Does New Delhi need to acknowledge Jammu and Kashmir as disputed territory? The answer lies in the history of the beleaguered state. If the Instrument of Accession is supposed to be valid and legal, then Jammu and Kashmir is automatically an internationally recognized and accepted dispute. By virtue of the Instrument, New Delhi is word-bound to settle the question in accordance with the wishes of the people.
Mountbatten’s letter of October 27, 1947 to Maharaja Hari Singh describes the state’s accession as conditional. The White Paper the Government of India issued on Jammu and Kashmir in 1948 also termed the accession as “valid but purely provisional.”
The dispute haunts Indians, notwithstanding the resolutions passed by their Parliament from time to time.
One passed unanimously on February 22, 1994, reads:
“The Resolution on behalf of the people of India firmly declares that
(a) 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;
(b) India has the will and capacity to firmly counter all designs against its unity, sovereignty and territorial integrity; and demands that
(c) Pakistan must vacate the areas of the Indian State of Jammu and Kashmir, which they have occupied through aggression; and resolves that
(d) all attempts to interfere in the internal affairs of India will be met resolutely.”
Legal experts believe that this resolution has no relevance.
Addressing a seminar on Self Rule a few years ago, senior counsel and Peoples Democratic Party (PDP) leader Muzaffar Husain Beigh said: “The centre has to roll back several constitutional Articles extended to Jammu and Kashmir. Article 1 in the Indian Constitution vis-a-vis Schedule One regarding Jammu and Kashmir must be rolled back. Besides, Article 372 and Section 4 of the Jammu and Kashmir Constitution also need to be rolled back.”
About the Parliament’s 1994 resolution stating that India would take ‘Azad Jammu and Kashmir (AJK)’ back from Pakistan, Beigh said: “It is a paper tiger. India must roll back this resolution as well. Neither India nor Pakistan can take Kashmir controlled by each other. India should give up its claim on AJK.”
Similar views have been expressed by renowned jurist AG Noorani in one of his articles in the Frontline magazine:
“The parliament’s resolution of February 22, 1994, declares Jammu and Kashmir to be “an integral part of India” which is not contested and demands that Pakistan “vacate” the areas in administers. It differs from the Resolution of March 13, 1990, based on a joint statement by Prime Minister V.P. Singh, Rajiv Gandhi, A.B. Vajpayee, L.K. Advani, H.K. Surjeet and others, which referred to the people, not the land alone, and pledged ‘complete protection of their cultural and religious identity and full expression of their aspirations.’ The accord would do just that.
Both resolutions, however, are as irrelevant as the Lok Sabha’s resolution of November 14, 1962, on China, which affirmed a resolve ‘to drive out the aggressor.’
A resolution of Parliament is not law (Stockdale vs. Hansard, 1839, 9A & E1 and Bowles vs. Bank of England, 1913, 1 ch. 57). S.A. de Smith’s Constitutional and Administrative Law holds that such a resolution ‘has no legal effect outside the walls of Parliament… unless given such an effect by Act of Parliament.’”
New Delhi cannot say that Kashmir is no longer a dispute. Successive Indian governments have been passing resolutions to stress that Jammu Kashmir was an integral part of India, but New Delhi has never felt the need to withdraw its complaint from the Security Council. As long as the complaint is there, the dispute is there.
In December 1996, the Security Council triggered off severe reactions across the world when it dropped Kashmir from its agenda, and was forced to retrace its steps. Pakistan, however, was directed to raise the issue at regular intervals to keep it alive. So, the world body, of which India is a member, accepts Kashmir as disputed territory.
What is the United Nations Military Observer’s Group (UNMOG) doing in Srinagar? If Kashmir is no longer a dispute, the UNMOG must go. In 1972, after signing the Simla Agreement, New Delhi had asked the UNO to withdraw its Military Observer from Jammu and Kashmir. But the UNO refused. When questioned on this, the former Indian Prime Minister, Atal Behari Vajpayee, said: “It does not cause India any harm.”
And last, though not the least, the ignorant people of India are told that Kashmir cannot be left alone. That it was Kashmir that binds a huge country like India together. That leaving Kashmir alone would result in the disintegration of India. Shockingly, the people of India have started believing this. But for their information, Kashmiris do not like India and cannot, therefore, act as effective binding material.