Accepting Jammu Kashmir as a disputed territory is a legal and historical compulsion for New Delhi. If accession is valid then dispute is very much there and has to be settled through a reference to the people
Does New Delhi need to accept Jammu Kashmir as a disputed territory? The answer lies in history of the beleaguered state. If the validity and legality of instrument of accession is accepted for the sake of arguments, then Jammu Kashmir is an internationally recognized and accepted dispute.
By virtue of the instrument of accession, New Delhi bound to settle the dispute in accordance with the wishes of the people. Accepting Jammu Kashmir as a disputed territory is legal compulsion for New Delhi. If accession is valid then the dispute is to be settled through a reference to the people.
Mountbatten’s letter of October 27, 1947 to Maharaja Hari Singh calls the accession conditional. The government of India came out with a White Paper on Jammu Kashmir in 1948. It called the accession “valid but purely provisional.” (Page 3).
New Delhi has tried its best to digest the Kashmir meal by taking legislative, administrative and extra-constitutional measures. But, the dispute still haunts Indians notwithstanding the resolutions passed by the Parliament from time to time. A Resolution was unanimously adopted and unanimously passed on February 22, 1994.
It reads: This House notes with deep concern Pakistan’s role in imparting training to the terrorists in camps located in Pakistan and Pakistan Occupied Kashmir, the supply of weapons and funds, assistance in infiltration of trained militants, including foreign mercenaries into Jammu and Kashmir with the avowed purpose of creating disorder, disharmony and subversion:
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."
Renowned legal experts believe it has no relevance. Senior counsel and People’s Democratic Party (PDP) leader, Muzaffar Husain Beig while addressing a seminar on Self Rule last year said: “Centre has to roll back several constitutional Articles extended to Jammu and Kashmir. Article 1 in Indian constitution vis-a-vis schedule one regarding Jammu and Kashmir must be rolled back. Besides Article 372 and section 4 of Jammu and Kashmir constitution also need to be rolled back,” said Beigh, while addressing party seminar titled ‘Is Self Rule a way forward to the resolution of Jammu and Kashmir’.
About the resolution by Indian parliament in 1994 which states that India will take back ‘Azad Jammu and Kashmir (AJK)’ 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, A G 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 in administers. It differs from the Resolution of March 13, 1990, based on a joint statement by Prime Minister V P Singh, Rajiv Gandhi, AB 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".
Notwithstanding the opinion of Muzaffar Husain Beig and A G Noorani, Syed ALI Geelani seems scared of the resolution. He has been urging India to accept Jammu Kashmir as a disputed territory for the past several years. This is not needed. Geelani is perhaps the only person who is fully aware of the content and relevance of United Nations Resolutions on Kashmir. It was India that took the issue to the Security Council. India, in its capacity as complainant cannot go back on its stand. New Delhi cannot say Kashmir is no longer a dispute. Successive Indian governments have been passing resolutions stating Jammu Kashmir was an integral part of India but never has New Delhi 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 severe reaction across the world. The Security Council was forced to place it back on its agenda. However, 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 a disputed territory.
What is United Nations Military Observer’s group (UNMOG) doing in Srinagar? If Kashmir no longer is a dispute, the UNMOG must go. In 1972 after signing the Simla Agreement, New Delhi asked the UNO to withdraw its military observer from Jammu Kashmir. But the UNO refused. The former Indian Prime Minister, Atal Behari Vajpayee was asked about it. He said: “It does not cause any harm to India.”
And last but not the least, the ignorant people of India are told that Kashmir cannot be left alone. It is Kashmir that binds a huge country like India together. Leaving Kashmir alone would result in disintegration of India. This is an admission that secularism, socialism and democracy have not integrated India effectively during the past six decades. It is Kashmir that has done the job for India. If this is true, then Indians have to do some serious thinking.
Shockingly, the people of India have started believing this. But for their information Kashmiris do not like India and cannot, therefore, act as an effective binding material.
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