May 8, 2001


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Needed: legal
    enlightenment, please
Don't spare the
    rod, Sushmaji
Our media's avowed
Let the nation beware
Should they first
    become conjurers?

Arvind Lavakare

This damned non-policy

It is driving one crazy. New Delhi's meandering non-policy on Jammu & Kashmir is transforming even the loyalists into lunatics. Taking over the decades-old stalemate from all previous governments, it was felt that the BJP-led coalition that displayed the gumption to explode Pokhran II on the world would do something similar with regard to J&K in its second innings that began towards the end of 1998. Miserable to record, it just hasn't happened.

First came the "hot pursuit" announcement that was quickly aborted for reasons unknown, or, rather, unannounced, to the nation. Then came the Lahore bus journey leading to a mere signed document that left the issue hanging on the failed concept of "bilateral talks" and led only to Kargil. What followed was a bilateral "cease-fire" quickly blown off by Syed Salahuddin. The Hurriyat were explored despite their Pak and other shady antecedents. Those blokes are still blocked on their cherished meet with terrorist outfits in Islamabad patronised by Pervez Musharraf.

This year came the "cease-fire" that was quickly clarified as "non-initiation of combat operations". Three extensions of NICO came next, even as the pre-condition of talks within Constitutional parameters gave way to unconditional talks. Though the Hurriyat have rejected such talks as being akin to boarding a train going nowhere, the Vajpayee government plods on aimlessly, almost apologetically, without a grain of affront or self-respect. Why?

"Clueless". That best describes the government's non-policy on J&K, and, therefore, the Indian citizen's perception of a problem that is confronting this country after the United Nations gave it up as a hopeless case in May 1964.

What confounds the Indian who has closely studied the complex history of the problem is why government after government hasn't stated its case before its own countrymen as well as before the whole world in a loud and clear manner. And, mind you, it is a case based on facts, irrefutable facts. That basic and updated fact-sheet is enumerated below:

1. Gulam Md Sadiq, deputed by Sheikh Abdullah (National Conference), made two visits to Karachi immediately after Independence to seek Pakistan's' approval on a plebiscite. Jinnah declared, "Sheikh Abdullah must close his shop" and did not give his consent to the plebiscite unless the National Conference guaranteed that its outcome would be J&K's accession to Pakistan. The National Conference rejected Pakistan's expectations (Dawn, Karachi, November 17, 1947).

2. There are two resolutions of the UNCIP (United Nations Commission of India and Pakistan) dated August 13, 1948 and January 5, 1949. Whereas the first resolution provided that "the future status of the state of J&K shall be determined in accordance with the will of the people" [allowing three possibilities -- a. accession to India or b. accession to Pakistan or c. remain independent], the second resolution provided that "The question of accession of the state of Jammu and Kashmir to India or Pakistan will be through the democratic method of a free and impartial plebiscite." Thus, the latter resolution excluded independence that some outfits in J&K are presently talking about.

3. Part II of the UN resolution of 13-8-1948 explicitly required, as a pre-condition to any consideration of the plebiscite, the complete withdrawal by Pakistan of all persons who had illegally entered the state of J&K. That condition was reiterated in the resolution of 5-1-1949. Pakistan has obstinately refused to comply with that condition all these years. (The Hurriyat johnnies just avoid that fact, and our media that interviews them ever so often just don't fox them on that one.)

4. India accepted the above two resolutions only on the basis of certain assurances given by the UNCIP. Among those assurances -- which form part of the official records of the Security Council -- are the following:

  • Plebiscite proposals shall not be binding upon India if Pakistan does not implement Parts I and II of the resolution of August 13, 1949.
  • Pakistan shall be excluded from all affairs of J&K, in particular in the plebiscite, if one is held.
  • The sovereignty of the J&K government over the entire territory of the state shall not be brought into question.
  • There shall be no recognition of the so-called Azad (Free) Kashmir government.
  • The territory occupied by Pakistan shall not be consolidated to the disadvantage of the state of J&K.
(Does anyone at all recall those UN assurances that are enough for India to take Pakistan to the International Court of Justice?)

5. Pakistan was categorically branded as an aggressor on September 5, 1950 by Sir Owen Dixon, who succeeded UNCIP as UN Representative for Indian and Pakistan. He said "When the frontier of the state of Jammu and Kashmir was crossed... by the hostile elements, it was contrary to international law and when, in May 1948, units of the regular Pakistan forces moved into the territory of the state, that too was inconsistent with international law." (Should we let this blatant aggressor and its lackeys bully and blackmail us now?)

6. 14 eminent Muslims (including ex-President Dr Zakir Hussain) deplored the aggression by Pakistan on J&K in October 1947 and lamented that Pakistani intruders committed atrocities on Kashmiris and dishonoured Muslim women. In a letter dated August 14, 1951 to the UN representative Dr Graham, they said: "It is a strange commentary on political beliefs that the same Muslims of Pakistan who (would) like the Muslims of Kashmir join them invaded the state (of J&K) in October 1947, killing and plundering Muslims in the state and dishonouring Muslim women, all in the interest of what they described as liberation of the state." (Isn't the same perversity behind the terrorists who proclaim jehad today?)

