Let the decision be taken by Kashmir -- by Ram Jathmalani Back   Home  

The problem that continues like a festering sore on our body politic is that of Jammu and Kashmir. Last year’s Kargil episode is a reminder of our political bankruptcy and ineptitude. We owe it to ourselves to heal this sore otherwise it might well erupt into a nuclear war. Political bankruptcy is not confined to ruling parties of the past or of the present. No political party has been able to offer any solution or even formulate a clear cut policy which may one day bring in a solution. Five years ago, I floated a new party and named it Pavitra Hindustan Kazagam. A good part of the party’s manifesto was devoted to the Kashmir solution.

I reproduce it, for after more than half a decade I would not like to change one word: “The most difficult problem with menacing possibilities is the problem of Kashmir. The problem is getting worse with every day that passes. None of the parties has any solution. The Congress cannot have one because it refuses to acknowledge the errors of its erstwhile leaders whose portraits it copiously uses to garner votes. Its list of monumental errors is big and shows how short-term political interest has led to the permanent alienation of the majority of the State’s inhabitants. A ceasefire should never have been agreed upon when we were about to push the last raider out of the State; Simla Agreement should never have been entered into when the Pak Army suffered a massive defeat and Bhutto was grinding his nose in the dust; Kashmir Accord of 1975 between Indira Gandhi and Sheikh Abdullah should have been honestly executed in letter and spirit and the Farooq government should never have been dismissed in July 1984. It is since then that the situation has become too messy for our politicians to handle.

Our guiding star should have been the Tashkent Declaration and insistence on its scrupulous observance. All glib talk about the restoration of political process is sheer nonsense if not plain deception.

The BJP has only one solution to the Kashmir problem — the repeal of Article 370; something which cannot be done without an unconstitutional coup. The Left parties still believe that the Russian veto in the Security Council is the last word on the subject.

The new party will honour all its commitments to the people of J&K. Article 370 will remain in every part of the State which wants its retention. All restrictions on the State’s autonomy surreptitiously imposed will be undone and withdrawn. But there are certain things which the Government of India shall not accept unless it is compelled to do so by defeat in an all-out war. Not one inch of the territory shall be ceded to a political dispensation which is not fully democratic and secular.

The so-called Islamic Republic that has been installed in Pakistan Occupied Kashmir will have to be dismantled. The non-Muslim inhabitants of the State will have Constitutionally entrenched fundamental rights of freedom and equality enforced by an independent judiciary.

Negotiations towards this end will commence only when insurgency stops and Pakistan recognises that infiltration, subversion and terrorism are totally inconsistent with international law and binding covenants between the two countries. Any excessive use of force or blatant violation of human rights by any instrument of the State will be investigated and ruthlessly punished.

At the same time, the militants must be made to realise the futility of their operations. While our moral and legal deeds to Kashmir are perfect, our own commitment to human rights and freedom must make us do some serious introspection about the wisdom of retaining by force unwilling and resentful elements within the Union at unbearable cost to the national exchequer. Have we satisfied the legitimate democratic aspirations of the genuinely patriotic and freedom loving elements in Kashmir is a question we have to answer to our own conscience.

However much we may pretend, Kashmir is an international problem. The solution must reflect our overall foreign policy which for long has been in shambles. Only till the last reshuffle, it was headed by a sick man or rather a cripple, mental and physical. Our Constitution makers bequeathed to us by a written testament the basic principles of our foreign policy. We forgot them and went in for a spurious and dangerous product — the Panchsheel — manufactured and marketed by Pandit Nehru & Co.

Its first deadly symptoms were the betrayal of Tibet, advocacy of a Chinese seat in the Security Council, the humiliation of 1962 and our gradually slipping into the Soviet bloc. Even with the disappearance of the Soviet Empire and the end of the Cold War, no political party has regained any coherence or compass.

The new party will reaffirm its obligations under the 51st Article of the Constitution, stand firmly by the rule of international law and strike lasting friendships with countries that practise democracy and abide by the rule of law...”

The extract cited refers to the Tashkent Declaration as our guiding star. It may be recalled that by August 1965, Pakistan had formulated a new plan to seize Kashmir through a swift and surprise attack. A force of 30,000 men comprising both regulars, Mujahideen and Razakars under the command of General Mallik, launched a subversion campaign.

On September 1, 1965, the Pakistan Army launched a massive attack in the Chamb sector. Fortunately, for us, the brave Indian Army successfully repelled this attack by mounting a counter operation on the Lahore border within the next few days. President Ayub lost the war and the USSR assumed the role of honest broker.

