing against it if any such painting becomes necessary.
Q.—What about photography?
A.—My reply to it is the same as the reply regarding portrait painting.
Q.—What about sculpture as an art?
A.—It is prohibited by our religion.
Q.—Will you bring playing of cards in lohw-o-la’b?
A.—Yes, it will amount to lahw-o-la’b.
Q.—What about music and dancing?
A.—It is all forbidden by our religion.
Q.—What about drama and acting?
A —It all depends on what kind of acting you mean. If it involves immodesty
and intermixture of sexes, the Islamic law is against it.
Q.—If the State is founded on your ideals, will you make a law stopping
portrait painting, photographing of human beings, sculpture, playing
of cards, music, dancing, acting and all cinemas and theatres?
A.—Keeping in view the present form of these activities, my answer is in the affirmative.”
Maulana Abdul Haamid Badayuni considers it to be a sin (ma’siyat) on the part of
professors of anatomy to dissect dead bodies of Muslims to explain points of anatomy to the students.
The soldier or the policeman will have the right, on grounds of religion, to disobey a command by a superior authority. Maulana Abul Hasanat’s view on this is as follows :—
“I believe that if a policeman is required to do something which we consider to be contrary to our religion, it should be the duty of the policeman to disobey the authority. The same would be my answer if ‘army’ were substituted for ‘police’.
Q.—You stated yesterday that if a policeman or a soldier was required by a
superior authority to do what you considered to be contrary to religion, it would be the duty of that policeman or the soldier to disobey such authority. Will you give the policeman or the soldier the right of himself determining whether the command he is given by his superior authority is contrary to religion ?
A.—Most certainly.
Q.—Suppose there is war between Pakistan and another Muslim country and the soldier feels that Pakistan is in the wrong; and that to shoot a soldier of other country is contrary to religion. Do you think he would be justified in disobeying his commanding officer ?
A.—In such a contingency the soldier should take a fatwa of the ‘ulama’.”
We have dwelt at some length on the subject of Islamic State not because we intended to write a thesis against or in favour of such State but merely with a view to presenting a clear picture of the numerous possibilities that may in future arise if true causes of the ideological confusion which contributed to the spread and intensity of the disturbances are not precisely located. That such confusion did exist is obvious because otherwise Muslim Leaguers, whose own Government was in office, would not have risen against it; sense of loyalty and public duty would not have departed from public officials who went about like maniacs howling against their own Government and officers; respect for property and human life would not have disappeared in the common man who with no scruple or compunction began freely to indulge in loot, arson and murder; politicians would not have shirked facing the men who had installed them in their offices; and administrators would not have felt hesitant or diffident in performing what was their obvious duty. If there is one thing which has been conclusively demonstrated in this inquiry, it is that provided you can persuade the masses to believe that something they are asked to do is religiously right or enjoined by religion, you can set them to any course of action, regardless of all considerations of discipline, loyalty, decency, morality or civic sense.
Pakistan is being taken by the common man, though it is not, as an Islamic State. This belief has been encouraged by the ceaseless clamour for Islam and Islamic State that is being heard from all quarters since the establishment of Pakistan. The phantom of an Islamic State has haunted the Musalman throughout the ages and is a result of the memory of the glorious past when Islam rising like a storm from the least expected quarter of the world—wilds of Arabia—instantly enveloped the world, pulling down from their high pedestal gods who had ruled over man since the creation, uprooting centuries old institutions and superstitions and supplanting all civilisations that had been built on an enslaved humanity. What is 125 years in human history, nay in the history of a people, and yet during this brief period Islam spread from the Indus to the Atlantic and Spain, and from the borders of China to Egypt, and the sons of the desert installed themselves in all old centres of civilisation—in Ctesiphon, Damascus, Alexandria, India and all places associated with the names of the Sumerian and the Assyrian civilisations. Historians have often posed the question : what would have been the state of the world today if Muawiya’s siege of Constantinople had succeeded or if the proverbial Arab instinct for plunder had not suddenly seized the mujahids of Abdur Rahman in their fight against Charles Martel on the plains of Tours in Southern France. May be Muslims would have discovered America long before Columbus did and the entire world would have been Moslemised; may be Islam itself would have been Europeanised. It is this brilliant achievement of the Arabian nomads, the like of which the world had never seen before, that makes the Musalman of today live in the past and yearn for the return of the glory that was Islam. He finds himself standing on the crossroads, wrapped in the mantle of the past and with the dead weight of centuries on his back, frustrated and bewildered and hesitant to turn one corner or the other. The freshness and the simplicity of the faith, which gave determination to his mind and spring to his muscle, is now denied to him. He has neither the means nor the ability to conquer and there are no countries to conquer. Little does he understand that the forces, which are pitted against him, are entirely different from those against which early Islam, had to fight, and that on the clues given by his own ancestors human mind has achieved results which he cannot understand. He therefore finds himself in a state of helplessness, waiting for some one to come and help him out of this morass of uncertainty and confusion. And he will go on waiting like this without anything happening. Nothing but a bold re-orientation of Islam to separate the vital from the lifeless can preserve it as a World Idea and convert the Musalman into a citizen of the present and the future world from the archaic in congruity that he is today. It is this lack of bold and clear thinking, the inability to understand and take decisions which has brought about in Pakistan a confusion which will persist and repeatedly create situations of the kind we have been inquiring into until our leaders have a clear conception of the goal and of the means to reach it. It requires no imagination to realise that irreconcilables remain irreconcilable even if you believe or wish to the contrary. Opposing principles, if left to themselves, can only produce confusion and disorder, and the application of a neutralising agency to them can only produce a dead result. Unless, in case of conflict between two ideologies, our leaders have the desire and the ability to elect, uncertainty must continue. And as long as we rely on the hammer when a file is needed and press Islam into service to solve situations it was never intended to solve, frustration and disappointment must dog our steps. The sublime faith called Islam will live even if our leaders are not there to enforce it. It lives in the individual, in his soul and outlook, in all his relations with God and men, from the cradle to the grave, and our politicians should understand that if Divine commands cannot make or keep a man a Musalman, their statutes will not….
Subroto Roy thinks the flare-up of the Telangana issue has one and only one positive consequence: it brings home to New Delhi’s ruling elite that there are real political questions in India, and not everything can be left to spin-doctors and lobbyists to handle.
Subroto Roy finds it odd in diplomatic law and protocol that two American Presidents in succession have said respectively to the same Indian Prime Minister “You’re a good man” and a person of “honesty and integrity”.
Subroto Roy thinks Asia (from Israel-Palestine to Japan & Indonesia) needs its own Metternich and Congress of Vienna, but won’t get it and hence may remain many many decades behind Europe in political development.(And why Asia won’t get what Europe did may be because Europe did what it did.)
Subroto Roy agrees with Professor Juan Cole’s summary position: “India and Russia want an Obama ‘surge’ in Afghanistan because they are afraid that if Muslim extremists take over the country, that development could threaten their own security. China is more or less bankrolling the Afghanistan War…In contrast, Pakistan does not seem… eager for the further foreign troops, in part because it wants to project power and influence into Afghanistan itself”. But he would add Russia, China, India and Iran too are free-riders from the military standpoint (though India has built power-stations, roads etc for civilian economic development), while Pakistan remains schizophrenic as to whether it wishes to define itself by the lights of Iqbal and Jinnah or by the lunacy of Rahmat Ali.
P Chidambaram may recall our brief interaction at the residence of the late Shri Rajiv Gandhi in September-October 1990, and also my visit in July 1995 when he was a member of Narasimha Rao’s Government.
This came to be followed by “Law, Justice and J&K”, “History of Jammu & Kashmir”, “Pakistan’s Allies”, “What to tell Musharraf” and a few others. The purpose of this open letter is to describe that solution which provides, I believe, the only just and lawful path available to the resolution of what has been known universally as the Kashmir problem.
Very briefly, it involves recognizing that the question of lawful territorial sovereignty in J&K is logically distinct from the question of the choice of nationality by individual inhabitants. The solution requires
(a) acknowledging that the original legal entity in the world system of nations known as Jammu & Kashmir arose on March 16 1846 and ceased to exist on or about October 22 1947; that the military contest that commenced on the latter date has in fact resulted, given all particular circumstances of history, in the lawful and just outcome in international law;
(b) offering all who may be Indian nationals or stateless and who presently live under Article 370, a formal choice of nationality between the Republics of India, Iran, Afghanistan and Pakistan: citizen-by-citizen, without fear or favour, under conditions of full information, individual privacy and security; any persons who voluntarily choose to renounce Indian nationality in such private individual decisions would be nevertheless granted lawful permanent residence in the Indian Republic and J&K in particular.
In other words, the dismemberment of the original J&K State and annexation of its territories by the entities known today as the Republic of Pakistan and Republic of India that occurred since October 22 1947, as represented first by the 1949 Ceasefire Line and then by the 1972 Line of Control, is indeed the just and lawful outcome prevailing in respect of the question of territorial sovereignty and jurisdiction. The remaining democratic question has to do with free individual choice of nationality by inhabitants, under conditions of full information and privacy, citizen-by-citizen, with the grant of permanent residency rights by the Indian Republic to persons under its jurisdiction in J&K who might wish to choose, for deeply personal individual reasons, not to remain Indian nationals but become Afghan, Iranian or Pakistani nationals instead (or remain stateless). Pakistan has said frequently its sole concern has been the freedom of Muslims of J&K under Indian rule, and any such genuine concern shall have been thereby fully met by India. Indeed if Pakistan agreed to act similarly this entire complex mortal problem of decades shall have begun to be resolved most appropriately. Pakistan and India are both wracked by corruption, poverty and bad governance, and would be able to mutually draw down military forces pit against one another everywhere, so as to begin to repair the grave damage to their fiscal health caused over decades by the deleterious draining away of vast public resources.
The full reasoning underlying this, which I believe to be the only lawful, just, efficient and stable solution that exists, is thoroughly explained in the following six articles. The first five, “Solving Kashmir”, “Law, Justice & J&K”, “History of J&K”, and “Pakistan’s Allies”, “What to Tell Musharraf” were published in The Statesman in 2005-2006 and are marked ONE, TWO, THREE, FOUR and FIVE below, and are also available elsewhere here. The sixth “An Indian Reply to President Zardari”, marked SIX, was published for the first time here following the Mumbai massacres.
I believe careful reflection upon this entire body of reasoning may lead all reasonable men and women to a practically unanimous consensus about this as the appropriate course of action; if such a consensus happened to arise, the implementation of the solution shall only be a matter of (relatively) uncomplicated procedural detail.
(This article has its origins in a paper “Towards an Economic Solution for Kashmir” which circulated in Washington DC in 1992-1995, including at the Indian and Pakistani embassies and the Carnegie Endowment, and was given as an invited lecture at the Heritage Foundation on June 23 1998. It should be read along with other articles also republished here, especially “History of J&K”, “Law, Justice and J&K” , “Understanding Pakistan”, “Pakistan’s Allies” and “What to Tell Musharraf”. The Washington paper and lecture itself originated from my ideas in the Introduction to Foundations of Pakistan’s Political Economy, edited by WE James and myself in the University of Hawaii project on Pakistan 1986-1992.)
I. Give Indian `Green Cards’ to the Hurriyat et al
India, being a liberal democracy in its constitutional law, cannot do in Jammu & Kashmir what Czechoslovakia did to the “Sudeten Germans” after World War II. On June 18 1945 the new Czechoslovakia announced those Germans and Magyars within their borders who could not prove they had been actively anti-fascist before or during the War would be expelled — the burden of proof was placed on the individual, not the State. Czechoslovakia “transferring” this population was approved by the Heads of the USA, UK and USSR Governments at Potsdam on August 2 1945. By the end of 1946, upto two million Sudeten Germans were forced to flee their homes; thousands may have died by massacre or otherwise; 165,000 remained who were absorbed as Czechoslovak citizens. Among those expelled were doubtless many who had supported Germany and many others who had not — the latter to this day seek justice or even an apology in vain. Czechoslovakia punished none of its nationals for atrocities, saying it had been revenge for Hitler’s evil (”badla” in Bollywood terms) and the post Cold War Czech Government too has declined to render an apology. Revenge is a wild kind of justice (while justice may be a civilised kind of revenge).
India cannot follow this savage precedent in international law. Yet we must recognise there are several hundred and up to several hundred thousand persons on our side of the boundary in the State of Jammu & Kashmir who do not wish to be Indian nationals. These people are presently our nationals ius soli, having been born in territory of the Indian Republic, and/or ius sanguinis, having been born of parents who are Indian nationals; or they may be “stateless” whom we must treat in accordance with the 1954 Convention on Stateless Persons. The fact is they may not wish to carry Indian passports or be Indian nationals.
In this respect their juridical persons resemble the few million “elite” Indians who have in the last few decades freely placed their hands on their hearts and solemnly renounced their Indian nationality, declaring instead their individual fidelity to other nation-states — becoming American, Canadian or Australian citizens, or British subjects or nationals of other countries. Such people include tens of thousands of the adult children of India’s metropolitan “elite”, who are annually visited abroad in the hot summer months by their Indian parents and relatives. They are daughters and sons of New Delhi’s Government and Opposition, of retired generals, air marshals, admirals, ambassadors, cabinet secretaries, public sector bureaucrats, private sector businessmen, university professors, journalists, doctors and many others. India’s most popular film-actress exemplified this “elite” capital-flight when, after a tireless search, she chose a foreign husband and moved to California.
The difference in Jammu & Kashmir would be that those wishing to renounce Indian nationality do not wish to move to any other place but to stay as and where they are, which is in Kashmir Valley or Jammu. Furthermore, they may wish, for whatever reason, to adopt, if they are eligible to do so, the nationality of e.g. the Islamic Republic of Afghanistan or the Islamic Republic of Iran or the Islamic Republic of Pakistan.
They may believe themselves descended from Ahmad Shah Abdali whose Afghans ruled or mis-ruled Kashmir Valley before being defeated by Ranjit Singh’s Sikhs in 1819. Or they may believe themselves of Iranian descent as, for example, are the Kashmiri cousins of the late Ayatollah Khomeini. Or they may simply have wished to be, or are descended from persons who had wished to be on October 26 1947, citizens of the then-new British Dominion of Pakistan — but who came to be prevented from properly expressing such a desire because of the war-like conditions that have prevailed ever since between India and Pakistan. There may be even a few persons in Laddakh who are today Indian nationals but who wish to be considered Tibetans instead; there is, however, no Tibetan Republic and it does not appear there is going to be one.
India, being a free and self-confident country, should allow, in a systematic lawful manner, all such persons to fulfil their desires, and furthermore, should ensure they are not penalised for having expressed such “anti-national” desires or for having acted upon them. Sir Mark Tully, the British journalist, is an example of someone who has been a foreign national who has chosen to reside permanently in the Republic of India — indeed he has been an exemplary permanent resident of our country. There are many others like him. There is no logical reason why all those persons in Jammu & Kashmir who do wish not to be Indians by nationality cannot receive the same legal status from the Indian Republic as has been granted to Sir Mark Tully. There are already thousands of Sri Lankan, Bangladeshi and Nepalese nationals who are lawful permanent residents in the Indian Republic, and who travel back and forth between India and their home countries. There is no logical reason why the same could not be extended to several hundred or numerous thousand people in Jammu & Kashmir who may wish to not accept or to renounce their Indian nationality (for whatever personal reason) and instead become nationals, if they are so eligible, of the Islamic Republics of Afghanistan, Iran or Pakistan, or, for that matter, to remain stateless. On the one hand, their renunciation of Indian nationality is logically equivalent to the renunciation of Indian nationality by the adult children of India’s “elite” settled in North America and Western Europe. On the other hand, their wish to adopt, if they are eligible, a foreign nationality, such as that of Afghanistan, Iran or Pakistan, and yet remain domiciled in Indian territory is logically equivalent to that of many foreign nationals domiciled in India already like Sir Mark Tully.
Now if you are a permanent resident of some country, you may legally have many, perhaps most, but certainly not all the rights and duties of nationals of that country. e.g., though you will have to pay all the same taxes, you may not be allowed to (or be required to) vote in national or provincial elections but you may in local municipal elections. At the same time, permanently residing foreign nationals are supposed to be equal under the law and have equal access to all processes of civil and criminal justice. (As may be expected though from human frailty, even the federal courts of the USA can be notorious in their injustice and racism towards “Green Card” holders relative to “full” American citizens.) Then again, as a permanently resident foreigner, while you will be free to work in any lawful trade or profession, you may not be allowed to work in some or perhaps any Government agencies, certainly not the armed forces or the police. Many Indians in the USA were engineering graduates, and because many engineering jobs or contracts in the USA are related to the US armed forces and require US citizens only, it is commonplace for Indian engineers to renounce their Indian nationality and become Americans because of this. Many Indian-American families have one member who is American, another Indian, a third maybe Canadian, a fourth Fijian or British etc.
The same can happen in the Indian State of Jammu & Kashmir if it evolves peacefully and correctly in the future. It is quite possible to imagine a productive family in a peaceful Kashmir Valley of the future where one brother is an officer in the Indian Armed Forces, another brother a civil servant and a sister a police officer of the J&K State Government, another sister being a Pakistani doctor, while cousins are Afghan or Iranian or “stateless” businessmen. Each family-member would have made his/her choice of nationality as an individual given the circumstances of his/her life, his/her personal comprehension of the facts of history, his/her personal political and/or religious persuasions, and similar deeply private considerations. All would have their children going to Indian schools and being Indian citizens ius soli and/or ius sanguinis. When the children grow up, they would be free to join, if they wished, the existing capital flight of other Indian adult children abroad and there renounce their Indian nationality as many have come to do.
