The Modi Government has never shown any consistency in dealing with Pakistan about the Kashmir problem which Pakistan obstinately claims as the unfinished agenda of India’s partition. Our leaders, the old discarded ones and the ones installed in office last year are equally incompetent in handling it. They neither understand the strength of India’s case nor are they able to silence Pakistan’s persistent propaganda painting India as an unlawful occupant of the state which Pakistan owns. This piece is intended to put an end to Pakistan’s false and wholly unbelievable claim for all time and to educate those whose job it is to expose. Pakistan’s mendacity and the hollowness of its propaganda.
We must go back to the late forties to understand the Muslim League behaviour when the nation was facing the prospect of Partition of the country. One of the subjects discussed was the fate of ‘Paramountcy’ enjoyed by the British Crown in all the princely states of India numbering hundreds. The Muslim League had its eyes on Hyderabad ruled by the Nizam who enjoyed full nominal sovereignty but controlled by the Paramountcy of the British Crown. Hyderabad was a Hindu majority state but ruled by a Muslim King or Prince and supported by his small army and of course the Razakars. The Indian National Congress committed to democracy of the British model wanted Paramountcy to vest in the people of the State. The Muslim League rejected this and won. Paramountcy was to devolve on the ruling prince or King. Pakistan’s plan was to secure Kashimr by force and Hyderabad by the Nizams Paramountcy. A fully armed section of the Pak army disguised as tribal’s invaded the state and almost – reached the outskirts of Srinagar the capital. In this emergency the ruling King acceded to the Union of India. Both under the Constitution as well as International Law the whole of Jammu and Kashmir became fully a legitimate part of sovereign India. The Indian forces succeeded in driving back the attacking tribals and they would have been thrown out of every inch of the state territory but the foolish Nehru accepted an armistice and a part of the state territory remained out of Indian control only de facto but not de jure. Make no mistake: by law domestic and international the title of India to the entire territory of the state of J&K (including what we call Pakistan Occupied Kashmir, POK) is unchallengeable in law.
Yes the United Nations did call for a plebiscite in the state but on condition that every tribal who participated in the illegitimate invasion of the state or who had just entered the state from outside was to quit, a condition never complied with by Pakistan.
Today it is Pakistan who under the Law of Nations is in unlawful occupant of a part of J&K and is under a legal duty to quit. Due to the long lapse of time the United Nations will not enforce a plebiscite the condition precedent to which was that the plebiscite will be a peaceful democratic operation under the de Jure and de facto rule of India with the Indian Flag being the only flag flying. India today is under no obligation to hold the plebiscite and Pakistan is legally bound to vacate the POK, every square inch of it. If Pakistan is agreeable India should be prepared to have the legal contention decided by the International Court of Justice once for all. India will doubtless win.
Now we turn to some matter of even greater relevance and conclusive effect. In 1965 Pakistan again resorted to an illegalwar to conquer the Indian part of the state by armed force. Pakistan miserably failed in this war of pure aggression and it has justly earned the contempt of civilized nations of the world. It ended by the Tashkent Declaration under the influence of the friendly Russians and the benign Saintly Prime Minister of India the late Lal Bahadur Shastri. Pakistan must be eternally grateful to the great and forgiving Indian. Its essence is in two promises:
Pakistan should be grateful for Indian magnanimity. Virtually India has made a moral promise not to claim any part of POK. But this assumes that Pakistan will never make any claim even to one inch of Indian Kashmir. If Pakistan repudiates by word or deed any part of the Tashkent Declaration, Indian claim to POK will remain fully alive and enforceable before any International Tribunal.
The full text of this document dated January 10, 1966 is appended hereto.
Now we got to another important event in the history of Jammu and Kashmir. The Constitution of Jammu and Kashmir was not framed by the Constituent Assembly which framed and promulgated the Constitution of India. The state of J&K acceded to the Union of India by an Instrument of Accession, Clause 8 of which provides:
“Nothing in this Instrument effects the continuance of my sovereignty in and over the State, or save as provided by or under this Instrument, the exercise of any power, authority and right now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.”
Article 2 of the Constitution of India reads as under:
“Parliament may by law admit into the Union, or establish new States on such terms and conditions as it thinks fit.”
Article 370 of the Constitution of India was a temporary provision but became a permanent feature by reason of the Constitution of J&K framed by its own Constituent Assembly and not by the Indian Parliament.
The J&K Constituent Assembly worked from November 1951 to November 1956 and the Constitution came into force on 28.11.1957. It expressly adopted some provisions of the Constitution of India which by Article 147 are not amendable.
In my opinion the Government of India has no power to change or amend the Constitution of the State. India cannot by any power lawfully vested in it can alter the boundaries or the Constitution of the State. India is in no position to accede to any Pakistan demands. India is not in unlawful occupation of any part of the state; even the POK is in law territory India can claim it for itself .
