Is JK Disputed Territory?

During a heated discussion at an iftaar party last week, one participant said that the on-going movement was a futile exercise because India had not accepted Jammu and Kashmir as a dispute. But the answer to whether New Delhi needs to accept the state as disputed territory lies in the beleaguered state’s history. If, for the sake of argument, the Instrument of Accession is considered valid and legal, then Jammu and Kashmir is an internationally recognized dispute, and New Delhi is word-bound to settle it in accordance with the wishes of the people.

Mountbatten’s letter of October 27, 1947 to Maharaja Hari Singh calls the accession conditional, and White Paper the Government of India came out with in 1948 describes the accession as “valid but purely provisional.” (Page 3)

The dispute haunts Indians, notwithstanding the resolutions passed by the Parliament from time to time.

One adopted 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 it has no relevance. Addressing a seminar on Self Rule a few years ago, senior counsel and People’s Democratic Party (PDP) leader, Muzaffar Husain Beig 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 1994 resolution, which also states that India would take ‘Azad Jammu and Kashmir (AJK)’ back from Pakistan, Beig 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 Frontline:

“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 it administers. It differs from the Resolution of March 13, 1990, based on a joint statement by Prime Minister VP Singh, Rajiv Gandhi, AB Vajpayee, LK Advani, HK Singh 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). SA 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 Kashmir is no longer a dispute. Successive Indian governments have been passing resolutions stating that Jammu and 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 dropped Kashmir from its agenda. The action evoked a severe reaction across the world. The Security Council was forced to put it back on its agenda, and Pakistan 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 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 observers from Jammu and Kashmir, but the UNO refused. When asked about it, the former Indian Prime Minister, Atal Behari Vajpayee, replied: “It does not cause India any harm.”

And last, if not the least, the clueless people of India are told that Kashmir cannot be let go, as it is Kashmir that binds the huge country together, and that letting Kashmir go 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.

-feedback: dinzahir@gmail.com  

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