II Revealing Choices Privately with Full Information
For India to implement such a proposal would be to provide an opportunity for all those domiciled in Kashmir Valley, Jammu and Laddakh to express freely and privately as individuals their deepest wishes about their own identities, in a confidential manner, citizen by citizen, case by case. This would thereby solve the fundamental democratic problem that has been faced ever since the Pakistani attack on the original State of Jammu & Kashmir commenced on October 22 1947, which came to be followed by the Rape of Baramulla — causing the formal accession of the State to the then-new Dominion of India on October 26 1947.
A period of, say, 30 months may be announced by the Government of India during which full information would be provided to all citizens affected by this change, i.e. all those presently governed by Article 370 of the Indian Constitution. The condition of full information may include, for example, easy access to Afghan, Iranian and Pakistani newspapers in addition to access to Indian media. Each such person wishing to either remain with Indian nationality (by explicitly requesting an Indian passport if he/she does not have one already — and such passports can be printed in Kashmiri and Urdu too), or to renounce Indian nationality and either remain stateless or adopt, if he/she is so eligible, the nationality of e.g. Afghanistan, Iran, or Pakistan, should be administratively assisted by the Government of India to make that choice.
In particular, he/she should be individually, confidentially, and without fear or favour assured and informed of his/her new rights and responsibilities. For example, a resident of Kashmir Valley who chooses to become a Pakistani citizen, such as Mr Geelani, would now enjoy the same rights and responsibilities in the Indian Republic that Mr Tully enjoys, and at the same time no longer require a visa to visit Pakistan just as Mr Tully needs no visa to enter Britain. In case individual participants in the Hurriyat choose to renounce Indian nationality and adopt some other, they would no longer be able to legally participate in Indian national elections or J&K’s State elections. That is something which they say they do not wish to do in any case. Those members of the Hurriyat who chose e.g. Pakistani nationality while still residing in Jammu & Kashmir, would be free to send postal ballots or cross the border and vote in Pakistan’s elections if and when these occur. There are many Canadians who live permanently in the USA who cross home to Canada in order to cast a ballot.
After the period of 30 months, every person presently under Article 370 of the Indian Constitution would have received a full and fair opportunity to privately and confidentially reveal his/her preference or choice under conditions of full information. “Partition”, “Plebiscite”, and “Military Decision” have been the three alternatives under discussion ever since the National Conference of Sheikh Mohammad Abdullah and his then-loyal Deputy, Bakshi Ghulam Mohammad, helped the Indian Army and Air Force in 1947-1948 fight off the savage attack against Jammu & Kashmir State that had commenced from Pakistan on October 22 1947. When, during the Pakistani attack, the Sheikh and Bakshi agreed to the Muslim Conference’s demand for a plebiscite among the people, the Pakistanis balked — the Sheikh and Bakshi then withdrew their offer and decisively and irrevocably chose to accede to the Indian Union. The people of Jammu & Kashmir, like any other, are now bound by the sovereign political commitments made by their forebears. Even so, given the painful mortal facts of the several decades since, the solution here proposed if properly implemented would be an incomparably more thorough democratic exercise than any conceivable plebiscite could ever have been.
Furthermore, regardless of the outcome, it would not entail any further “Partition” or population “transfer” which inevitably would degenerate into a savage balkanization, and has been ruled out as an unacceptable “deal-breaker” by the Indian Republic. Instead, every individual person would have been required, in a private and confidential decision-making process, to have chosen a nationality or to remain stateless — resulting in a multitude of cosmopolitan families in Jammu & Kashmir. But that is something commonplace in the modern world. Properly understood and properly implemented, we shall have resolved the great mortal problem we have faced for more than half a century, and Jammu & Kashmir can finally settle into a period of peace and prosperity. The boundary between India and Pakistan would have been settled by the third alternative mentioned at the time, namely, “Military Decision”.
III. Of Flags and Consulates in Srinagar and Gilgit
Pakistan has demanded its flag fly in Srinagar. This too can happen though not in the way Pakistan has been wishing to see it happen. A Pakistan flag might fly in the Valley just as might an Afghan and Iranian flag as well. Pakistan has wished its flag to fly as the sovereign over Jammu & Kashmir. That is not possible. The best and most just outcome is for the Pakistani flag to fly over a recognised Pakistani consular or visa office in Srinagar, Jammu and Leh. In diplomatic exchange, the Indian tricolour would have to fly over a recognised Indian consular or visa office in Muzaffarabad, Gilgit and Skardu.
Pakistan also may have to act equivalently with respect to the original inhabitants of the territory of Jammu & Kashmir that it has been controlling — allowing those people to become Indian nationals if they so chose to do in free private decisions under conditions of full information. In other words, the “Military Decision” that defines the present boundary between sovereign states must be recognised by Pakistan sincerely and permanently in a Treaty relationship with India — and all of Pakistan’s official and unofficial protégés like the Hurriyat and the “United Jehad Council” would have to do the same. Without such a sovereign commitment from the Government of Pakistan, as shown by decisive actions of lack of aggressive intent (e.g. as came to be implemented between the USA and USSR), the Government of India has no need to involve the Government of Pakistan in implementing the solution of enhancing free individual choice of nationality with regard to all persons on our side of the boundary.
The “Military Decision” regarding the sovereign boundary in Jammu & Kashmir will be so recognised by all only if it is the universally just outcome in international law. And that in fact is what it is.
The original Jammu & Kashmir State began its existence as an entity in international law long before the present Republics of India and Pakistan ever did. Pakistan commences as an entity on August 14 1947; India commences as an entity of international law with its signing of the Treaty of Versailles on June 20 1918. Jammu & Kashmir began as an entity on March 16 1846 — when the Treaty of Amritsar was signed between Gulab Singh Dogra and the British, one week after the Treaty of Lahore between the British and the defeated Sikh regency of the child Daleep Singh.
Liaquat Ali Khan and Zafrullah Khan both formally challenged on Pakistan’s behalf the legitimacy of Dogra rule in Jammu & Kashmir since the Treaty of Amritsar. The Pakistani Mission to the UN does so even today. The Pakistanis were following Sheikh Abdullah and Jawaharlal Nehru himself, who too had at one point challenged Dogra legitimacy in the past. But though the form of words of the Pakistan Government and the Nehru-Abdullah position were similar in their attacks on the Treaty of Amritsar, their underlying substantive reasons were as different as chalk from cheese. The Pakistanis attacked the Dogra dynasty for being Dogra — i.e. because they were Hindus and not Muslims governing a Muslim majority. Nehru and Abdullah denounced monarchic autocracy in favour of mass democracy, and so attacked the Dogra dynasty for being a dynasty. All were wrong to think the Treaty of Amritsar anything but a lawful treaty in international law.
Furthermore, in this sombre political game of great mortal consequence, there were also two other parties who were, or appeared to be, in favour of the dynasty: one because the dynasty was non-Muslim, the other, despite it being so. Non-Muslim minorities like many Hindus and Sikhs in the business and governmental classes, saw the Dogra dynasty as their protector against a feared communalist tyranny arising from the Sunni Muslim masses of Srinagar Valley, whom Abdullah’s rhetoric at Friday prayer-meetings had been inciting or at least awakening from slumber. At the same time, the communalists of the Muslim Conference who had broken away from Abdullah’s secular National Conference, sought political advantage over Abdullah by declaring themselves in favour of keeping the dynasty — even elevating it to become an international sovereign, thus flattering the already pretentious potentate that he would be called “His Majesty” instead of merely “His Highness”. The ancestry of today’s Hurriyat’s demands for an independent Jammu & Kashmir may be traced precisely to those May 21-22 1947 declarations of the Muslim Conference leader, Hamidullah Khan.
Into this game stumbled the British with all the mix of cunning, indifference, good will, impatience, arrogance and pomposity that marked their rule in India. At the behest of the so-called “Native Princes”, the 1929 Butler Commission had hinted that the relationship of “Indian India” to the British sovereign was conceptually different from that of “British India” to the British sovereign. This view was adopted in the Cabinet Mission’s 12 May 1946 Memorandum which in turn came to be applied by Attlee and Mountbatten in their unseemly rush to “Divide and Quit” India in the summer of 1947.
It created the pure legal illusion that there was such a thing as “Lapse of Paramountcy” at which Jammu & Kashmir or any other “Native State” of “Indian India” could conceivably, even for a moment, become a sovereign enjoying the comity of nations — contradicting Britain’s own position that only two Dominions, India and Pakistan, could ever be members of the British Commonwealth and hence members of the newly created UN. British pusillanimity towards Jammu & Kashmir’s Ruler had even extended to making him a nominal member of Churchill’s War Cabinet because he had sent troops to fight in Burma. But the legal illusion had come about because of a catastrophic misunderstanding on the part of the British of their own constitutional law.
The only legal scholar who saw this was B R Ambedkar in a lonely and brilliant technical analysis released to the press on June 17 1947. No “Lapse of Paramountcy” over the “Native Princes” of Indian India could occur in constitutional law. Paramountcy over Indian India would be automatically inherited by the successor state of British India at the Transfer of Power. That successor state was the new British Dominion of India as well as (when it came to be finalised by Partition from India) the new British Dominion of Pakistan (Postscript: the deleted words represent a mistake made in the original paper, corrected in “Law, Justice & J&K” in view of the fact the UN in 1947 deemed India alone the successor state of British India and Pakistan a new state in the world system). A former “Native Prince” could only choose to which Dominion he would go. No other alternative existed even for a single logical moment. Because the British had catastrophically failed to comprehend this aspect of their own constitutional law, they created a legal vacuum whereby between August 15 and October 22-26 1947, Jammu & Kashmir became a local and temporary sovereign recognised only by the Dominion of Pakistan (until October 22) and the Dominion of India (until October 26). But it was not a globally recognised sovereign and was never going to be such in international law. This was further proved by Attlee refusing to answer the J&K Prime Minister’s October 18 1947 telegram.
All ambiguity came to end with the Pakistani attack of October 22 1947, the Rape of Baramulla, the secession of an “Azad Kashmir”declared by Sardar Ibrahim, and the Pakistani coup détat in Gilgit on October 31 1947 followed by the massacre of Sikh soldiers of the J&K Army at Bunji. With those Pakistani actions, Gulab Singh’s Jammu & Kashmir State, founded on March 16 1846 by the Treaty of Amritsar, ceased to logically exist as an entity in international law and fell into a state of ownerless anarchy. The conflict between Ibrahim’s Muslim communalists backed by the new Dominion of Pakistan and Abdullah’s secularists backed by the new Dominion of India had become a civil war within a larger intra-Commonwealth war that itself was almost a civil war between forces of the same military.
Jammu & Kashmir territory had become ownerless. The Roman Law which is at the root of all municipal and international law in the world today would declare that in the ownership of such an ownerless entity, a “Military Decision” was indeed the just outcome. Sovereignty over the land, waters, forests and other actual and potential resources of the erstwhile State of Jammu & Kashmir has become divided by “Military Decision” between the modern Republics of India and Pakistan. By the proposal made herein, the people and their descendants shall have chosen their nationality and their domicile freely across the sovereign boundary that has come to result.
TWO LAW, JUSTICE AND J&K by Subroto Roy First published in two parts in The Sunday Statesman, July 2 2006 and The Statesman July 3 2006 http://www.thestatesman.net Editorial Page Special Article
I.
For a solution to J&K to be universally acceptable it must be seen by all as being lawful and just. Political opinion in Pakistan and India as well as all people and parties in J&K ~ those loyal to India, those loyal to Pakistan, and any others ~ will have to agree that, all things considered, such is the right course of action for everyone today in the 21st Century, which means too that the solution must be consistent with the facts of history as well as account reasonably for all moral considerations.
On August 14, 1947, the legal entity known as “British India”, as one of its final acts, and based on a sovereign British decision made only two months earlier, created out of some of its territory a new State defined in international law as the “Dominion of Pakistan”. British India extinguished itself the very next day, and the newly independent “Dominion of India” succeeded to all its rights and obligations in international law. As the legal successor of the “India” which had signed the Treaty of Versailles in 1919 and the San Francisco Declaration of 1945, the Dominion of India was already a member of the new UN as well as a signatory to many international treaties. By contrast, the Dominion of Pakistan had to apply afresh to sign treaties and become a member of international organisations. The theory put forward by Argentina that two new States, India and Pakistan, had been created ab initio, came to be rejected and was withdrawn by Argentina. Instead, Pakistan with the wholehearted backing of India was made a member of the UN, with all except Afghanistan voting in favour. (Afghanistan’s exceptional vote signalled presence of conflict over the Durand Line and idea of a Pashtunistan; Dr Khan Sahib and Abdul Ghaffar Khan were imprisoned by the Muslim League regime of NWFP which later supported the tribesmen who attacked J&K starting October 22, 1947; that conflict remains unresolved to this day, even after the American attack on the Taliban, the restart of a constitutional process in Afghanistan, and the purported mediation of US Secretary of State Condoleeza Rice.)
Zafrullah Khan, Pakistan’s distinguished first ambassador to the UN, claimed in September 1947: “Pakistan is not a new member of UNO but a successor to a member State which was one of the founders of the Organisation.” He noted that he himself had led India to the final session of the League of Nations in Geneva in 1939, and he wished to say that Pakistan had been present “as part of India… under the latter name” as a signatory to the Treaty of Versailles. This was, however, logically impossible. The Treaty of Versailles long predated (1) Mohammad Iqbal’s Allahabad Address which conceptualised for the first time in the 20th Century a Muslim State in Northwest India; (2) Rahmat Ali’s invention of the word “PAKSTAN” on the top floor of a London omnibus; (3) M. A. Jinnah and Fazlul Haq’s Lahore Resolution; and (4) the final British decision of June 3, 1947 to create by Partition out of “British India” a Dominion named Pakistan. Pakistan could not have acted in international law prior to having come into being or been created or even conceived itself. Zafrullah Khan would have been more accurate to say that the history of Pakistanis until August 14, 1947 had been one in common with that of their Indian cousins ~ or indeed their Indian brothers, since innumerable North Indian Muslim families came to be literally partitioned, with some brothers remaining Indians while other brothers became Pakistanis.
Pakistan was created at the behest of Jinnah’s Muslim League though with eventual agreement of the Indian National Congress (a distant ancestor of the political party going by the same name today). Pakistan arose not because Jinnah said Hindus and Muslims were “two nations” but because he and his League wished for a State where Muslims would find themselves ruled by fellow-Muslims and feel themselves part of a pan-Islamic culture. Yet Pakistan was intended to be a secular polity with Muslim-majority governance, not an Islamic theocracy. That Pakistan failed to become secular was exemplified most poignantly in the persecution Zafrullah himself later faced in his personal life as an Ahmadiya, even while he was Pakistan’s Foreign Minister. (The same happened later to Pakistan’s Nobel-winning physicist Abdus Salaam.) Pakistan was supposed to allow the genius of Indo-Muslim culture to flourish, transplanted from places like Lucknow and Aligarh which would never be part of it. In fact, the areas that are Pakistan today had in the 1937 provincial elections shown scant popular Muslim support for Jinnah’s League. The NWFP had a Congress Government in the 1946 elections, and its supporters boycotted the pro-Pakistan referendum in 1947. The imposition of Urdu culture as Pakistan’s dominant ethos might have come to be accepted later in West Punjab, Sindh and NWFP but it was not acceptable in East Bengal, and led inevitably to the Pakistani civil war and creation of Bangladesh by Sheikh Mujib in 1971.
In August 1947, the new Dominions of India and Pakistan were each supposed to protect their respective minority populations as their first political duty. Yet both palpably failed in this, and were reduced to making joint declarations pleading for peace and an end to communal killings and the abduction of women. The Karachi Government, lacking the wherewithal and administrative machinery of being a nation-state at all, and with only Liaquat and an ailing Jinnah as noted leaders, may have failed more conspicuously, and West Punjab, the Frontier and Sindh were soon emptied of almost all their many Sikhs and Hindus. Instead, the first act of the new Pakistan Government in the weeks after August 14, 1947 was to arrange for the speedy and safe transfer of the North Indian Muslim elite by air from Delhi using chartered British aeroplanes. The ordinary Muslim masses of UP, Delhi and East Punjab were left in danger from or were subjected to Sikh and Hindu mob attacks, especially as news and rumours spread of similar outrages against Pakistan’s departing minorities.
In this spiral of revenge attacks and counter-attacks, bloodshed inevitably spilled over from West and East Punjab into the northern Punjabi plains of Jammu, though Kashmir Valley remained conspicuously peaceful. Zafrullah and Liaquat would later claim it was this communal civil war which had caused thousands of newly decommissioned Mirpuri soldiers of the British Army, and thousands of Afridi and other Frontier tribesmen, to spontaneously act to “liberate” J&K’s Muslims from alleged tyranny under the Hindu Ruler or an allegedly illegal Indian occupation.
But the main attack on J&K State that began from Pakistan along the Manshera-Muzaffarabad road on October 22, 1947 was admittedly far too well-organised, well-armed, well-planned and well-executed to have been merely a spontaneous uprising of tribesmen and former soldiers. In all but name, it was an act of undeclared war of the new Dominion of Pakistan first upon the State of J&K and then upon the Indian Dominion. This became obvious to Field Marshall Auchinlek, who, as Supreme Commander of the armed forces of both India and Pakistan, promptly resigned and abolished the Supreme Command in face of the fact that two parts of his own forces were now at war with one another.