Through its efforts on January 10, 1966, the Tashkent Declaration was signed in the presence of Soviet leaders Kosygin and Bulganin by Indian Prime Minister Lal Bahadur Shastri on behalf of India and the President Ayub Khan on behalf of his country.

The Tashkent Declaration was a remarkable document and it hit upon the final solution of the problem. Both the sides firmly resolved to restore normalcy and peaceful relations between their countries.

What is more important is that they affirmed their obligations under the United Nations Charter, never to have to recourse to force and to settle their disputes only through peaceful means. Tension between the two countries had to go.

All Army personnel had to be withdrawn to the positions held prior to August 5, 1965. Having abjured the use of force they proceeded to declare that no side will indulge in any propaganda directed against the other and the only propaganda which they would countenance would be one which promotes the development of friendly relations between the two.

Lastly, they agreed that the two sides will meet to discuss the questions relating to refugees, exodus of people, restoration of property and assets. They were not to meet to find a final solution of the Kashmir problem, because the declaration was the final solution itself.

If two countries agree to exclude war as well as propaganda for changing the LoC, it should be obvious to meanest intelligence that the Kashmir problem stood solved. Understandably the political atmosphere in the Valley calmed down within a short time Sheikh Abdullah was released and peace prevailed.

Five years later, Pakistan suffered another humiliating defeat in what is called the Bangladesh War. That war had nothing directly to do with Kashmir. But Indira Gandhi committed an unforgivable criminal folly in putting her signature on the Simla Agreement.

Its first serious defect was that it contained no reaffirmation of the Tashkent Declaration, a reflection of the secret desire of Indira Gandhi to write Lal Bahadur Shastri out of Indian political history. Its second catastrophic defect was that in the final paragraph, the expression “final settlement of Jammu & Kashmir” was smuggled in, thereby unsettling what had already been settled in Tashkent.

Every successive government since then has been guilty of gross wooden-headedness in never invoking the Tashkent Declaration which is still binding and stops Pakistan legally and morally from raising the Kashmir dispute in any forum.

International law does not recognise the right of any part of a country to secede whatever be the wishes of its inhabitants in isolation. No wonder Pakistan has always argued that the accession of J&K to India was brought about by fraud and force. This is plainly a justifiable issue and India can at all times challenge Pakistan to seek a judicial verdict on this issue. It must be understood that an adverse verdict will be treated as a decree of permanent silence against Pakistan.

There still remains the question of our own proclaimed values and interests. Can India put an end to insurgency and terrorism at a bearable cost and should we, even if we can, hold in bondage a large number of people who owe us no loyalty or emotional attachment? To my mind the answer is a strong “no”.

The ceasefire during Ramzan or its extension for a few days or even months or a bus journey to Lahore are at worst futile pieces of deception and at best image-building exercises and clever moves on the international chess board. Unless the frozen postures of the past are abandoned and fresh mechanisms created for the settlement of the problem there is no hope of peace and prosperity. I envisage and would advise the following steps to be immediately taken:

We must declare that we are willing at all times to discuss the solution of the Kashmir problem with the representatives of the inhabitants of J&K as well as the government of Pakistan whether at the same time or at different times.

No part of the territory held by India, not even a square inch thereof, will be parted with until and unless satisfactory guarantees are provided that any future polity will be both secular and democratic under which all religious, ethnic and linguistic minorities will enjoy complete equality in respect of political, social and economic rights. These rights shall be enforceable by an independent judiciary and the continuance of such a polity shall be guaranteed by the United Nations.

Ladakh will become a centrally administered area. Jammu will be absorbed in the Indian Union and become a normal State free from Article 370 of the Constitution.

Pakistan will vacate its portion of the Valley which will be united with the other Indian held territory ie., apart from Jammu and Ladakh. In this unified Valley a referendum will be held under formal Indian sovereignty but supervised by the UN.

The inhabitants of the Valley will have three options before them, to accede to India or to accede to Pakistan or to remain independent. In case the inhabitants decide to become independent, their defence and sovereignty will be guaranteed by India, Pakistan and the UN. It will have no Army or foreign relations.

India will have the right to take suitable steps military and otherwise in the event of substantial violation of the terms of this covenant.

Published in the Jan. 23, 2001 issue of Deccan Chronicle, this article is writen by Ram Jathmalani. He is a well known lawyer, former Union Minister and very controversial person who creates controversies with what every he do or say.