7. The "Will of the people of J&K" has already been expressed. Consider the following sequence of events:

  • On 27-10-1950, the General Council of All Jammu & Kashmir National Conference passed a resolution asking for convening a Constituent Assembly of J&K state.
  • On 1-5-1951, the Yuvraj of J&K issued a proclamation directing the formation of a Constituent Assembly consisting of peoples' representatives elected on the basis of adult franchise exercised by direct and secret ballot.
  • Elections under the above proclamation were completed by August 1951. Reporters and observers from all over the world described this election as free and fair.
  • The first meeting of that duly elected Constituent Assembly was held on 31-10-1951 when Sheikh Abdullah's opening address called that day as the "day of destiny. A day which comes only once in the life of a nation." He told the members then that whatever they decided had "the irrevocable force of law." One of the main objects of the Constituent Assembly, he declared then, was to declare its reasoned conclusions regarding the accession and the future of the state. He enumerated three alternatives: a. accession to India, b. accession to Pakistan c. complete independence. (The Hurriyat and everybody else have forgotten all those words of someone whom they nevertheless still revere.)
  • The Constitution Drafting Committee's report was presented to the Constituent Assembly on 12-2-1954 and adopted on 15-2-1954. The adoption of this report embodied the ratification of the state's accession to India.
  • This Constituent Assembly confirmed the accession of J&K to India. Thus, Section 3 of the Constitution of the J&K state declares that 'The state of J&K is and shall be an integral part of the Union of India'. Moreover, Section 147 of that Constitution forbids any amendment of its Section 3.
  • After the dissolution of the Constituent Assembly, elections to the new legislative assembly were held in March 1957. The second elections to the state assembly were held in 1962 -- under the supervision of the Election Commission of India. And so on.

    (If all of the above wasn't a momentous symbol of "the will of the people", what was it?)

    8. The legality of J&K's accession to India was never questioned by the UN Security Council or by UNCIP. In fact, on February 4, 1948, the US Representative in the Security Council said "The external sovereignty of Kashmir is no longer under the control of the Maharaja... with the accession of Jammu and Kashmir, this foreign sovereignty went over to India and is exercised by India, and that is how India happens to be here as a petitioner."

    9. The Legal Adviser to the UN Commission came to the conclusion that accession was legal and could not be questioned.

    10. J&K state is already the most autonomous of all states in India under the present Indian Constitution. Several of its provisions are just not applicable to J&K. Significant among the laws not applicable to J&K is the Indian Penal Code, 1860, and The Prevention of Corruption Act, 1988. And J&K will just collapse without the continuing financial munificence from New Delhi. Remember, the J&K state's fiscal deficit is Rs.10.4 billion -- more than 1.6 times its self-generated revenue. (What then is the autonomy that Farooq Abdullah and his cronies keep talking about?)

    11. In The Atlantic Monthly, September, 2000, internationally acclaimed observer, Robert Kaplan, writes that "...the fighting in Kashmir obscures the core issue -- institutional meltdown of Pakistan... that makes Pakistan so fragile." Chairman of the Gilgit-Baltistan Thinkers' Forum, Wajahat Hassan, states (The Times of India September 11, 2000) that "Pakistani rule cannot be spread over Gilgit and Baltistan". According to another report in The Times of India, September 19, 2000, Pakistani Muslim leaders, hurt by the dominance by the Punjabi-Pakistani-Muslims at the cost of the Mohajirs, Sindh, Baluchi, Pakhtoon people, have started calling the partition of 1947 a big blunder (Those in J&K who want to be a part of Pakistan seem ignorant of these harsh realities.)

    12. The democratically elected Indian Parliament's resolution of February 22, 1994 is still in force. That parliamentary resolution, made on behalf of the people of India, declared that:

    • "The state of Jammu & Kashmir has been, is and shall be an integral part of India and any attempts to separate it from the rest of the country will be resisted by all necessary means.
    • India has the will and capacity to firmly counter all designs against its unity, sovereignty and territorial integrity.
    • Pakistan must vacate the areas of the Indian state of Jammu and Kashmir, which they have occupied through aggression.
    • All attempts to interfere in the internal affairs of India will be met resolutely."

    (Does the Hurriyat or anybody else seriously expect New Delhi to bypass that resolution and commit suicide?)

    12. B Raman, Director, Institute of Topical Studies, Chennai, who also runs the South Asia Analysis Group, has recently pointed out "The Lashkar-e-Toiba, Jaish-e-Mohammad and the Army of Islam have declared that their agenda does not end with Kashmir... any success in Kashmir is only toward making Kashmir the gateway to their larger agenda of creating two Islamic nations in India... There were nine times as many acts of terrorism in J&K as in the rest of the world... The arms and ammunition recovered from the terrorists -- formally supplied by Pakistan -- would have been sufficient to equip at least one conventional Army Division." (This is something for our fundamental "secularists" who advocate a bhai-bhai relationship with Pakistan.)

    If only the above fact-sheet were translated into every conceivable language from Arabic to Urdu and whatever is spoken in Zimbabwe, and if that sheet was liberally propagated in India and elsewhere, the Government of India will be on the road to action in resolving the J&K problem. The first step, after all, is to shut the loud mouths of the Shabir Shahs, the Geelanis and the Bhats. The next step will be the search for the socio-economic ills that plague Farooq Abdullah's ill-governed state. Meanwhile, if a war is to be fought with all the terrorist groups, including Pakistan, so be it.

    The tragedy is that the Indian government doesn't understand the need to take even the preliminary step. That step is to tell one and all that in the territory they call Kashmir, there is a city as well as a district named Jammu, but there is neither a city nor a district named Kashmir. You see, nobody but nobody remembers that the troubled state is listed in the Indian Constitution as "Jammu and Kashmir", NOT as "Kashmir". Ignoring that basic factor is but a part of this damned non-policy.

    Arvind Lavakare

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