The invaders failed to take Srinagar solely because they lost their military purpose while indulging in the Rape of Baramula. Thousands of Kashmiri women of all communities ~ Muslim, Sikh and Hindu ~ were violated and transported back to be sold in markets in Peshawar and elsewhere. Such was standard practice in Central Asian tribal wars from long before the advent of Islam, and the invading tribesmen shared that culture. India’s Army and Air Force along with the militias of the secular democratic movement led by Sheikh Abdullah and those remaining loyal units of J&K forces, fought off the invasion, and liberated Baramula, Naushera, Uri, Poonch etc. Gilgit had a British-led coup détat against it bringing it under Pakistan’s control. Kargil was initially taken by the Pakistanis and then lost by them. Leh could have been but was not taken by Pakistani forces. But in seeking to protect Leh and to retake Kargil, the Indian Army lost the siege of Skardu ~ which ended reputedly with the infamous communication from the Pakistani commander to his HQ: “All Sikhs killed; all women raped.”
Legal theory
Now, in this grave mortal conflict, the legal theory to which both the Indian and Pakistani Governments have been wedded for sixty years is one that had been endorsed by the British Cabinet Mission in 1946 and originated with the Butler Commission of 1929. Namely, that “Lapse of Paramountcy” over the “Indian India” of the “Native States” could and did occur with the extinction of British India on August 15, 1947. By this theory, Hyderabad, J&K, Junagadh and the several other States which had not acceded to either Dominion were no longer subject to the Crown’s suzerainty as of that date. Both Dominions drew up “Instruments of Accession” for Rulers to sign upon the supposed “Lapse” of Paramountcy that was to occur with the end of British India.
Ever since, the Pakistan Government has argued that Junagadh’s Ruler acceded to Pakistan and Hyderabad’s had wished to do so but both were forcibly prevented by India. Pakistan has also argued the accession to India by J&K’s Ruler was “fraudulent” and unacceptable, and Sheikh Abdullah was a “Quisling” of India and it was not his National Conference but the Muslim Conference of Ibrahim, Abbas and the Mirwaiz (precursor of the Hurriyat) which represented J&K’s Muslims.
India argued that Junagadh’s accession to Pakistan or Hyderabad’s independence were legal and practical impossibilities contradicting the wills of their peoples, and that their integration into the Indian Dominion was carried out in an entirely legitimate manner in the circumstances prevailing.
On J&K, India has argued that not only had the Ruler requested Indian forces to fight off the Pakistani attack, and he acceded formally before Indian forces were sent, but also that democratic principles were fully adhered to in the unequivocal endorsement of the accession by Sheikh Abdullah and the National Conference and further by a duly called and elected J&K Constituent Assembly, as well as generations of Kashmiris since. In the Indian view, it is Pakistan which has been in illegal occupation of Indian territory from Mirpur, Muzaffarabad and Gilgit to Skardu all the way to the Khunjerab Pass, Siachen Glacier and K2, some of which it illegally ceded to its Communist Chinese ally, and furthermore that it has denied the peoples of these areas any democratic voice.
Roman law
In June 1947, it was uniquely and brilliantly argued by BR Ambedkar in a statement to the Press that the British had made a catastrophic error in comprehending their own constitutional law, that no such thing as “Lapse” of Paramountcy existed, and that suzerainty over the “Native States” of “Indian India” would be automatically transferred in international law to the successor State of British India. It was a legal illusion to think any Native State could be sovereign even for a single logical moment. On this theory, if the Dominion of India was the sole successor State in international law while Pakistan was a new legal entity, then a Native State which acceded to Pakistan after August 15, 1947 would have had to do so with the consent of the suzerain power, namely, India, as may be said to have happened implicitly in case of Chitral and a few others. Equally, India’s behaviour in integrating (or annexing) Junagadh and Hyderabad, would become fully explicable ~ as would the statements of Mountbatten, Nehru and Patel before October 1947 that they would accept J&K going to Pakistan if that was what the Ruler and his people desired. Pakistan unilaterally and by surprise went to war against J&K on October 22, declared the accession to India “fraudulent”, and to this day has claimed the territory of the original State of J&K is “disputed”. Certainly, even if the Ambedkar doctrine is applied that no “Lapse” was possible under British law, Pakistan did not recognise India’s jurisdiction there as the suzerain power as of August 15, 1947. Altogether, Pakistan’s sovereign actions from October 22 onwards amounted to acting to annex J&K to itself by military force ~ acts which came to be militarily resisted (with partial success) by India allied with Sheikh Abdullah’s National Conference and the remaining forces of J&K. By these military actions, Pakistan revealed that it considered J&K territory to have descended into a legal state of anarchy as of October 22, 1947, and hence open to resolution by “Military Decision” ~ as is indeed the just outcome under Roman Law, the root of all municipal and international law today, when there is a contest between claimants over an ownerless entity.
Choice of nationality
Hence, the present author concluded (“Solving Kashmir”, The Statesman December 1-3, 2005) that the dismemberment of the original J&K State and annexation of its territories by India and Pakistan that has occurred since 1947, as represented first by the 1949 Ceasefire Line and then by the 1972 Line of Control, is indeed the just and lawful outcome prevailing in respect of the question of territorial sovereignty and jurisdiction. The remaining “democratic” question described has to do with free individual choice of nationality by the inhabitants, under conditions of full information and privacy, citizen-by-citizen, with the grant of permanent residency rights by the Indian Republic to persons under its jurisdiction in J&K who may choose not to remain Indian nationals but become Afghan, Iranian or Pakistani nationals instead. Pakistan has said frequently its sole concern has been the freedom of the Muslims of J&K under Indian rule, and any such genuine concern shall have been thereby fully met by India. Indeed, if Pakistan agreed to act similarly, this entire complex mortal problem of decades shall have begun to be peacefully resolved. Both countries are wracked by corruption, poverty and bad governance, and would be able to mutually draw down military forces pit against one another everywhere, so as to begin to repair the grave damage to their fiscal health caused by the deleterious draining away of vast public resources.
At the advent of Islam in distant Arabia, India and Kashmir in particular were being visited by Chinese Buddhist pilgrims during Harsha’s reign. The great “Master of Law” Hiuen Tsiang visited between 629-645 and spent 631-633 in Kashmir (”Kia-chi-mi-lo”), describing it to include Punjab, Kabul and Kandahar. Over the next dozen centuries, Buddhist, Hindu, Muslim, Sikh and again Hindu monarchs came to rule the 85 mile long 40 mile wide territory on the River Jhelum’s upper course known as Srinagar Valley, as well as its adjoining Jammu in the upper plains of the Punjab and “Little Tibet” consisting of Laddakh, Baltistan and Gilgit.
In 1344, a Persian adventurer from Swat or Khorasan by name of Amir or Mirza, who had “found his way into the Valley and in time gained great influence at the Raja’s court”, proclaimed himself Sultan Shamsuddin after the death of the last Hindu monarchs of medieval Kashmir. Twelve of his descendants formed the Shamiri dynasty including the notorious Sikander and the just and tolerant Zainulabidin. Sikander who ruled 1386-1410 “submitted himself” to the Uzbek Taimur the Lame when he approached Kashmir in 1398 “and thus saved the country from invasion”. Otherwise, “Sikander was a gloomy ferocious bigot, and his zeal in destroying temples and idols was so intense that he is remembered as the Idol-Breaker. He freely used the sword to propagate Islam and succeeded in forcing the bulk of the population to conform outwardly to the Muslim religion. Most of the Brahmins refused to apostatise, and many of them paid with their lives the penalty for their steadfastness. Many others were exiled, and only a few conformed.”
Zainulabidin who ruled 1417-1467 “was a man of very different type”. “He adopted the policy of universal toleration, recalled the exiled Brahmins, repealed the jizya or poll-tax on Hindus, and even permitted new temples to be built. He abstained from eating flesh, prohibited the slaughter of kine, and was justly venerated as a saint. He encouraged literature, painting and music, and caused many translations to be made of works composed in Sanskrit, Arabic and other languages.” During his “long and prosperous reign”, he “constructed canals and built many mosques; he was just and tolerant”.
The Shamiri dynasty ended in 1541 when “some fugitive chiefs of the two local factions of the Makri and the Chakk invited Mirza Haidar Dughlat, a relation of Babar, to invade Kashmir. The country was conquered and the Mirza held it (nominally in name of Humayan) till 1551, when he was killed in a skirmish. The line… was restored for a few years, until in 1559 a Chakk leader, Ghazi Shah, usurped the throne; and in the possession of his descendants it remained for nearly thirty years.” This dynasty marks the origins of Shia Islam in Srinagar though Shia influence in Gilgit, Baltistan and Laddakh was of longer standing. Constant dissensions weakened the Chakks, and in 1586, Akbar, then at Attock on the Indus, sent an army under Raja Bhagwan Das into Srinagar Valley and easily made it part of his Empire.
Shivaism and Islam both flourished, and Hindu ascetics and Sufi saints were revered by all. Far from Muslims and Hindus forming distinct nations, here they were genetically related kinsmen living in proximity in a small isolated area for centuries. Indeed Zainulabidin may have had a vast unspoken influence on the history of all India insofar as Akbar sought to attempt in his empire what Zainulabidin achieved in the Valley. Like Zainulabidin, Akbar’s governance of India had as its “constant aim” “to conciliate the Hindus and to repress Muslim bigotry” which in modern political parlance may be seen as the principle of secular governance ~ of conciliating the powerless (whether majority or minority) and repressing the bigotry of the powerful (whether minority or majority). Akbar had made the Valley the summer residence of the Mughals, and it was Jahangir, seeing the Valley for the first time, who apparently said the words agar behest baushad, hamee in hast, hamee in hast, hamee in hast: “if Heaven exists, it is here, it is here, it is here”. Yet like other isolated paradises (such as the idyllic islands of the Pacific Ocean) an accursed mental ether can accompany the magnificent beauty of people’s surroundings. As the historian put it: “The Kashmiris remained secure in their inaccessible Valley; but they were given up to internal weakness and discord, their political importance was gone…”
After the Mughals collapsed, Iran’s Turkish ruler Nadir Shah sacked Delhi in 1739 but the Iranian court fell in disarray upon his death. In 1747 a jirga of Pashtun tribes at Kandahar “broke normal tradition” and asked an old Punjabi holy man and shrine-keeper to choose between two leaders; this man placed young wheat in the hand of the 25 year old Ahmed Shah Saddozai of the Abdali tribe, and titled him “Durrani”. Five years later, Durrani took Kashmir and for the next 67 years the Valley was under Pashtun rule, a time of “unmitigated brutality and widespread distress”. Durrani himself “was wise, prudent and simple”, never declared himself king and wore no crown, instead keeping a stick of young wheat in his turban. Leaving India, he famously recited: “The Delhi throne is beautiful indeed, but does it compare with the mountains of Kandahar?”
Kashmir’s modern history begins with Ranjit Singh of the Sikhs who became a soldier at 12, and in 1799 at age 19 was made Lahore’s Governor by Kabul’s Zaman Shah. Three years later “he made himself master of Amritsar”, and in 1806 crossed the River Sutlej and took Ludhiana. He created a fine Sikh infantry and cavalry under former officers of Napoleon, and with 80,000 trained men and 500 guns took Multan and Peshawar, defeated the Pashtuns and overran Kashmir in 1819. The “cruel rule” of the Pashtuns ended “to the great relief of Kashmir’s inhabitants”.
The British Governor-General Minto (ancestor of the later Viceroy), seeing advantage in the Sikhs staying north of the Sutlej, sent Charles Metcalfe, “a clever young civilian”, to persuade the Khalsa; in 1809, Ranjit Singh and the British in the first Treaty of Amritsar agreed to establish “perpetual amity”: the British would “have no concern” north of the Sutlej and Ranjit Singh would keep only minor personnel south of it. In 1834 and 1838 Ranjit Singh was struck by paralysis and died in 1839, leaving no competent heir. The Sikh polity collapsed, “their power exploded, disappearing in fierce but fast flames”. It was “a period of storm and anarchy in which assassination was the rule” and the legitimate line of his son and grandson, Kharak Singh and Nao Nihal Singh was quickly extinguished. In 1845 the Queen Regent, mother of the five-year old Dalip Singh, agreed to the Khalsa ending the 1809 Treaty. After bitter battles that might have gone either way, the Khalsa lost at Sobraon on 10 February 1846, and accepted terms of surrender in the 9 March 1846 Treaty of Lahore. The kingdom had not long survived its founder: “created by the military and administrative genius of one man, it crumbled into powder when the spirit which gave it life was withdrawn; and the inheritance of the Khalsa passed into the hands of the English.”
Ranjit Singh’s influence on modern J&K was even greater through his having mentored the Rajput Gulab Singh Dogra (1792-1857) and his brothers Dhyan Singh and Suchet Singh. Jammu had been ruled by Ranjit Deo until 1780 when the Sikhs made it tributary to the Lahore Court. Gulab Singh, a great grand nephew of Ranjit Deo, had left home at age 17 in search of a soldierly fortune, and ended up in 1809 in Ranjit Singh’s army, just when Ranjit Singh had acquired for himself a free hand to expand his domains north of the River Sutlej.
Gulab Singh, an intrepid soldier, by 1820 had Jammu conferred upon him by Ranjit Singh with the title of Raja, while Bhimber, Chibal, Poonch and Ramnagar went to his brothers. Gulab Singh, “often unscrupulous and cruel, was a man of considerable ability and efficiency”; he “found his small kingdom a troublesome charge but after ten years of constant struggles he and his two brothers became masters of most of the country between Kashmir and the Punjab”, though Srinagar Valley itself remained under a separate Governor appointed by the Lahore Court. Gulab Singh extended Jammu’s rule from Rawalpindi, Bhimber, Rajouri, Bhadarwah and Kishtwar, across Laddakh and into Tibet. His General Zorawar Singh led six expeditions into Laddakh between 1834 and 1841 through Kishtwar, Padar and Zanskar. In May 1841, Zorawar left Leh with an army of 5000 Dogras and Laddakhis and advanced on Tibet. Defeating the Tibetans at Rudok and Tashigong, he reached Minsar near Lake Mansarovar from where he advanced to Taklakot (Purang), 15 miles from the borders of Nepal and Kumaon, and built a fort stopping for the winter. Lhasa sent large re-inforcements to meet him. Zorawar, deciding to take the offensive, was killed in the Battle of Toyu, on 11-12 December 1841 at 16,000 feet.
A Laddakhi rebellion resulted against Jammu, aided now by the advancing Tibetans. A new army was sent under Hari Chand suppressing the rebellion and throwing back the Tibetans, leading to a peace treaty between Lhasa and Jammu signed on 17 September 1842: “We have agreed that we have no ill-feelings because of the past war. The two kings will henceforth remain friends forever. The relationship between Maharajah Gulab Singh of Kashmir and the Lama Guru of Lhasa (Dalai Lama) is now established. The Maharajah Sahib, with God (Kunchok) as his witness, promises to recognise ancient boundaries, which should be looked after by each side without resorting to warfare. When the descendants of the early kings, who fled from Laddakh to Tibet, now return they will not be stopped by Shri Maharajah. Trade between Laddakh and Tibet will continue as usual. Tibetan government traders coming into Laddakh will receive free transport and accommodations as before, and the Laddakhi envoy will, in turn, receive the same facilities in Lhasa. The Laddakhis take an oath before God (Kunchok) that they will not intrigue or create new troubles in Tibetan territory. We have agreed, with God as witness, that Shri Maharajah Sahib and the Lama Guru of Lhasa will live together as members of the same household.” The traditional boundary between Laddakh and Tibet “as recognised by both sides since olden times” was accepted by the envoys of Gulab Singh and the Dalai Lama.
An earlier 1684 treaty between Laddakh and Lhasa had said that while Laddakh would send tribute to Lhasa every three years, “the king of Laddakh reserves to himself the village of Minsar in Ngarees-khor-sum, that he may be independent there; and he sets aside its revenue for the purpose of meeting the expense involved in keeping up the sacrificial lights at Kangree (Kailas), and the Holy Lakes of Mansarovar and Rakas Tal”. The area around Minsar village near Lake Mansarovar, held by the rulers of Laddakh since 1583, was retained by Jammu in the 1842 peace-treaty, and its revenue was received by J&K State until 1948.
After Ranjit Singh’s death in 1839, Gulab Singh was alienated from the Lahore Court where the rise of his brothers and a nephew aroused enough Khalsa jealousy to see them assassinated in palace intrigues. While the Sikhs imploded, Gulab Singh had expanded his own dominion from Rawalpindi to Minsar ~ everywhere except Srinagar Valley itself. He had apparently advised the Sikhs not to attack the British in breach of the 1809 Treaty, and when they did so he had not joined them, though had he done so British power in North India might have been broken. The British were grateful for his neutrality and also his help in their first misbegotten adventure in Afghanistan. It was Gulab Singh who was now encouraged by both the British and the Sikhs to mediate between them, indeed “to take a leading part in arranging conditions of peace”, and he formally represented the Sikh regency in the negotiations. The 9 March 1846 Treaty of Lahore “set forth that the British Government having demanded in addition to a certain assignment of territory, a payment of a crore and a half of rupees, and the Sikh Government being unable to pay the whole”, Dalip Singh “should cede as equivalent to one crore the hill country belonging to the Punjab between the Beas and the Indus including Kashmir and the Hazara”.
For the British to occupy the whole of this mountainous territory was judged unwise on economic and military grounds; it was not feasible to occupy from a military standpoint and the area “with the exception of the small Valley of Kashmir” was “for the most part unproductive”. “On the other hand, the ceded tracts comprised the whole of the hereditary possessions of Gulab Singh, who, being eager to obtain an indefeasible title to them, came forward and offered to pay the war indemnity on condition that he was made the independent ruler of Jammu & Kashmir.