The Preamble of the free Constitution of Jammu & Kashmir states:
‘We, the people of the State of Jammu & Kashmir, having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty-sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure ourselves:-
Justice, social, economic and political; Liberty, of thought, expression, belief, faith and worship; Equality of status and of opportunity, and to promote among us all; Fraternity assuring the dignity of the individual and the unity of the nation; In our Constituent Assembly this seventeenth day of November, 1956 we do hereby adopt, enact and give to ourselves this constitution.’
The State of J&K is primarily governed by its own Constitution, unlike any other State in India, and Kashmir has voluntarily become part of a free, progressive, secular republic. That is azaadi, the highest political freedom a citizen can hope for. People who are blessed with genuine democracy, with constitutionally protected rights and duties of individuals, and an independent judiciary to enforce them, have attained true azaadi. Any violent action to secure more of it, or of a different kind or content, is a crime of terrorism and treason or both.
In 1971 Pakistan lost a very important part of what was collectively the whole of Pakistan. There could not be a stronger bond than simultaneous birth of both the western and eastern parts of Pakistan a unified state based on the bond of religious affinity. This entity broke up in hatred, violence and war. Bangladesh is now an independent friendly neighbour of India and our relations are Cordial in the real sense. Is it not such a different entity now with the eastern part wholly gone from Pakistan. The glue of the religious bond has not protected Pakistan’s territorial unity and constitutional oneness. By what rational argument is Pakistan now having some claim to J&K?
The State of Kashmir is not only the valley but Jammu and Ladhak too. The religious equation is entirely different in their vast areas. What then is the moral and political strength of Pakistan’s demand for more Muslim Majority territory when Islamabad could not hold on to Dacca. The history beliefs and religious practices of Sunni Pakistan have no resemblance to the Islam of the Kashmir valley. Even Sindhi Muslims have a strong movement for secession from Pakistan; many of them according to the will and testament of their deceased leader the late G.M Syed are keen to join secular India. Pakistan cannot just ignore the annual meetings that take place in Europe and U.S.A wanting secession from Pakistan.
Lastly, the moderate element in J&K has taken a rational and practical decision. It is no use some Pakistan leaders constantly describing their Kashmir struggle as the unfinished business of partition. This just makes no sense. It must be recognised that even in 1947 the Muslim majority states were not as a whole allowed to secede from India and join Pakistan. The provinces of Punjab, Bengal and Assam had to be sub-divided. It is more than clear that the inhabitants of Ladhak, a region which is almost two-thirds the area of the whole state, the inhabitants of Jammu and the inhabitants of Baltistan want passionately to remain united with India. They are completely opposed to joining Pakistan and have no desire for independence. The real dispute ultimately boils down to the Kashmir Valley, an area approximately 84 miles in length and much less miles in width, as against Ladakh, which alone is about 33,500 square miles. Although it sounds like a petty dispute on the face of it, the overtones and emotions are so strong that the Kashmir valley has been the cause of three wars between Pakistan and India during the last 50 years; strains of violence that explode every now and then, recurring cross border terrorism, and incalculable human and economic loss.
My work in the Kashmir Committee of which I am a founder member entered into a dialogue with important Hurriyat leaders. After prolonged meetings and discussions we reached an agreement with five salient features which need to be repeated. These have been published in my writings and books many years ago. These features are five:
A careful understanding of the five points of the agreement show that abrogation of Article 370 of the Constitution of India on the one hand and secession on the other were consciously and finally abandoned. The polestar of the peace process would thereafter be the legitimate interests and rational expectations of all elements and regions in the composite state.
This agreement brought joy to every Indian and to most Kashmiris. The moderate section of the Hurriyat had repudiated the extremists and, at the same time, carried on talking to the Kashmir Committee with the full concurrence of the Pakistan authorities. It is tragic that the usual wooden-headedness of the Government of India blocked a formal solution. At the International Kashmir Peace Conference held in Washington, my friend Ashraf Jehangir Kazi, the distinguished ambassador of Pakistan to the United States argued that the Kashmir Committee had initiated a process of acceptable change. If anyone refuses to accept this, it would only show that he is an enemy of peace, regardless of his pretended postures and rhetorical assertions. Since then, the state of Jammu and Kashmir has held elections, which , unlike the earlier ones, were acclaimed by the entire International community as free and fair following which a democratically elected government has functioned in the state, doubtless causing frustration to the sympathisers of Pakistan, overt and covert. An all party parliamentary delegation toured the state and revived the dialogue in 2010.
The problem has now been solved more than four times. Pakistan has no claim to any part of the state. It will even lose POK in a legal battle in an international forum. Let us all forget any serious changes in the state and whatever is good for the inhabitants of the state in both parts of it must be done in peaceful consultation and cooperation.
Copyright. All rights reserved. Ram Jethmalani. 2017.
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