A separate treaty embodying this arrangement was thus concluded between the British and Gulab Singh at Amritsar on 16 March 1846.” Gulab Singh acknowledged the British Government’s supremacy, and in token of it agreed to present annually to the British Government “one horse, twelve shawl goats of approved breed and three pairs of Kashmir shawls. This arrangement was later altered; the annual presentation made by the Kashmir State was confined to two Kashmir shawls and three romals (handkerchiefs).” The Treaty of Amritsar “put Gulab Singh, as Maharaja, in possession of all the hill country between the Indus and the Ravi, including Kashmir, Jammu, Laddakh and Gilgit; but excluding Lahoul, Kulu and some areas including Chamba which for strategic purposes, it was considered advisable (by the British) to retain and for which a remission of Rs 25 lakhs was made from the crore demanded, leaving Rs 75 lakhs as the final amount to be paid by Gulab Singh.” The British retained Hazara which in 1918 was included into NWFP. Through an intrigue emanating from Prime Minister Lal Singh in Lahore, Imamuddin, the last Sikh-appointed Governor of Kashmir, sought to prevent Gulab Singh taking possession of the Valley in accordance with the Treaty’s terms. By December 1846 Gulab Singh had done so, though only with help of a British force which included 17,000 Sikh troops “who had been fighting in the campaign just concluded”. (Contemporary British opinion even predicted Sikhism like Buddhism “would become extinct in a short time if it were not kept alive by the esprit de corps of the Sikh regiments”.)
The British in 1846 may have been glad enough to allow Gulab Singh take independent charge of the new entity that came to be now known as the “State of Jammu & Kashmir”. Later, however. they and their American allies would grow keen to control or influence the region vis-à-vis their new interests against the Russian and Soviet Empires.
From the 1846 Treaty of Amritsar creating the State of Jammu & Kashmir until the collapse of the USSR in 1991, Britain and later the USA became increasingly interested in the subcontinent’s Northwest. The British came to India by sea to trade. Barren, splendid, landlocked Afghanistan held no interest except as a home of fierce tribes; but it was the source of invasions into the Indian plains and prompted a British misadventure to install Shah Shuja in place of Dost Mohammad Khan leading to ignominious defeat. Later, Afghanistan was seen as the underbelly of the Russian and Soviet empires, and hence a location of interest to British and American strategic causes.
In November 1954, US President Dwight Eisenhower authorized 30 U-2 spy aircraft to be produced for deployment against America’s perceived enemies, especially to investigate Soviet nuclear missiles which could reach the USA. Reconnaissance balloons had been unsuccessful, and numerous Western pilots had been shot down taking photographs from ordinary military aircraft. By June 1956, U-2 were making clandestine flights over the USSR and China. But on May 1 1960, one was shot or forced down over Sverdlovsk, 1,000 miles within Soviet territory. The Americans prevaricated that it had taken off from Turkey on a weather-mission, and been lost due to oxygen problems. Nikita Kruschev then produced the pilot, Francis Gary Powers, who was convicted of spying, though was exchanged later for a Soviet spy. Powers had been headed towards Norway, his task to photograph Soviet missiles from 70,000 ft, his point of origin had been an American base 20 miles from Peshawar.
America needed clandestine “forward bases” from which to fly U-2 aircraft, and Pakistan’s ingratiating military and diplomatic establishment was more than willing to offer such cooperation, fervently wishing to be seen as a “frontline state” against the USSR. “We will help you defeat the USSR and we are hopeful you will help us defeat India” became their constant refrain. By 1986, the Americans had been permitted to build air-bases in Balochistan and also use Mauripur air-base near Karachi.
Jammu & Kashmir and especially Gilgit-Baltistan adjoins the Pashtun regions whose capital has been Peshawar. In August-November 1947, a British coup d’etat against J&K State secured Gilgit-Baltistan for the new British Dominion of Pakistan.
The Treaty of Amritsar had nowhere required Gulab Singh’s dynasty to accept British political control in J&K as came to be exercised by British “Residents” in all other Indian “Native States”. Despite this, Delhi throughout the late 19th Century relentlessly pressed Gulab Singh’s successors Ranbir Singh and Partab Singh to accept political control. The Dogras acquiesced eventually. Delhi’s desire for control had less to do with the welfare of J&K’s people than with protection of increasing British interests in the area, like European migration to Srinagar Valley and guarding against Russian or German moves in Afghanistan. “Sargin” or “Sargin Gilit”, later corrupted by the Sikhs and Dogras into “Gilgit”, had an ancient people who spoke an archaic Dardic language “intermediate between the Iranian and the Sanskritic”. “The Dards were located by Ptolemy with surprising accuracy on the West of the Upper Indus, beyond the headwaters of the Swat River (Greek: Soastus) and north of the Gandarae (i.e. Kandahar), who occupied Peshawar and the country north of it. This region was traversed by two Chinese pilgrims, Fa-Hsien, coming from the north about AD 400 and Hsuan Tsiang, ascending from Swat in AD 629, and both left records of their journeys.”
Gilgit had been historically ruled by a Hindu dynasty called Trakane; when they became extinct, Gilgit Valley “was desolated by successive invasions of neighbouring rulers, and in the 20 or 30 years ending with 1842 there had been five dynastic revolutions. The Sikhs entered Gilgit about 1842 and kept a garrison there.” When J&K came under Gulab Singh, “the Gilgit claims were transferred with it, and a boundary commission was sent” by the British. In 1852 the Dogras were driven out with 2,000 dead. In 1860 under Ranbir Singh, the Dogras “returned to Gilgit and took Yasin twice, but did not hold it. They also in 1866 invaded Darel, one of the most secluded Dard states, to the south of the Gilgit basin but withdrew again.”
The British appointed a Political Agent in Gilgit in 1877 but he was withdrawn in 1881. “In 1889, in order to guard against the advance of Russia, the British Government, acting as the suzerain power of Kashmir, established the Gilgit Agency”. The Agency was re-established under control of the British Resident in Jammu & Kashmir. “It comprised the Gilgit Wazarat; the State of Hunza and Nagar; the Punial Jagir; the Governorships of Yasin, Kuh-Ghizr and Ishkoman, and Chilas”. In 1935, the British demanded J&K lease to them for 60 years Gilgit town plus most of the Gilgit Agency and the hill-states Hunza, Nagar, Yasin and Ishkuman. Hari Singh had no choice but to acquiesce. The leased region was then treated as part of British India, administered by a Political Agent at Gilgit responsible to Delhi, first through the Resident in J& K and later a British Agent in Peshawar. J& K State no longer kept troops in Gilgit and a mercenary force, the Gilgit Scouts, was recruited with British officers and paid for by Delhi. In April 1947, Delhi decided to formally retrocede the leased areas to Hari Singh’s J& K State as of 15 August 1947. The transfer was to formally take place on 1 August.
On 31 July, Hari Singh’s Governor arrived to find “all the officers of the British Government had opted for service in Pakistan”. The Gilgit Scouts’ commander, a Major William Brown aged 25, and his adjutant, a Captain Mathieson, planned openly to engineer a coup détat against Hari Singh’s Government. Between August and October, Gilgit was in uneasy calm. At midnight on 31 October 1947, the Governor was surrounded by the Scouts and the next day he was “arrested” and a provisional government declared.
Hari Singh’s nearest forces were at Bunji, 34 miles from Gilgit, a few miles downstream from where the Indus is joined by Gilgit River. The 6th J& K Infantry Battalion there was a mixed Sikh-Muslim unit, typical of the State’s Army, commanded by a Lt Col. Majid Khan. Bunji controlled the road to Srinagar. Further upstream was Skardu, capital of Baltistan, part of Laddakh District where there was a small garrison. Following Brown’s coup in Gilgit, Muslim soldiers of the 6th Infantry massacred their Sikh brothers-at-arms at Bunji. The few Sikhs who survived escaped to the hills and from there found their way to the garrison at Skardu.
On 4 November 1947, Brown raised the new Pakistani flag in the Scouts’ lines, and by the third week of November a Political Agent from Pakistan had established himself at Gilgit. Brown had engineered Gilgit and its adjoining states to first secede from J&K, and, after some talk of being independent, had promptly acceded to Pakistan. His commander in Peshawar, a Col. Bacon, as well as Col. Iskander Mirza, Defence Secretary in the new Pakistan and later to lead the first military coup détat and become President of Pakistan, were pleased enough. In July 1948, Brown was awarded an MBE (Military) and the British Governor of the NWFP got him a civilian job with ICI~ which however sent him to Calcutta, where he came to be attacked and left for dead on the streets by Sikhs avenging the Bunji massacre. Brown survived, returned to England, started a riding school, and died in 1984. In March 1994, Pakistan awarded his widow the Sitara-I-Pakistan in recognition of his coup détat.
Gilgit’s ordinary people had not participated in Brown’s coup which carried their fortunes into the new Pakistan, and to this day appear to remain without legislative representation. It was merely assumed that since they were mostly Muslim in number they would wish to be part of Pakistan ~ which also became Liaquat Ali Khan’s assumption about J&K State as a whole in his 1950 statements in North America. What the Gilgit case demonstrates is that J&K State’s descent into a legal condition of ownerless anarchy open to “Military Decision” had begun even before the Pakistani invasion of 22 October 1947 (viz. “Solving Kashmir”, The Statesman, 1-3 December 2005). Also, whatever else the British said or did with respect to J & K, they were closely allied to the new Pakistan on the matter of Gilgit.
The peak of Pakistan’s Anglo-American alliance came with the enormous support in the 1980s to guerrilla forces created and headquartered in Peshawar, to battle the USSR and Afghan communists directly across the Durand Line. It was this guerrilla war which became a proximate cause of the collapse of the USSR as a political entity in 1991. President Ronald Reagan’s CIA chief William J. Casey sent vast sums in 1985-1988 to supply and train these guerrillas. The Washington Post and New Yorker reported the CIA training guerrillas “in the use of mortars, rocket grenades, ground-to-air missiles”. 200 hand-held Stinger missiles were supplied for the first time in 1986 and the New Yorker reported Gulbudin Hikmatyar’s “Hizbe Islami” guerrillas being trained to bring down Soviet aircraft. “Mujahideen had been promised two Stingers for every Soviet aircraft brought down. Operators who failed to aim correctly were given additional training… By 1986, the United States was so deeply involved in the Afghan war that Soviet aircraft were being brought down under the supervision of American experts”. (Raja Anwar, The Tragedy of Afghanistan, 1988, p. 234).
The budding US-China détente brokered by Pakistan came into full bloom here. NBC News on 7 January 1980 said “for the first time in history (a senior State Department official) publicly admitted the possibility of concluding a military alliance between the United States and China”. London’s Daily Telegraph reported on 5 January 1980 “China is flying large supplies of arms and ammunition to the insurgents in Afghanistan. According to diplomatic reports, supplies have arrived in Pakistan from China via the Karakoram Highway…. A major build-up of Chinese involvement is underway ~ in the past few days. Scores of Chinese instructors have arrived at the Shola-e-Javed camps.”
Afghan reports in 1983-1985 said “there were eight training camps near the Afghan border operated by the Chinese in Sinkiang province” and that China had supplied the guerrillas “with a variety of weapons including 40,000 RPG-7 and 20,000 RPG-II anti tank rocket launchers.” Like Pakistan, “China did not publicly admit its involvement in the Afghan conflict: in 1985 the Chinese Mission at the UN distributed a letter denying that China was extending any kind of help to the Afghan rebels” (Anwar, ibid. p. 234). Support extended deep and wide across the Arab world. “The Saudi and Gulf rulers … became the financial patrons of the Afghan rebels from the very start of the conflict”. Anwar Sadat, having won the Nobel Peace Prize, was “keen to claim credit for his role in Afghanistan…. by joining the Afghanistan jihad, Sadat could re-establish his Islamic credentials, or so he believed. He could thus not only please the Muslim nations but also place the USA and Israel in his debt.” Sadat’s Defence Minister said in January 1980: “Army camps have been opened for the training of Afghan rebels; they are being supplied with weapons from Egypt” and Sadat told NBC News on 22 September 1981 “that for the last twenty-one months, the USA had been buying arms from Egypt for the Afghan rebels. He said he had been approached by the USA in December 1979 and he had decided to `open my stores’. He further disclosed that these arms were being flown to Pakistan from Egypt by American aircraft. Egypt had vast supplies of SAM-7 and RPG-7 anti-aircraft and anti-tank weapons which Sadat agreed to supply to Afghanistan in exchange for new American arms. The Soviet weapons, being light, were ideally suited to guerrilla warfare. … the Mujahideen could easily claim to have captured them from Soviet and Afghan troops in battle.… Khomeini’s Iran got embroiled in war (against Iraq) otherwise Kabul would also have had to contend with the full might of the Islamic revolutionaries.” (Anwar ibid. p. 235).
Afghanistan had been occupied on 26-27 December 1979 by Soviet forces sent by the decrepit Leonid Brezhnev and Yuri Andropov to carry out a putsch replacing one communist, Hafizullah Amin, with a rival communist and Soviet protégé, Babrak Karmal. By 1985 Brezhnev and Andropov were dead and Mikhail Sergeyevich Gorbachev had begun his attempts to reform the Soviet system, usher in openness, end the Cold War and in particular withdraw from Afghanistan, which by 1986 he had termed “a bleeding wound”. Gorbachev replaced Karmal with a new protégé Najibullah Khan, who was assigned the impossible task of bringing about national reconciliation with the Pakistan-based guerrillas and form a national government. Soviet forces withdrew from Afghanistan in February 1989 having lost 14,500 dead, while more than a million Afghans had been killed since the invasion a decade earlier.
Not long after Russia’s Bolshevik Revolution, Gregory Zinoviev had said that international communism “turns today to the peoples of the East and says to them, `Brothers, we summon you to a Holy War first of all against British imperialism!’ At this there were cries of Jehad! Jehad! And much brandishing of picturesque Oriental weapons.” (Treadgold, Twentieth Century Russia, 1990, p. 213). Now instead, the Afghan misadventure had contributed to the collapse of the Soviet Empire itself, the USSR ceasing to be a political entity by 1991, and even Gorbachev being displaced by Boris Yeltsin and later Vladimir Putin in a new Russia.
What resulted for the people of the USA and Britain and the West in general was that they no longer had to live under threat of hostile Soviet tanks and missiles, while the people of Russia, Ukraine and the other erstwhile Soviet republics as well as Eastern Europe were able to throw off the yoke of communism that had oppressed them since the Bolshevik Revolution and instead to breathe the air of freedom.
What happened to the people of Afghanistan, however, was that they were plunged into further ghastly civil war for more than ten years. And what happened to the people of Pakistan was that their country was left resembling a gigantic Islamist military camp, awash with airfields, arms, ammunition and trained guerrillas, as well as a military establishment enlivened as always by perpetual hope that these supplies, provisions and personnel of war might find alternative use in attacks against India over J& K. “We helped you when you wished to see the Soviet Union defeated and withdrawing in Afghanistan”, Pakistan’s generals and diplomats pleaded with the Americans and British, “now you must help us in our wish to see India defeated and withdrawing in Kashmir”. Pakistan’s leaders even believed that just as the Soviet Union had disintegrated afterwards, the Indian Union perhaps might be made to do the same. Not only were the two cases as different as chalk from cheese, Palmerstone’s dictum there are no permanent allies in the politics of nations could not have found more apt use than in what actually came to take place next.
Pakistan’s generals and diplomats felt betrayed by the loss of Anglo-American paternalism towards them after 1989.
Modern Pakistanis had never felt they subscribed to the Indian nationalist movement culminating in independence in August 1947. The Pakistani state now finally declared its independence in the world by exploding bombs in a nuclear arsenal secretly created with help purchased from China and North Korea. Pakistan’s leaders thus came to feel in some control of Pakistan’s destiny as a nation-state for the first time, more than fifty years after Pakistan’s formal creation in 1947. If nothing else, at least they had the Bomb.
Secondly, America and its allies would not be safe for long since the civil war they had left behind in Afghanistan while trying to defeat the USSR now became a brew from which arose a new threat of violent Islamism. Osama bin Laden and the Taliban, whom Pakistan’s military and the USA had promoted, now encouraged unprecedented attacks on the American mainland on September 11 2001 ~ causing physical and psychological damage which no Soviet, Chinese or Cuban missiles ever had been allowed to do. In response, America attacked and removed the Taliban regime in Afghanistan, once again receiving the cooperative use of Pakistani manpower and real estate ~ except now there was no longer any truck with the Pakistani establishment’s wish for a quid pro quo of Anglo-American support against India on J&K. Pakistan’s generals and diplomats soon realised their Anglo-American alliance of more than a half-century ended on September 11 2001. Their new cooperation was in killing or arresting and handing over fellow-Muslims and necessarily lacked their earlier feelings of subservience and ingratiation towards the Americans and British, and came to be done instead under at least some duress. No benefit could be reaped any more in the fight against India over Jammu & Kashmir. An era had ended in the subcontinent.
WHAT TO TELL MUSHARRAF: PEACE IS IMPOSSIBLE WITHOUT NON-AGGRESSIVE PAKISTANI INTENTIONS by Subroto Roy, First published in The Statesman December 15 2006 Editorial Page Special Article, www.thestatesman.net
In June 1989 a project at an American university involving Pakistani and other scholars, including one Indian, led to the book Foundations of Pakistan’s Political Economy: Towards an Agenda for the 1990s published in Karachi, New Delhi and elsewhere. The book reached Nawaz Sharif and the Islamabad elite, and General Musharraf’s current proposal on J&K, endorsed warmly by the US State Department last week, derives from the last paragraph of its editorial introduction: “Kashmir… must be demilitarised and unified by both countries sooner or later, and it must be done without force. There has been enough needless bloodshed on the subcontinent… Modern Pakistanis and Indians are free peoples who can voluntarily agree in their own interests to alter the terms set hurriedly by Attlee or Mountbatten in the Indian Independence Act 1947. Nobody but we ourselves keeps us prisoners of superficial definitions of who we are or might be. The subcontinent could evolve its political identity over a period of time on the pattern of Western Europe, with open borders and (common) tariffs to the outside world, with the free movement of people, capital, ideas and culture. Large armed forces could be reduced and transformed in a manner that would enhance the security of each nation. The real and peaceful economic revolution of the masses of the subcontinent would then be able to begin.”
The editors as economists decried the waste of resources involved in the Pakistan-India confrontation, saying it had “greatly impoverished the general budgets of both Pakistan and India. If it has benefited important sections of the political and military elites of both countries, it has done so only at the expense of the general welfare of the masses.”
International law
Such words may have been bold in the early 1990s but today, a decade and a half later, they seem incomplete and rather naïve even to their author, who was myself, the only Indian in that project. Most significantly, the position in international law in the context of historical facts had been wholly neglected. So had been the manifest nature of the contemporary Pakistani state.
Jammu & Kashmir became an entity in international law when the Treaty of Amritsar was signed between Gulab Singh and the British on March 16 1846. British India itself became an entity in international law much later, possibly as late as June 1919 when it signed the Treaty of Versailles. As for Pakistan, it had no existence in world history or international law until August 14 1947, when the British created it as a new entity out of certain demarcated areas of British India and gave it the status of a Dominion. British India dissolved itself on August 15 1947 and the Dominion of India became its successor-state in international law on that date. As BR Ambedkar pointed out at the time, the new India automatically inherited British India’s suzerainty over any and all remaining “princely” states of so-called “Indian India”. In case of J&K in particular, there never was any question of it being recognised as an independent entity in global international law.
The new Pakistan, by entering a Standstill Agreement with J&K as of August 15 1947, did locally recognise J&K’s sovereignty over its decision whether to join Pakistan or India. But this Pakistani recognition lasted only until the attack on J&K that commenced from Pakistani territory as of October 22 1947, an attack in which Pakistani forces were complicit (something which, in different and mutating senses, has continued ever since). The Dominion of India had indicated it might have consented if J&K’s Ruler had decided to accede to Pakistan in the weeks following the dissolution of British India. But no such thing happened: what did happen was the descent of J&K into a condition of legal anarchy.
Beginning with the Pakistani attack on J&K as of October 22 upto and including the Rape of Baramulla and the British-led Pakistani coup détat in Gilgit on one side, and the arrival of Indian forces as well as mobilization by Sheikh Abdullah and Bakshi Ghulam Mohammad of J&K’s civilians to repel the Pakistani invaders on the other side, the State of Jammu & Kashmir became an ownerless entity in international law. In Roman Law, from which all modern international and municipal law ultimately derives, the ownership of an ownerless entity is open to be determined by “military decision”. The January 1949 Ceasefire Line that came to be renamed the Line of Control after the 1971 Bangladesh War, demarcates the respective territories that the then-Dominions and later Republics of India and Pakistan acquired by “military decision” of the erstwhile State of J&K which had come to cease to exist.
What the Republic of India means by saying today that boundaries cannot be redrawn nor any populations forcibly transferred is quite simply that the division of erstwhile J&K territory is permanent, and that sovereignty over it is indivisible. It is only sheer ignorance on the part of General Musharraf’s Indian interviewer the other day which caused it to be said that Pakistan was willing to “give up” its claim on erstwhile J&K State territory which India has held: Pakistan has never had nor even made such a claim in international law. What Pakistan has claimed is that India has been an occupier and that there are many people inhabiting the Indian area who may not wish to be Indian nationals and who are being compelled against their will to remain so ~ forgetting to add that precisely the same could be said likewise of the Pakistani-held area.
Accordingly, the lawful solution proposed in these pages a year ago to resolve that matter, serious as it is, has been that the Republic of India invite every person covered under Article 370, citizen-by- citizen, under a condition of full information, to privately and without fear decide, if he/she has not done so already, between possible Indian, Iranian, Afghan or Pakistani nationalities ~ granting rights and obligations of permanent residents to any of those persons who may choose for whatever private reason not to remain Indian nationals. If Pakistan acted likewise, the problem of J&K would indeed come to be resolved. The Americans, as self- appointed mediators, have said they wish “the people of the region to have a voice” in a solution: there can be no better expression of such voice than allowing individuals to privately choose their own nationalities and their rights and responsibilities accordingly. The issue of territorial sovereignty is logically distinct from that of the choice of nationality by individual inhabitants.
Military de-escalation
Equally significant though in assessing whether General Musharraf’s proposal is an anachronism, is Pakistan’s history since 1947: through Ayub’s 1965 attack, the civil war and secession of Bangladesh, the Afghan war and growth of the ISI, the Kargil incursion, the 1999 coup détat, and, once or twice removed, the 9/11 attacks against America. It is not a history that allows any confidence to arise in Indians that we are not dealing with a country misgoverned by a tiny arrogant exploitative military elite who remain hell-bent on aggression against us. Like the USA and USSR twenty years ago, what we need to negotiate about, and negotiate hard about, is an overall mutual military drawdown and de-escalation appropriate to lack of aggressive intent on both sides. Is General Musharraf willing to discuss that? It would involve reciprocal verifiable assessment of one another’s reasonable military requirements on the assumption that each was not a threatening enemy of the other. That was how the USA-USSR drawdown and de-escalation occurred successfully. If General Musharraf is unwilling to enter such a discussion, there is hardly anything to talk about with him. We should wait for democracy to return.
Pakistan President Asif Ali Zardari’s recent argument in the New York Times resembles closely the well-known publications of his ambassador to the United States, Mr Husain Haqqani. Unfortunately, this Zardari-Haqqani thesis about Pakistan’s current predicament in the world and the world’s predicament with Pakistan is shot through with clear factual and logical errors. These need to be aired because true or useful conclusions cannot be reached from mistaken premises or faulty reasoning.
1. Origins of Pakistan, India, J&K, and their mutual problems
Mr Zardari makes the following seemingly innocuous statement:
“…. the two great nations of Pakistan and India, born together from the same revolution and mandate in 1947, must continue to move forward with the peace process.”
Now as a matter of simple historical fact, the current entities in the world system known as India and Pakistan were not “born together from the same revolution and mandate in 1947”. It is palpably false to suppose they were and Pakistanis indulge in wishful thinking and self-deception about their own political history if they suppose this.
India’s Republic arose out of the British Dominion known as “India” which was the legal successor of the entity known previously in international law as “British India”. British India had had secular governance and so has had the Indian Republic.
By contrast, the Islamic Republic of Pakistan arose out of a newly created state in international law known as the British Dominion of Pakistan, consisting of designated territory carved out of British India by a British decision and coming into existence one day before British India extinguished itself. (Another new state, Bangladesh, later seceded from Pakistan.)
The British decision to create territory designated “Pakistan” had nothing to do with any anti-British “revolution” or “mandate” supported by any Pakistani nationalism because there was none. (Rahmat Ali’s anti-Hindu pamphleteering in London could be hardly considered Pakistani nationalism against British rule. Khan Abdul Ghaffar Khan’s Pashtun patriots saw themselves as Indian, not Pakistani.)
To the contrary, the British decision had to do with a small number of elite Pakistanis — MA Jinnah foremost among them — demanding not to be part of the general Indian nationalist movement that had been demanding a British departure from power in the subcontinent. Jinnah’s separatist party, the Muslim League, was trounced in the 1937 provincial elections in all the Muslim-majority areas of British India that would eventually become Pakistan. Despite this, in September 1939, Britain, at war with Nazi Germany, chose to elevate the political power of Jinnah and his League to parity with the general Indian nationalist movement led by MK Gandhi. (See, Francis Robinson, in William James and Subroto Roy (eds), Foundations of Pakistan’s Political Economy: Towards an Agenda for the 1990s.) Britain needed India’s mostly Muslim infantry-divisions — the progenitors of the present-day Pakistan Army — and if that meant tilting towards a risky political idea of “Pakistan” in due course, so it would be. The thesis that Pakistan arose from any kind of “revolution” or “mandate” in 1947 is fantasy — the Muslim super-elite that invented and endorsed the Pakistan idea flew from Delhi to Karachi in chartered BOAC Dakotas, caring not a hoot about the vulnerability of ordinary Muslim masses to Sikh and Hindu majority wrath and retaliation on the ground.
Modern India succeeded to the rights and obligations of British India in international law, and has had a recognized existence as a state since at least the signing of the Armistice and Treaty of Versailles in 1918-1919. India was a founding member of the United Nations, being a signatory of the 1945 San Francisco Declaration, and an original member of the Bretton Woods institutions. An idea put forward by Argentina that as of 1947 India and Pakistan were both successor states of British India was rejected by the UN (Argentina withdrew its own suggestion), and it was universally acknowledged India was already a member of the UN while Pakistan would have to (and did) apply afresh for membership as a newly created state in the UN. Pakistan’s entry into the UN had the enthusiastic backing of India and was opposed by only one existing UN member, Afghanistan, due to a conflict that continues to this day over the legitimacy of the Durand Line that bifurcated the Pashtun areas.
Such a review of elementary historical facts and the position in law of Pakistan and India is far from being of merely pedantic interest today. Rather, it goes directly to the logical roots of the conflict over the erstwhile State of Jammu and Kashmir (J&K) — a state that itself originated as an entity in the world system a full century before Pakistan was to do so and more than half a century before British India did, but which would collapse into anarchy and civil war in 1947-1949.
Britain (or England) had been a major nation-state in the world system recognized since Grotius first outlined modern international law. On March 16 1846, Britain entered into a treaty, the Treaty of Amritsar, with one Gulab Singh, and the “State of Jammu & Kashmir” came to arise as a recognizable entity in international law for the first time. (See my “History of Jammu and Kashmir” published in The Statesman, Oct 29-30 2006, available elsewhere here.)
Jammu & Kashmir continued in orderly existence as a state until it crashed into legal and political anarchy and civil war a century later. The new Pakistan had entered into a “Standstill Agreement” with the State of Jammu & Kashmir as of August 15 1947. On or about October 22 1947, Pakistan unilaterally ended that Standstill Agreement and instead caused military forces from its territory to attack the State of Jammu & Kashmir along the Mansehra Road towards Baramula and Srinagar, coinciding too with an Anglo-Pakistani coup d’etat in Gilgit and Baltistan (see my “Solving Kashmir”; “Law, Justice & J&K”; “Pakistan’s Allies”, all published in The Statesman in 2005-2006 and available elsewhere here).
The new Pakistan had chosen, in all deliberation, to forswear law, politics and diplomacy and to resort to force of arms instead in trying to acquire J&K for itself via a military decision. It succeeded only partially. Its forces took and then lost both Baramula and Kargil; they may have threatened Leh but did not attempt to take it; they did take and retain Muzaffarabad and Skardu; they were never near taking the summer capital, Srinagar, though might have threatened the winter capital, Jammu.
All in all, a Ceasefire Line came to be demarcated on the military positions as of February 1 1949. After a war in 1971 that accompanied the secession of Bangladesh from Pakistan, that Ceasefire Line came to be renamed the “Line of Control” between Pakistan and India. An ownerless entity may be acquired by force of arms — the erstwhile State of Jammu & Kashmir in 1947-1949 had become an ownerless entity that had been dismembered and divided according to military decision following an armed conflict between Pakistan and India. The entity in the world system known as the “State of Jammu & Kashmir” created on March 16 1846 by Gulab Singh’s treaty with the British ceased to exist as of October 22 1947. Pakistan had started the fight over J&K but there is a general rule of conflicts that he who starts a fight does not get to finish it.
Such is the simplest and most practical statement of the history of the current problem. The British, through their own compulsions and imperial pretensions, raised all the talk about a “Lapse of Paramountcy” of the British Crown over the “Native Princes” of “Indian India”, and of how, the “Native Princes” were required to “accede” to either India or Pakistan. This ignored Britain’s own constitutional law. BR Ambedkar pointed out with unsurpassed clarity that no “Lapse of Paramountcy” was possible even for a single logical moment since “Paramountcy” over any “Native Princes” who had not joined India or Pakistan as of August 15 1947, automatically passed from British India to its legal successor, namely, the Dominion of India. It followed that India’s acquiescence was required for any subsequent accession to Pakistan – an acquiescence granted in case of Chitral and denied in case of Junagadh.
What the Republic of India means by saying today that boundaries cannot be redrawn nor any populations forcibly transferred is quite simply that the division of erstwhile J&K territory is permanent, and that sovereignty over it is indivisible. What Pakistan has claimed is that India has been an occupier and that there are many people inhabiting the Indian area who may not wish to be Indian nationals and who are being compelled against their will to remain so ~ forgetting to add that precisely the same could be said likewise of the Pakistani-held area. The lawful solution I proposed in “Solving Kashmir, “Law, Justice and J&K” and other works has been that the Republic of India invite every person covered under its Article 370, citizen-by-citizen, under a condition of full information, to privately and without fear decide, if he/she has not done so already, between possible Indian, Iranian, Afghan or Pakistani nationalities ~ granting rights and obligations of permanent residents to any of those persons who may choose for whatever private reason not to remain Indian nationals. If Pakistan acted likewise, the problem of J&K would indeed come to be resolved. The Americans, as self-appointed mediators, have said they wish “the people of the region to have a voice” in a solution: there can be no better expression of such voice than allowing individuals to privately choose their own nationalities and their rights and responsibilities accordingly. The issue of territorial sovereignty is logically distinct from that of the choice of nationality by individual inhabitants.
2. Benazir’s assassination falsely compared to the Mumbai massacres
Secondly, President Zardari draws a mistaken comparison between the assassination last year of his wife, Benazir Bhutto, and the Mumbai massacres a few weeks ago. Ms Bhutto’s assassination may resemble more closely the assassinations in India of Indira Gandhi in 1984 and Rajiv Gandhi in 1991.
Indira Gandhi died in “blowback” from the unrest she and her younger son and others in their party had opportunistically fomented among Sikh fundamentalists and sectarians since the late 1970s. Rajiv Gandhi died in “blowback” from an erroneous imperialistic foreign policy that he, as Prime Minister, had been induced to make by jingoistic Indian diplomats, a move that got India’s military needlessly involved in the then-nascent Sri Lankan civil war. Benazir Bhutto similarly may be seen to have died in “blowback” from her own political activity as prime minister and opposition leader since the late 1980s, including her own encouragement of Muslim fundamentalist forces. Certainly in all three cases, as in all assassinations, there were lapses of security too and imprudent political judgments made that contributed to the tragic outcomes.
Ms Bhutto’s assassination has next to nothing to do with the Mumbai massacres, besides the fact the perpetrators in both cases were Pakistani terrorists. President Zardari saying he himself has lost his wife to terrorism is true but not relevant to the proper diagnosis of the Mumbai massacres or to Pakistan-India relations in general. Rather, it serves to deflect criticism and condemnation of the Pakistani state’s pampered handing of Pakistan’s terrorist masterminds, as well as the gross irresponsibility of Pakistan’s military scientists (not AQ Khan) who have been recently advocating a nuclear first strike against India in the event of war.
3. Can any religious nation-state be viable in the modern world?
President Zardari’s article says:
“The world worked to exploit religion against the Soviet Union in Afghanistan by empowering the most fanatic extremists as an instrument of destruction of a superpower. The strategy worked, but its legacy was the creation of an extremist militia with its own dynamic.”
This may be overly simplistic. As pointed out in my article “Pakistan’s Allies”, Gregory Zinoviev himself after the Bolshevik Revolution had declared that international communism “turns today to the peoples of the East and says to them, ‘Brothers, we summon you to a Holy War first of all against British imperialism!’ At this there were cries of Jehad! Jehad! And much brandishing of picturesque Oriental weapons.” (Treadgold, Twentieth Century Russia, 1990, p. 213). For more than half of the 20th century, orthodox Muslims had been used by Soviet communists against British imperialism, then by the British and Americans (through Pakistan) against Soviet communism. Touché! Blowback and counter-blowback! The real question that arises from this today may be why orthodox Muslims have allowed themselves to be used either way by outside forces and have failed in developing a modern nation-state and political culture of their own. Europe and America only settled down politically after their religious wars were over. Perhaps no religious nation-state is viable in the modern world.
4. Pakistan’s behaviour leads to schizophrenia in international relations
President Zardari pleads for, or perhaps demands, resources from the world:
“the best response to the Mumbai carnage is to coordinate in counteracting the scourge of terrorism. The world must act to strengthen Pakistan’s economy and democracy, help us build civil society and provide us with the law enforcement and counterterrorism capacities that will enable us to fight the terrorists effectively.”
Six million pounds from Mr Gordon Brown, so much from here or there etc – President Zardari has apparently demanded 100 billion dollars from America and that is the price being talked about for Pakistan to dismantle its nuclear weapons and be brought under an American “nuclear umbrella” instead.
I have pointed out elsewhere that what Pakistan seems to have been doing in international relations for decades is send out “mixed messages” – i.e. contradictory signals, whether in thought, word or deed. Clinical psychologists following the work of Gregory Bateson would say this leads to confusion among Pakistan’s interlocutors (a “double bind”) and the symptoms arise of what may be found in schizophrenic relationships. (See my article “Do President-elect Obama’s Pakistan specialists believe…”; on the “double bind” theory, an article I chanced to publish in the Journal of Genetic Psychology, 1986, may be of interest).
Here are a typical set of “mixed messages” emanating from Pakistan’s government and opinion-makers:
“We have nuclear weapons
“We keep our nuclear weapons safe from any misuse or unauthorized use
“We are willing to use nuclear weapons in a first strike against India
“We do not comprehend the lessons of Hiroshima-Nagasaki
“We do not comprehend the destruction India will visit upon us if we strike them
“We are dangerous so we must not be threatened in any way
“We are peace-loving and want to live in peace with India and Afghanistan
“We love to play cricket with India and watch Bollywood movies
“We love our Pakistan Army as it is one public institution that works
“We know the Pakistan Army has backed armed militias against India in the past
“We know these militias have caused terrorist attacks
“We are not responsible for any terrorist attacks
“We do not harbour any terrorists
“We believe the world should pay us to not use or sell our nuclear weapons
“We believe the world should pay us to not encourage the terrorists in our country
“We believe the world should pay us to prevent terrorists from using our nuclear weapons
“We hate India and do not want to become like India
“We love India and want to become like India
“We are India and we are not India…”
Etc.
A mature rational responsible and self-confident Pakistan would have said instead:
“We apologise to India and other countries for the outrageous murders our nationals have committed in Mumbai and elsewhere
“We ask the world to watch how our professional army is deployed to disarm civilian and all “non-state” actors of unauthorized firearms and explosives
“We do not need and will not demand or accept a dollar in any sort of foreign aid, military or civilian, to solve our problems
“We realize our economic and political institutions are a mess and we must clean them up
“We will strive to build a society imbued with what Iqbal described as the spirit of modern times..”
As someone who created at great personal cost at an American university twenty years ago the book Foundations of Pakistan’s Political Economy: Towards an Agenda for the 1990s, I have a special interest in hoping that Pakistan shall find the path of wisdom.”
I was born in Tehran because my parents were Indian diplomats there, and I would love to go back to visit Iran someday. Not right now though as the country seems to be plunging itself into a new Revolution and yesterday’s Revolutionaries are today’s Reactionaries in a way that George Orwell would have understood and might have predicted. (Back in December 1982, at the American Economic Association meetings in New York City, a man looking surprisingly similar to Mr Mohammad Ahmadinajad approached me after I had read a paper “Economic Theory and Development Economics” to a large audience, introducing himself as a member of the UN delegation of the new Islamic Republic, giving me his card which I never kept… a story for another time…)
It would appear to me that the right political course of action would be for the disputed poll to be cancelled — with the consent and indeed at the statesmanlike initiative of its declared winner; to be followed by a short interregnum for normalisation and a calming down of all tempers to occur; and then for fresh polls to occur within, say, two or three months, taking transparent precautions that such an ugly mess not be repeated.
Yesterday the PM is reported to have been asked by someone travelling on his aeroplane from Moscow “whether he had forgiven Advani for calling him a ‘weak Prime Minister’”.
The question was absurd, almost ridiculous, typical of our docile ingratiating rather juvenile English-language press and media, as if any issue of forgiveness arises at all about what one politician says during an election campaign about another politician’s performance in office.
Dr Manmohan Singh’s answer was surprising too: “I was compelled to reply to what Advani said…On May 16 when (Advani) telephoned me, he told me that he was hurt by some of my statements. He said he was hurt and regretted his statements… I apologised to him if I have hurt him. I am looking forward to a close relationship with the Leader of the Opposition.”
So LK Advani appears to have apologised to Manmohan Singh and Manmohan Singh to LK Advani for what they said about each other during the recent general election campaign! What is going on? Were they schoolboys exchanging fisticuffs in a school playground or elderly men battling over power and policy in modern Indian politics?
What would we have done if there was a Churchill in Indian politics today – hurling sarcastic insults at domestic opponents and foreign leaders while guiding a nation on its right course during turbulent times?
Churchill once famously said his parents had not shown him “The Boneless Wonder” in PT Barnum’s circus because it was too horrible a sight but now he had finally seen such a “Boneless Wonder” in his opponent on the Treasury Benches, namely, Ramsay MacDonald. Of the same opponent he said later “He has the gift of compressing the largest number of words into the smallest amount of thought”.
When accused of being drunk by a woman MP he replied “And you are very ugly, but tomorrow I’ll be sober”. Today’s politically correct world would scream at far less. Field Marshall Montgomery told Churchill, “I neither drink nor smoke and am 100% fit,” to which Churchill replied, “I drink and smoke and I am 200% fit”. That too would be politically incorrect today.
Churchill described Prime Minister Clement Attlee as “a modest man with much to be modest about”; also about Attlee: “If any grub is fed on Royal Jelly it turns into a Queen Bee”. Yet Attlee had enough dignity and self-knowledge and self-confidence to brush it all off and instead respect and praise him. In the 1954 volume Winston Spencer Churchill Servant of Crown and Commonwealth Attlee added his own tribute to his great opponent: “I recall…the period when he was at odds with his own party and took a seat on the Bench below the Gangway on the Government side. Here he was well placed to fire on both parties. I remember describing him as a heavily armed tank cruising in No Man’s Land. Very impressive were the speeches he delivered as the international horizon grew darker. He became very unpopular with the predominant group in his own party, but he never minded fighting a lone battle.”
Stanley Baldwin, who as PM first appointed Churchill as Chancellor of the Exchequer, once said “There comes Winston with his hundred horsepower mind”. Yet Churchill was to later say harshly “I wish Stanley Baldwin no ill, but it would have been much better had he never lived.”
Of Lenin, Churchill said, he was “transported in a sealed truck like a plague bacillus from Switzerland into Russia”. Of Molotov: “I have never seen a human being who more perfectly represented the modern concept of a robot.” Of Hitler, “If [he] invaded hell I would at least make a favourable reference to the devil in the House of Commons”. Of De Gaulle, “He was a man without a country yet he acted as if he was head of state”.” Of John Foster Dulles, “[He] is the only bull who carries his china shop with him”. Of Stafford Cripps, British Ambassador to the USSR, “…a lunatic in a country of lunatics”; and also “There but for the Grace of God, goes God”.
Politics is, and should be, grown up stuff because it deals with human lives and national destinies, and really, if you can’t take the heat please do not enter the kitchen. The slight Churchillian sarcasm that does arise within modern Indian politics comes very occasionally from Bihar but nowhere else, e.g. about the inevitability of aloo in samosas and of bhaloos in the jungle but no longer of Laloo being in the seat of power. In general, everyone seems frightfully sombre and self-important though may be in fact short of self-knowledge and hence self-confidence.
What had Manmohan Singh said about LK Advani that he felt he had to apologise for? That Advani had no substantial political achievement to his credit and did not deserve to be India’s PM. Manmohan was not alone in making the charge – Sonia Gandhi, Rahul Gandhi and numerous other spokesmen and representatives of their party said the same. Has Manmohan’s apology to Advani been one on behalf of the whole Congress Party itself?
Was Advani’s apology to Manmohan one on behalf of the whole BJP too?
What had the BJP charged Manmohan with that Advani felt he had to apologise for? Being a “weak PM”.
Hmmm. Frankly, thinking about it, it is hard to count who has not been weak as a PM in India’s modern history.
Certainly Vallabhai Patel as a kind of co-PM was decisive and far from weak back in 1947-48.
Lal Bahadur Shastri was not weak when he told Pakistan that a Pakistani attack on Kashmir would result in an Indian attack on Pakistan.
Indira Gandhi was not weak when she resisted the Yahya Khan-Tikka Khan tyranny against Bangladesh.
Had he not been assassinated, Rajiv Gandhi in a second term would have been decisive and not weak in facing up to and tackling the powerful lobbies and special interest groups that have crippled our domestic economic policy for decades.
But the number of such examples may be counted by hand. Perhaps VP Singh might count, riding in an open jeep to Amritsar, as might AB Vajpayee’s Pokhran II and travelling on a bus to Lahore. In general, the BJP’s charge that Manmohan was “weak” may have constructively led to serious discussion in the country about the whole nature of the Prime Ministership in modern India, which means raising a whole gamut of issues about Indian governance – about India being the softest of “soft states”, with the softest of “soft government budget constraints” (i.e., endless deficit finance and paper money creation) etc.
Instead, what we have had thus far is apologies being exchanged for no real political reason between the leaderships of the Government and the Opposition. If two or three sellers come to implicitly carve up a market between themselves they are said by economic theory to be colluding rather than being in competition. Indian politics may be revealing such implicit collusive behaviour. The goal of this political oligopoly would seem to be to preserve and promote the status quo of the post-1947 Dilli Raj with its special hereditary nomenclatura, at the expense of anonymous diffused teeming India.
Subroto Roy
Postscript July 15 2009: Churchill’s mature opinion of Baldwin was one of the fullest praise at the 20 May 1950 unveiling of a memorial to him. See his In the Balance, edited by Randolph S Churchill, 1951, p. 281
A lawyer friend tells me she thinks it a “technicality” that there is no Lok Sabha or Parliament in India today despite eleven long days and nights having passed since the 15th Lok Sabha came to be elected by the people of India. “At least we did not get Advani and Modi to rule”, is how she sought to justify the current circumstance. I am afraid I think she has produced a non sequitur, and also forgotten the constitutional law she would have read as a student.
The best argument that I think the Government of India shall be able to give justifying their legal error in not having the 15th Lok Sabha up and running yet 11 days after India’s people have spoken would run something like this:
(1) The President of India invites a Council of Ministers led by a PM to form the government and has done so.
(2) The President must be satisfied that the PM commands a majority in the Lok Sabha, and the President has been satisfied by the 322 “letters of support” that the PM produced.
(3) The Government of the day calls parliamentary sessions and does so at its discretion, and the Government of the day headed by this PM has announced when it shall call the 15th Lok Sabha which will be in a few days yet.
Any such argument, I am afraid, would be specious because it simply puts the cart before the horse.
Parliament is sovereign in India, to repeat what I have said several times before.
Parliament is sovereign in India — not even the President who is the symbol of that sovereignty. We do not follow the British quite exactly in this because we are a republic and not a monarchy. In Britain sovereignty rests with “The King in Parliament”. With us, Parliament is sovereign and the President is the symbol of that sovereignty. In all matters of state, our President must act in a manner that Parliament and parliamentary law says.
Parliament is sovereign in India — not the Executive Government, certainly not its largest political party or its leader.
Parliament is sovereign in India because the people of India have chosen it to be so within the Constitution of India.
Parliament is sovereign in India and the people of India have elected the 15th Lok Sabha which has still not been allowed to meet eleven days later.
To the contrary, as noted days ago, the purported “Cabinet” of the 14th Lok Sabha, a dead institution, met on May 18 2009, some 48 hours after the 15th Lok Sabha had already been declared! The 14th Lok Sabha in fact stood automatically dissolved in law when General Elections came to be announced.
Is all this merely a “technicality” as my friend believes? I think not.
Executive Government in India derives its political legitimacy from being elected by Parliament, i.e., from holding the confidence of Parliament, and that means the Lok Sabha.
The Government of the day might for sake of convenience have a prerogative of calling sessions of the 15th Lok Sabha once it has been constituted but the Government of the day cannot logically constitute a Lok Sabha after a General Election because it itself receives legitimacy from such a Lok Sabha.
If the 15th Lok Sabha has not met, confidence in any Executive has yet to be recorded, and hence any such Government has yet to receive legitimacy.
Do “322 letters of support” suffice? Hardly. They are signed after all by persons who have yet to take their seats in the Lok Sabha! (Let us leave aside the fact that the PM, not being a member of the Lok Sabha, is in this case unable to be one of those 322 himself!)
Yet we have 79 “Ministers” of this new “Government” holding press-conferences and giving out free-bees and favours etc already. As I have said before, Ambedkar, Nehru and others of their generation, plus Indira and Rajiv too, would all have been appalled.
Because the incompetence of the fascists and communists in the Opposition may continue to be expected, it will be up to ordinary citizens and voters of India to point out such simple truths whenever the Emperor is found to be naked. (Our docile juvenile ingratiating media may well remain mostly hopeless.)
There are at least three Supreme Court lawyers, all highly voluble, among the higher echelons of Congress Party politicians; it is surprising that not one of them has been able to get the top Party leadership of Sonia Gandhi and Manmohan Singh to see the apparent breach of normal constitutional law in Parliament not having met more than 10 days after it was elected.
A Government has been formed, Ministers have entered their offices and have been holding press-conferences and taking executive decisions, wannabe-Ministers continue to be wrangling night-and-day for the plums of office — BUT THERE IS NO PARLIAMENT!
Today is the death-anniversary of Jawaharlal Nehru and last week was the death anniversary of Rajiv Gandhi.
Nehru, whatever his faults and infirmities, was an outstanding parliamentarian and a believer in the Westminster model in particular. He was intimately familiar with its unpoken customs and unwritten laws. He would have been completely appalled by the situation today where luminaries of the party that goes by the same name as the one he had led are paying obeisance to his memory 45 years after his death but have failed to see the absurdity in having a Government in office with no new Parliament ten days after a month-long General Election was over! (Incidentally, had he not left explicit instructions against any hero-worship taking place of himself too?)
Rajiv knew his grandfather and had acquired a sense of noblesse oblige from him. He too would have been appalled that the procedural business of government had been simply procrastinated over like this.
It surprises me that Dr Manmohan Singh, having been a post-graduate of Cambridge, having earned a doctorate from Oxford, and more recently having been awarded honorary doctorates from both Ancient Universities, should seem so unaware of the elements of the Westminster model of constitutional jurisprudence which guides our polity too.
It is too late now and the mistakes have been made. I hope his new Government will come to realise at some point and then keep in mind that our Executive receives political legitimacy from Parliament, not vice versa. An Executive can hardly be legitimately in office until the Parliament that is supposed to elect it has been sworn in.
As for our putative Opposition in the Parliament-yet-to-meet, it seems to have drawn a blank too, and eo ipso revealed its own constitutional backwardness and lethargy.
The power of organised Big Business over New Delhi’s economic policies (whether Congress-led or BJP-led) was signalled by the presence in the audience at Rashtrapati Bhavan last week of several prominent lobbyists when Dr Manmohan Singh and his senior-most Cabinet colleagues were being sworn-in by the President of India. Why were such witnesses needed at such an auspicious national occasion?
Organised Big Business (both private sector and public sector) along with organised Big Labour (whose interests are represented most ably by New Delhi’s official communist parties like the CPI-M and CPI), are astutely aware of how best to advance their own economic interests; this usually gets assisted nicely enough through clever use of our comprador English-language TV, newspaper and magazine media. Shortly after the election results, lobbyists were all over commercial TV proposing things like FDI in insurance and airports etc– as if that was the meaning of the Sonia-Rahul mandate or were issues of high national priority. A typical piece of such “pretend-economics” appears in today’s business-press from a formerly Leftist Indian bureaucrat: “With its decisive victory, the new Manmohan Singh government should at last be able to implement the required second generation reforms. Their lineaments (sic) are well known and with the removal of the Left’s veto, many of those stalled in the legislature as well as those which were forestalled can now be implemented. These should be able to put India back on a 9-10 per cent per annum growth rate…”
Today’s business-press also reports that the new Government is planning to create a fresh “Disinvestment Ministry” and Dr Singh’s chief economic policy aide is “a frontrunner among the names short-listed to head the new ministry” with Cabinet rank.
That being said, I have to say I think a new Indian policy of creating a Ministry to privatise India’s public sector is probably a very BAD idea indeed in present circumstances — mainly because it will be driven by the interests of the organised Big Business lobbies that have so profoundly and subtly been able to control the New Delhi Government’s behaviour in recent decades.
Now our Government every year produces paper rupees and bank deposits in practically unlimited amounts to pay for its practically unlimited deficit financing, and it has behaved thus over decades. Why we do not hear about this at all is because the most prominent Government economists themselves remain clueless — sometimes by choice, mostly by sheer ignorance — about the nature of the macroeconomic process that they are or have been part of. (See my “India’s Macroeconomics”, “The Dream Team: A Critique” etc elsewhere here). As for the Opposition’s economists, the less said about the CPI-M’s economists the better while the BJP, poor thing, has absolutely no economists at all!
Briefly speaking, Indian Big Business has acquired an acute sense of this long-term nominal/paper expansion of India’s economy, and as a result acts towards converting wherever possible its own hoards of paper rupees and rupee-denominated assets into more valuable portfolios for itself of real or durable assets, most conspicuously including hard-currency denominated assets, farm-land and urban real-estate, and, now, the physical assets of the Indian public sector. Such a path of trying to transform local domestic paper assets – produced unlimitedly by Government monetary and fiscal policy and naturally destined to depreciate — into real durable assets, is a privately rational course of action to follow in an inflationary economy. It is not rocket-science to realise the long-term path of the Indian rupee is downwards in comparison to the hard-currencies of the world – just compare our money supply growth and inflation rates with those of the rest of the world.
The Statesman of November 15 2006 had a lead editorial titled Government’s land-fraud: Cheating peasants in a hyperinflation-prone economy. It said:
“There is something fundamentally dishonourable about the way the Centre, the state of West Bengal and other state governments are treating the issue of expropriating peasants, farm-workers, petty shop-keepers etc of their small plots of land in the interests of promoters, industrialists and other businessmen. Singur may be but one example of a phenomenon being seen all over the country: Hyderabad, Karnataka, Kerala, Haryana, everywhere. So-called “Special Economic Zones” will merely exacerbate the problem many times over. India and its governments do not belong only to business and industrial lobbies, and what is good for private industrialists may or may not be good for India’s people as a whole. Economic development does not necessarily come to be defined by a few factories or high-rise housing complexes being built here or there on land that has been taken over by the Government, paying paper-money compensation to existing stakeholders, and then resold to promoters or industrialists backed by powerful political interest-groups on a promise that a few thousand new jobs will be created. One fundamental problem has to do with inadequate systems of land-description and definition, implementation and recording of property rights. An equally fundamental problem has to do with fair valuation of land owned by peasants etc. in terms of an inconvertible paper-money. Every serious economist knows that “land” is defined as that specific factor of production and real asset whose supply is fixed and does not increase in response to its price. Every serious economist also knows that paper-money is that nominal asset whose price can be made to catastrophically decline by a massive increase in its supply, i.e. by Government printing more of the paper it holds a monopoly to print. For Government to compensate people with paper-money it prints itself by valuing their land on the basis of an average of the price of the last few years, is for Government to cheat them of the fair present-value of the land. That present-value of land must be calculated in the way the present-value of any asset comes to be calculated, namely, by summing the likely discounted cash-flows of future values. And those future values should account for the likelihood of a massive future inflation causing decline in the value of paper-money in view of the fact we in India have a domestic public debt of some Rs. 30 trillion (Rs. 30 lakh crore) and counting, and money supply growth rates averaging 16-17% per annum. In fact, a responsible Government would, given the inconvertible nature of the rupee, have used foreign exchange or gold as the unit of account in calculating future-values of the land. India’s peasants are probably being cheated by their Government of real assets whose value is expected to rise, receiving nominal paper assets in compensation whose value is expected to fall.”
Mamata Banerjee started her famous protest fast-unto-death in Kolkata not long afterwards, riveting the nation’s attention in the winter of 2006-2007.
What goes for the government buying land on behalf of its businessman friends also goes, mutatis mutandis, for the public sector’s real assets being bought up by the private sector using domestic paper money in a potentially hyperinflationary economy. If Dr Singh’s new Government wishes to see real public sector assets being sold, let the Government seek to value these assets not in inconvertible rupees which the Government itself has been producing in unlimited quantities but rather in forex or gold-units instead!
Today’s headline says “Short of cash, govt. plans to revive disinvestment ministry”. Big Business’s powerful lobbies will suggest that real public assets must be sold (to whom? to organised Big Business of course!) in order to solve the grave fiscal problems in an inflationary economy caused precisely by those grave fiscal problems! What I said in 2002 at IndiaSeminar may still be found to apply: I said the BJP’s privatisation ideas “deserve to be condemned…because they have made themselves believe that the proceeds of selling the public sector should merely go into patching up the bleeding haemorrhage which is India’s fiscal and monetary situation… (w)hile…Congress were largely responsible for that haemorrhage to have occurred in the first place.”
If the new Government would like to know how to proceed more wisely, they need to read and grasp, in the book edited by myself and Professor John Clarke in 2004-2005, the chapter by Professor Patrick Minford on Margaret Thatcher’s fiscal and monetary policy (macroeconomics) before they read the chapter by Professor Martin Ricketts on Margaret Thatcher’s privatisation (microeconomics). India’s fiscal and monetary or macroeconomic problems are far worse today than Britain’s were when Thatcher came in.
During the recent Election Campaign, I contrasted Dr Singh’s flattering praise in 2005 of the CPI-M’s Buddhadeb Bhattacharjee with Sonia Gandhi’s pro-Mamata line in 2009 saying the CPI-M had taken land away from the poor. This may soon signal a new fault-line in the new Cabinet too on economic policy with respect to not only land but also public sector privatisation – with Dr Singh’s pro-Big Business acolytes on one side and Mamata Banerjee’s stance in favour of small-scale unorganised business and labour on the other. Party heavyweights like Dr Singh himself and Sharad Pawar and Pranab Mukherjee will weigh in one side or the other with Sonia being asked in due course to referee.
I personally am delighted to see the New Rahul Gandhi deciding not to be in Government and to instead reflect further on the “common man” and “common woman” about whom I had described his father talking to me on September 18 1990 at his home. Certainly the “aam admi” is not someone to be found among India’s organised Big Business or organised Big Labour nor their paid lobbyists in the big cities.
We in India did not invent the idea of Parliament, the British did. Even the British did not invent the idea of a “Premier Ministre”, the French did that, though the British came to develop its meaning most. Because these are not our own inventions, when something unusual happens in contemporary India to political entities and offices known as “Parliament”, “Prime Minister” etc, contrast and comparison is inevitable with standards and practices that have prevailed around the world in other parliamentary democracies.
Indeed we in India did not even fully invent the idea of our own Parliament though the national struggle led by the original Indian National Congress caused it to come to be invented. The Lok Sabha is the outcome of a long and distinguished constitutional and political history from the Morley-Minto reforms a century ago to the Montagu-Chelmsford reforms and Government of India Act of 1919 to the Government of India Act of 1935 and the first general elections of British India in 1937 (when Jawaharlal Nehru briefly became PM for the first time) and in due course the 1946 Constituent Assembly. Out of all this emerged the 1950 Constitution of India, drafted by that brilliant jurist BR Ambedkar as well as other sober intelligent well-educated and dedicated men and women of his time, and thence arose our first Lok Sabha following the 1951 General Elections.
“What are Lok Sabha Members and State MLAs legitimately required to be doing in caring for their constituents? First of all, as a body as a whole, they need to elect the Government, i.e. the Executive Branch, and to hold it accountable in Parliament or Assembly. For example, the Comptroller and Auditor General submits his reports directly to the House, and it is the duty of individual legislators to put these to good use in controlling the Government’s waste, fraud or abuse of public resources. Secondly, MPs and MLAs are obviously supposed to literally represent their individual constituencies in the House, i.e. to bring the Government and the House’s attention to specific problems or contingencies affecting their constituents as a whole, and call for the help, funds and sympathy of the whole community on their behalf. Thirdly, MPs and MLAs are supposed to respond to pleas and petitions of individual constituents, who may need the influence associated with the dignity of their office to get things rightly done. For example, an impoverished orphan lad once needed surgery to remove a brain tumour; a family helping him was promised the free services of a top brain surgeon if a hospital bed and operating theatre could be arranged. It was only by turning to the local MLA that the family were able to get such arrangements made, and the lad had his tumour taken out at a public hospital. MPs and MLAs are supposed to vote for and create public goods and services, and to use their moral suasion to see that existing public services actually do get to reach the public.”
What about the Rajya Sabha? I said in the same article:
“Rajya Sabha Members are a different species altogether. Most if not all State Legislative Councils have been abolished, and sadly the present nature of the Rajya Sabha causes similar doubts to arise about its utility. The very idea of a Rajya Sabha was first mooted in embryo form in an 1888 book A History of the Native States of India, Vol I. Gwalior, whose author also advocated popular constitutions for the “Indian India” of the “Native States” since “where there are no popular constitutions, the personal character of the ruler becomes a most important factor in the government… evils are inherent in every government where autocracy is not tempered by a free constitution.” When Victoria was declared India’s “Empress” in 1877, a “Council of the Empire” was mooted but had remained a non-starter even until the 1887 Jubilee. An “Imperial Council” was now designed of the so-called “Native Princes”, which came to evolve into the “Chamber of Princes” which became the “Council of the States” and the Rajya Sabha. It was patterned mostly on the British and not the American upper house except in being not liable to dissolution, and compelling periodic retirement of a third of members. The American upper house is an equal if not the senior partner of the lower house. Our Rajya Sabha follows the British upper house in being a chamber which is duty-bound to oversee any exuberance in the Lok Sabha but which must ultimately yield to it if there is any dispute. Parliament in India’s democracy effectively means the Lok Sabha — where every member has contested and won a direct vote in his/her constituency. The British upper house used to have an aristocratic hereditary component which Tony Blair’s New Labour Government has now removed, so it has now been becoming more like what the Rajya Sabha was supposed to have been like.”
The Canadian upper house is similar to ours in intent: a place for “sober second thought” intended to curb the “democratic excesses” of the lower house. In the Canadian, British, Australian, Irish and our own cases, the Prime Minister, as the chief executive of the lower house has immense indirect power over the upper house, whether in appointing members or even, in the Australian case, dissolving the entire upper house if he/she wishes.
Now yesterday apparently Shrimati Sonia Gandhi, as the duly elected leader of the largest political party in the 15th Lok Sabha, accompanied by Dr Manmohan Singh, as her party’s choice for the position of Prime Minister, went to see the President of India where the Hon’ble President apparently appointed Dr Singh to be the Prime Minister of India – meaning the Prime Minister of the 15th Lok Sabha, except that Dr Singh is not a member of the Lok Sabha and apparently has had no intent of becoming one.
In 2004 Shrimati Gandhi had declined to accept an invitation to become PM and instead effectively recommended Dr Singh to be PM despite his not being a member of the Lok Sabha nor intending to be so. This exploited a constitutional loophole to the extent that the drafters of our 1950 Constitution happened not to have explicitly stated that the PM must be from the Lok Sabha. But the reason the founders of our democratic polity such as BR Ambedkar and Jawaharlal Nehru did not specify that the PM must be from the Lok Sabha was quite simply that it was a matter of complete obviousness to them and to their entire generation that this must be so— it would have been appalling to them and something beyond their wildest imagination that a later generation, namely our own, would exploit such a loophole and allow a PM to be appointed who is not a member of the Lok Sabha and intends not to be so.
Ambedkar, Nehru and all others of their time knew fully well that the history and intended purpose of the Lok Sabha was completely different from the history and intended purpose of the Rajya Sabha. They knew too fully well that Lord Curzon had been explicitly denied the leadership of Britain’s Tory Party in 1922 because that would have made him a potential PM when he was not prepared to be a member of the House of Commons. That specific precedent culminated a centuries’-old democratic trend of political power flowing from monarchs to lords to commoners, and has governed all parliamentary democracies worldwide ever since — until Dr Singh’s appointment in 2004.
When such an anomalous situation once arose in Britain, Lord Home resigned his membership of the House of Lords to contest a House of Commons seat as Sir Alec Douglas Home so that he could be PM in a manner consistent with parliamentary law.
Dr Singh instead for five years remained PM of India while not being a member of the Lok Sabha. Even if reasons and exigencies of State could have been cited for such an anomalous situation during his first term, there was really no such reason for him not to contest the 2009 General Election if he wished to be the Congress Party’s prime ministerial candidate a second time. Numerous Rajya Sabha members alongside him have contested Lok Sabha seats this time, and several have won.
As of today, Dr Singh is due to be sworn in tomorrow as Prime Minister for a second term while still having no declared intention of resigning from the Rajya Sabha and contesting a Lok Sabha seat instead. What the present-day Congress has done is elect him the leader of the “Congress Parliamentary Party” and claim that it is in such a capacity that he received the invitation to be Prime Minister of India. But surely if the question had been asked to the Congress Party under Nehru or Indira or Rajiv: “Can you foresee a circumstance ever in which the PM of India is not a member of the Lok Sabha?” their answer in each case would have been a categorical and resounding “no”.
So the question does arise why the Congress under Sonia Gandhi has with deliberation allowed such an anomalous situation to develop. Its effect is to completely distort the trends of relative political power between the Lok Sabha and Rajya Sabha. On the one hand, the Lok Sabha’s power is deliberately made to diminish as the chief executive of the Government of India shall not be from the Lok Sabha but from “the other place” despite the Lok Sabha having greater political legitimacy by having been directly elected by India’s people. This sets a precedent that might get repeated in India in the future but which contradicts the worldwide trend in parliamentary democracies over decades and centuries in precisely the opposite direction – of power flowing in the direction of the people not away from them. On the other hand, the fact this anomalous idea has been pioneered by the elected leader of the largest political party in the Lok Sabha while her PM is in the Rajya Sabha causes a member of the lower house to have unexpected control over the upper house when the latter is supposed to be something of an independent check on the former!
It all really seems an unnecessary muddle and a jumbling up of normal constitutional law and parliamentary procedure. The Sonia-Manmohan Government at the outset of its second term should hardly want to be seen by history as having set a poor precedent using brute force. The situation can be corrected with the utmost ease by following the Alec Douglas Home example, with Dr Singh being given a relatively safe seat to contest as soon as possible, if necessary by some newly elected Congress MP resigning and allowing a bye-election to be called.
Close to 389 million valid votes were cast in India’s previous General Election in 2004 to the 14th Lok Sabha, according to the Election Commission’s volume STATISTICAL REPORT ON GENERAL ELECTIONS, 2004 TO THE 14th LOK SABHA VOLUME III (DETAILS FOR ASSEMBLY SEGMENTS OF PARLIAMENTARY CONSTITUENCIES).
Unfortunately, the Election Commission, like the Government of India in general, remains extremely uncomfortable with using Excel or any spreadsheets at all, and hence much of the information they provide remains unproductive — reflecting, I am afraid, rather obsolescent technology and organisation and management. From an Excel spreadsheet I have had to create for myself using EC data, my calculations give the following breakdown of the votes received in 2004 by most of the larger political parties:
That accounts for 372,382,530. The precise total of valid votes that I get by tabulating EC data using my spreadsheet is 388,920,557. The EC itself reports in the very same document a total of 388,672,504. The percentage difference is close enough to zero but it should be zero itself; I shall be delighted if my spreadsheet’s total is the incorrect one somehow, even though it uses the EC’s own data; but it does lead me to ask: “Who, if anyone, audits the Election Commission’s numerical calculations and vote tallies? Why is India’s ordinary public not informed about all this and other processes of the Election Commission perfectly transparently as a matter of routine? Is reform necessary of the processes and procedures of the Election Commission itself?”.
(Incidentally, the slight discrepancy in the totals could have arisen perhaps because my spreadsheet does, correctly, include the relatively small number of postal ballots, whereas the EC’s total possibly has not done.)
Raw votes like those described above do not of course translate directly into seats in Parliament but even so they indicate the state of popular political opinion in 2004. By how much will that popular opinion be found to have changed in 2009? How will demographic changes, and the delimitation exercise that has redrawn constituencies, affect the new outcomes? These are the kind of grown-up adult questions to ask yourself if you get bored with the endless pretentious waffle that emerges from our talking-heads on TV etc regarding the ongoing election.
Notice too the 16.5 million people of India who voted in 2004 for Independents! What on earth has made Dr Manmohan Singh recently initiate an absurd debate against them?
Here below as well is the full list of all parties that were in contention in 2004; if you want to know the vote-share any of them received according to my spreadsheet, send in a comment to this post and I shall try to respond. Better still, look up the EC volume mentioned and create your own spreadsheet from its data, and tell me how accurate mine is. (But beware, the spreadsheet will have some 60,000 rows to start with!)
We appear to have no serious academic political science or voting theory available in the public domain in India today, despite our having the world’s vastest electorate. Our rather juvenile national-level media too often passes off personal gossip and wild speculation as analytical discussion.
There has been zero mention of the fact that the 15th Lok Sabha is the result of a brand new delimitation (or redistricting) exercise. Hence an enormous amount of uncertainty must be added to all calculations and attempts at prediction. Many old Assembly constituencies have been moved to new Lok Sabha constituencies — for example, Tollygunge was part of the old Calcutta South but is not anymore; Allahabad West and Allahabad North are not part of the new Allahabad Lok Sabha constituency, etc etc. What this means is that even if the actual votes received in 2009 were identical to those in 2004, there would be different electoral outcomes marginally and hence, most probably, in aggregate as well. The only thing not to be surprised by with the results after voting in this Election may be surprise itself!
[Postscript April 25: I am glad to see that two days after this post, one national newspaper has ever so slightly begun to realise the significance of delimitation.]
Here are some data based on the EC’s raw data to allow a better picture. It is placed here in the public interest; please check against the EC’s raw data before operational use.
First published in The Statesman Jan 13 2006 Editorial Page Special Article,
By Subroto Roy
The Speaker does not like the fact the High Court has issued notices questioning the procedure he followed in expelling MPs from Parliament. Sonia Gandhi’s self-styled “National Advisory Council” has demanded control over disbursement of 100,000,000,000 rupees of public money. The Manmohan Singh Government plans to quietly ignore the Supreme Court’s finding that it had breached India’s Constitution in imposing President’s Rule in Bihar. All three issues have to do with application of India’s Separation of Powers Doctrine, i.e. the appropriate delimitation of Constitutional powers between our Legislature, Executive and Judiciary.
A constitutional crime was attempted in India during the Indira-Sanjay Gandhi political “Emergency” declared on 26 June 1975. On 10 November 1975 (a time of press censorship) a 13-judge Bench of the Supreme Court met to hear the Government plead for overrule of Kesavananda Bharati (A.I.R. 1973 S.C. 1461), a landmark Nani Palkhivala once called “the greatest contribution of the Republic of India to constitutional jurisprudence”. Within two days, the Government had failed in the Court, and Kesavananda held. What was upheld? That while India’s Parliament was sovereign and could amend the Constitution, the amending power may not be used to alter or destroy “the basic structure or framework of the Constitution”. And the Supreme Court decides for itself whether Parliament has exceeded its legitimate power to amend.
Basic structure Palkhivala’s description of what constitutes the “basic structure or framework” of India’s Constitution is excellent enough: “the rule of law, the right to personal liberty and freedom from arbitrary arrest and imprisonment, the right to dissent which implies the freedom of speech and expression and a free press are… a part of the basic structure of a free democracy, and it is these priceless human freedoms which cannot be destroyed by Parliament in exercise of its amending power. Thus Kesavananda’s case ensures that tyranny and despotism shall not masquerade as constitutionalism.”
Palkhivala argued that, if anything, the aspects of Kesavananda that needed to be set aside were those that had over-ruled Golaknath (A.I.R. 1967 S.C. 1643) which said Parliament should not be held to have the power to abridge any fundamental right, indeed any amended article which abrogates any fundamental right is invalid.
Dicey said “In the principle of the distribution of powers which determines its form, the constitution of the United States is the exact opposite of the English constitution.” Kesavananda Bharati showed the midway point between the two in constitutional jurisprudence anywhere in the world. We are like the Americans and unlike the British first in being a Republic, and secondly in having an explicit written Constitution. We are like the British and unlike the Americans in being a parliamentary democracy where the Executive Branch of Government, namely the Prime Minister and his/her Cabinet is elected from within the Legislative Branch of Government, namely, Parliament, and must at all times retain the confidence of the latter, specifically the Lok Sabha, the House of the People.
The American Executive Branch has a directly-elected President who chooses his administration, and it is commonplace for him to not have the confidence of the Upper or Lower House of the Legislature, to the point that one recent president had to undergo impeachment proceedings and barely survived. There is no constitutional crisis in America if the Legislature loathes the President and wishes him out. The American President and his Executive Branch stay in office until the last minute of his fixed term.
PM answers to Parliament In our system, the Prime Minister answers at all times to Parliament. Parliament in India’s democracy has normally meant the House of the People — where every member has contested and won a direct vote in his/her constituency. India’s current Lok Sabha has set a constitutional precedent not seen in more than a hundred years anywhere in electing an Executive led by someone not a member. The British Upper House used to have an aristocratic hereditary component which Mr Blair’s New Labour Government has removed, making it more like what the Rajya Sabha was supposed to be — except that by now our Rajya Sabha has tended to become a place for party worthies who have lost normal elections, superannuated cinematic personalities, perpetual bureaucrats still seeking office, and others who really should be at home helping to raise the grandchildren. Parliament may not have fully recovered its health ever since that constitutional crime committed against the Republic known as the Indira-Sanjay “Emergency” (and at least one member of Sanjay’s coterie wields much power today).
Crimes and misdemeanours The Supreme Court’s finding that the Government breached the Constitution by imposing President’s Rule in Bihar is a finding not of a constitutional crime but of a constitutional misdemeanour. (For reasons given already in these columns on 20 October 2005, it has nothing to do with the President, who merely embodies the sovereignty of our Republic.) For an Executive Order or Legislative Act to be found by a competent Court as being unconstitutional means merely that it does not have to be obeyed by citizens. In the Bihar case, the Supreme Court found this consequence irrelevant because new elections were already in process, the result of which would come from the most authentic democratic voice possible, namely, the same people who elect the House of the People in the first place. India’s Executive has been found to have committed a constitutional misdemeanour, for which it needed to apologise to the Court and Parliament (who are its constitutional co-equals) and then ask the latter to renew its confidence — in which event, life goes on. If confidence was not renewed, the Government would fall and a new Government would have to be formed. But we do not have yet the idea of a backbench revolt —mainly because all the front benches themselves have tended to be in such confusion and disarray with regard to parliamentary traditions, processes and functions.
The Supreme Court as the ultimate protector of the Constitution would be well within its prerogative to oversee whether a Parliamentary Speaker has acted appropriately. Consider a hypothetical case. Once elected, a Speaker is supposed to have no party-affiliation ever more for the rest of his/her life. Suppose, hypothetically, a controlled experiment found a Speaker systematically biased in favour of his/her own former party-members and against their opponents. Where but the Courts could such arbitrariness be effectively remonstrated against? Even if the incumbent Speaker impossibly imagines himself the personal embodiment of the Legislative Branch, he is not beyond the Constitution and therefore not beyond India’s Separation of Powers’ Doctrine.
The Opposition had alleged that the Speaker failed to follow procedure which required the culprits in the expulsion case be referred to the Privileges Committee. But beyond that the Opposition was too confused and guilt-ridden to pursue the matter during the dying moments of Parliament’s Winter Session. In the clear light of day, the issue has now ended up in the Courts. If the Supreme Court eventually rules the Speaker had in fact failed to follow Parliament’s own procedures (and hence breached Constitutional practices), the Speaker would need to apologise to the Courts and the House that elected him, and perhaps offer to fall on his sword.
Finally, for the “National Advisory Council”, a wholly unelected body, to demand a say for itself over spending Rs. 100 billion in State and Union Government budget-making, would be another constitutional misdemeanour — unless its members are merely on the personal staff of the Hon’ble Member representing Rae Bareili, who may of course introduce whatever legislation on money-bills that any other Lok Sabha Member may do.
An address by Professor Subroto Roy to the Asia-Pacific Public Relations Conference, (panel on Transparency chaired by C. R. Irani) January 30 1998.
This talk is dedicated to the memory of my sister Suchandra Bhattacharjee (14.02.1943-10.01.1998).
1. I would like to talk about transparency and economic policy-making in our country. For something to be transparent is, in plain language, for it to be able to be openly seen through, for it to not to be opaque, obscure or muddy, for it to be clear to the naked eye or to the reasonable mind. A clear glass of water is a transparent glass of water. Similarly, an open and easily comprehensible set of economic policies is a transparent set of economic policies.
The philosopher Karl Popper wrote a famous book after the Second World War titled The Open Society and its Enemies. It contained a passionate defence of liberal institutions and democratic freedoms and a bitter attack on totalitarian doctrines of all kinds. It generated a lot of controversy, especially over its likely misreading of the best known work of political philosophy since the 4th Century BC, namely, Plato’s Republic .[1] I shall borrow Popper’s terms ‘open society’ and ‘closed society’ and will first try to make this a useful distinction for modern times, and then apply it to the process of economic policy-making in India today.
2. An open society is one in which the ordinary citizen has reasonably easy access to any and all information relating to the public or social interest — whether the information is directly available to the citizen himself or herself, or is indirectly available to his or her elected representatives like MP’s and MLA’s. Different citizens will respond to the same factual information in different ways, and conflict and debate about the common good will result. But that would be part of the democratic process.
The assessment that any public makes about the government of the day depends on both good and bad news about the fate of the country at any given time. In an open society, both good news and bad news is out there in the pubic domain — open to be assessed, debated, rejoiced over, or wept about. If we win a cricket match or send a woman into space we rejoice. If we lose a child in a manhole or a busload of children in a river, we weep. If some tremendous fraud on the public exchequer comes to be exposed, we are appalled. And so on.
It is the hallmark of an open society that its citizens are mature enough to cope with both the good and the bad news about their country that comes to be daily placed before them. Or, perhaps more accurately, the experience of having to handle both good and bad news daily about their world causes the citizens in an open society to undergo a process of social maturation in formulating their understanding of the common good as well as their responses to problems or crises that the community may come to face. They might be thereby thought of as improving their civic capacities, as becoming better-informed and more discerning voters and decision-makers, and so becoming better citizens of the country in which they live.
The opposite of an open society is a closed society — one in which a ruling political party or a self-styled elite or nomenclatura keep publicly important information to themselves, and do not allow the ordinary citizen easy or reasonably free access to it. The reason may be merely that they are intent on accumulating assets for themselves as quickly as they can while in office, or that they are afraid of public anger and want to save their own skins from demands for accountability. Or it may be that they have the impression that the public is better off kept in the dark — that only the elite nomenclatura is in position to use the information to serve the national interest.
In a closed society it is inevitable that bad news comes to be censored or suppressed by the nomenclatura, and so the good news gets exaggerated in significance. News of economic disasters, military defeats or domestic uprisings gets suppressed. News of victories or achievements or heroics gets exaggerated. If there are no real victories, achievements or heroics, fake ones have to be invented by government hacks — although the suppressed bad news tends to silently whisper all the way through the public consciousness in any case.
Such is the way of government propaganda in almost every country, even those that pride themselves on being free and democratic societies. Dostoevsky’s cardinal advice in Brothers Karamasov was: “Above all, never lie to yourself”. Yet people in power tend to become so adept at propaganda that they start to deceive themselves and forget what is true and what is false, or worse still, cannot remember how to distinguish between true and false in the first place. In an essay thirty years ago titled Truth and Politics, the American scholar Hannah Arendt put it like this:
“Insofar as man carries within himself a partner from whom he can never win release, he will be better off not to live with a murderer or a liar; or: since thought is the silent dialogue carried out between me and myself, I must be careful to keep the integrity of this partner intact, for otherwise I shall surely lose the capacity for thought altogether.”[2]
3. Closed societies may have been the rule and open societies the exception for most of human history. The good news at the end of the 20th Century is surely that since November 7 1989, when the Berlin Wall fell, the closed society has officially ceased to be a respectable form of human social organization. The age of mass access to television and telecommunications at the end of the 20th Century may be spelling the permanent end of totalitarianism and closed societies in general. The Berlin Wall was perhaps doomed to fall the first day East Germans were able to watch West German television programs.
Other than our large and powerful neighbour China, plus perhaps North Korea, Myanmar, and some Islamic countries, declared closed societies are becoming hard to find, and China remains in two minds whether to be open or closed. No longer is Russia or Romania or Albania or South Africa closed in the way each once was for many years. There may be all sorts of problems and confusions in these countries but they are or trying to become open societies.
Under the glare of TV cameras in the 21st Century, horrors like the Holocaust or the Gulag or even an atrocity like Jalianwalla Bag or the Mai Lai massacre will simply not be able to take place anywhere in the world. Such things are not going to happen, or if they do happen, it will be random terrorism and not systematic, large scale genocide of the sort the 20th Century has experienced. The good news is that somehow, through the growth of human ingenuity that we call technical progress, we may have made some moral progress as a species as well.
4. My hypothesis, then, is that while every country finds its place on a spectrum of openness and closedness with respect to its political institutions and availability of information, a broad and permanent drift has been taking place as the 20th Century comes to an end in the direction of openness.
With this greater openness we should expect bad news not to come to be suppressed or good news not to come to be exaggerated in the old ways of propaganda. Instead we should expect more objectively accurate information to come about in the public domain — i.e., better quality and more reliable information, in other words, more truthful information. This in turn commensurately requires more candour and maturity on the part of citizens in discussions about the national or social interest. Closed society totalitarianism permitted the general masses to remain docile and unthinking while the nomenclatura make the decisions. Dostoevsky’s Grand Inquisitor said that is all that can be expected of the masses. Open society transparency and democracy defines the concept of an ordinary citizen and requires from that citizen individual rationality and individual responsibility. It is the requirement Pericles made of the Athenians:
“Here each individual is interested not only in his own affairs but in the affairs of the state as well; even those who are mostly occupied with their own business are extremely well-informed on general politics – this is a peculiarity of ours: we do not say that a man who takes no interest in politics is a man who minds his own business; we say that he has no business here at all.”[3]
5. All this being said, I am at last in a position to turn to economic policy in India today. I am sorry to have been so long-winded and pedantic but now I can state my main substantive point bluntly: in India today, there is almost zero transparency in the information needed for effective macroeconomic policy-making whether at the Union or State levels. To illustrate by some examples.
(A) Macroeconomic policy-making in any large country requires the presence of half a dozen or a dozen well-defined competing models produced by the government and private agencies, specifying plausible causal links between major economic variables, and made testable against time-series data of reasonably long duration. In India we seem to have almost none. The University Economics Departments are all owned by some government or other and can hardly speak out with any academic freedom. When the Ministry of Finance or RBI or Planning Commission, or the India teams of the World Bank or IMF, make their periodic statements they do not appear to be based on any such models or any such data-base. If any such models exist, these need to be published and placed in the public domain for thorough discussion as to their specification and their data. Otherwise, whatever is being predicted cannot be assessed as being very much more reliable than the predictions obtained from the Finance Minister’s astrologer or palmist. (NB: Horse-Manure is a polite word used in the American South for what elsewhere goes by the initials of B. S.). Furthermore, there is no follow-up or critical review to see whether what the Government said was going to happen a year ago has in fact happened, and if not, why not.
(B) The Constitution of India defines many States yet no one seems to be quite certain how many States really constitute the Union of India at any given time. We began with a dozen. Some 565 petty monarchs were successfully integrated into a unitary Republic of India, and for some years we had sixteen States. But today, do we really have 26 States? Is Delhi a State? UP with 150 million people would be the fifth or sixth largest country in the world on its own; is it really merely one State of India? Are 11 Small States de facto Union Territories in view of their heavy dependence on the Union? Suppose we agreed there are fifteen Major States of India based on sheer population size: namely, Andhra, Assam, Bihar, Gujarat, Haryana, Karnataka, Kerala, MP, Maharashtra, Orissa, Punjab, Rajasthan, Tamil Nadu, UP and West Bengal. These States account for 93% of the population of India. The average population of these 15 Major States is 58 million people each. That is the size of a major country like France or Britain. In other words, the 870 million people in India’s Major States are numerically 15 Frances or 15 Britains put together.
Yet no reliable, uniformly collected GDP figures exist for these 15 States. The RBI has the best data, and these are at least two years old, and the RBI will tell you without further explanation that the data across States are not comparable. If that is the case at State-level, I do not see how the national-level Gross Domestic Product can possibly be estimated with any meaningfulness at all.
(C) Then we hear about the Government Budget deficit as a percentage of GDP. Now any national government is able to pay for its activities only by taxation or borrowing or by using its monopoly over the domestic medium of exchange to print new money. In India today, universal money-illusion seems to prevail. It would not be widely recognised by citizens, journalists or policy-makers that, say, 100,000 Rupees nominally taxed at 10% under 20% inflation leaves less real disposable income than the same taxed at 20% with 5% inflation. This is in part because inflation figures are unknown or suspect. There is no reliable all-India or State-level consumer price index. The wholesale price index on the basis of which the Government of India makes its inflation statements, may not accurately reflect the actual decline in the purchasing power of money, as measured, say, by rises in prices of alternative stores of value like land. The index includes artificially low administered or subsidized prices for petroleum, cereals, and electricity. To the extent these prices may be expected to move towards international equilibrium prices, the index contains a strong element of deferred inflation. One urgent task for all macroeconomic research in India is construction of reliable price-data indices at both Union and State levels, or at a minimum, the testing for reliability by international standards of series currently produced by Government agencies.
Without reliable macroeconomic information being spread widely through a reasonably well-informed electorate, the Government of India has been able to wash away fiscal budget constraints by monetization and inflation without significant response from voters. The routine method of meeting deficits has become “the use of the printing press to manufacture legal tender paper money”, either directly by paying Government creditors “with new paper money specially printed for the purpose” or indirectly by paying creditors “out of loans to itself from the Central Bank”, issuing paper money to that amount. Every Budget of the Government of India, including the most recent ones of 1996 and 1997, comes to be attended by detailed Press discussion with regard to the minutae of changes in tax rates or tax-collection — yet the enormous phenomena of the automatic monetization of the Government’s deficit is ill-understood and effectively ignored. Historically, a policy of monetization started with the British Government in India during the Second World War, with a more than five-fold increase in money supply occurring between 1939 and 1945. Inflation rates never seen in India before or since were the result (Charts 0000), attended by the Great Famine of 1942/43. Though these were brought down after succession of C. D. Deshmukh as Governor of the Reserve Bank, the policy of automatic monetization did not cease and continues until the present day. Inflation “sooner or later destroys the confidence, not only of businessmen, but of the whole community, in the future value of the currency. Then comes the stage known as “the flight from the currency.” Had the Rupee been convertible during the Bretton Woods period, depreciation would have signalled and helped to adjust for disequilibrium. But exchange-controls imposed during the War were enlarged by the new Governments of India and Pakistan after the British departure to exclude convertible Sterling Area currencies as well. With the Rupee no longer convertible, internal monetization of deficits could continue without commensurate exchange-rate depreciation.
The Reserve Bank was originally supposed to be a monetary authority independent of the Government’s fiscal compulsions. It has been prevented from developing into anything more than a department of the Ministry of Finance, and as such, has become the captive creditor of the Government. The RBI in turn has utilized its supervisory role over banking to hold captive creditors, especially nationalized banks whose liabilities account for 90% of commercial bank deposits in the country. Also captive are nationalized insurance companies and pension funds. Government debt instruments show on the asset side of these balance-sheets. To the extent these may not have been held had banks been allowed to act in the interests of proper management of depositors’ liabilities and share-capital according to normal principles, these are pseudo-assets worth small fractions of their nominal values. Chart 0000 shows that in the last five years the average term structure of Government debt has been shortening rapidly, suggesting the Government is finding it increasingly difficult to find creditors, and portending higher interest rates.
General recognition of these business facts, as may be expected to come about with increasing transparency, would be a recipe for a crisis of confidence in the banking and financial system if appropriate policies were not in place beforehand.
(D) As two last examples, I offer two charts. The first shows the domestic interest burden of the Government of India growing at an alarming rate, even after it has been deflated to real terms. The second tries to show India’s foreign assets and liabilities together – we always come to know what is happening to the RBI’s reserve levels, what is less known or less understood is the structure of foreign liabilities being accumulated by the country. Very roughly speaking, in terms that everyone can understand, every man, woman and child in India today owes something like 100 US dollars to the outside world. The Ministry of Finance will tell you that this is not to be worried about because it is long-term debt and not short-term debt. Even if we take them at their word, interest payments still have to be paid on long-term debt, say at 3% per annum. That means for the stock of debt merely to be financed, every man, woman and child in India must be earning $3 every year in foreign exchange via the sale of real goods and services abroad. I.e., something like $3 billion must be newly earned every year in foreign exchange merely to finance the existing stock of debt. Quite clearly, that is not happening and it would stretch the imagination to see how it can be made to happen.
In sum, then, India, blessed with democratic political traditions which we had to take from the British against their will — remember Tilak, “Freedom is my birthright, and I shall have it” — may still be stuck with a closed society mentality when it comes to the all-important issue of economic policy. There is simply an absence in Indian public discourse of vigourous discussion of economic models and facts, whether at Union or State levels. A friendly foreign ambassador pointedly observed an absence in India of political philosophy. It may be more accurate to say that without adequate experience of a normal agenda of government being seen to be practised, widespread ignorance regarding fiscal and monetary causalities and inexperience of the technology of governance remains in the Indian electorate, as well as among public decision-makers at all levels. Our politicians seem to spend an inordinate amount of their time either garlanding one another with flowers or garlanding statues and photographs of the glorious dead. It is high time they stopped to think about the living and the future.
[1] Renford Bambrough (ed.) Plato, Popper and Politics: Some Contributions to a Modern Controversy, 1967.
[2] Philosophy, Politics and Society, 2nd Series, Peter Laslett & W. G. Runciman (eds.), 1967.
[3] Thucydides, History of the Pelopennesian War, II.40.
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