Lasting solution to Kashmir dispute

For the first time in his political career Syed Ali Shah Geelani raised issues apart from his ideal i.e. the freedom of Kashmir. While reiterating his demand for freedom he asked the Indian state to fulfill his five conditions so that he can re-mould his agitation calendar. He at the same time conveyed that if these conditions are not fulfilled he may have to intensify the ongoing Quit Jammu and Kashmir Movement.

The five points apparently are a response to moderate separatist leaders demand for articulation on immediate concerns of Kashmiri society. The threat of intensification of agitation is directed towards New Delhi which while making countless promises has remained ruthless towards the wide spread unprecedented mobilization of Kashmir. The five points were surprising for New Delhi as it had never anticipated such incremental approach from a hard liner. Media reports indicated receptiveness of New Delhi to consider the points to normalize the deteriorating law and order situation. But its unwillingness to accept Jammu and Kashmir as a disputed territory seems to be impediment towards this line of action. Failure of the all parties meeting to come up with any response to these five points has depicted impotence of Indian state to take bold decisions and initiatives. The decision to send all parties’ delegation to Kashmir sounds illogical given the fact that most of those who participated in the discussion in all parties meeting appear to be unfamiliar or unwilling to understand the realities of Kashmir. It wouldn’t be out of place to suggest an orientation course on Kashmir for the new emerging breed of Indian leaders prior to their Kashmir engagements.  

CBMs

One wonders why Indian state should be unwilling to acceptance of Jammu and Kashmir as internationally disputed territory. Indian state has no logic for its hesitation to acknowledge Kashmir as a dispute. It has been doing so ever since the state was taken over by India through scandalous and unpopular deal of accession. The letter written by Governor General Mountbatten to Maharaja Hari Singh on  October 28, 1947 communicated that the acceptance of accession is provisional and subject to its ratification by  people of the state. Same was conveyed by the PM Nehru to Kashmiri’s, Pakistan and the United Nations for years consistently. It was Nehru who proposed that future of the state should be decided through a plebiscite under UN supervision. It was Indian state which proceeded with Kashmir dispute to the UN. Acceptance of Kashmir as a dispute is thus acknowledgement of Nehruian legacy of which Congress claims to be the custodian. Though India projected endorsement of accession by the State Constituent Assembly as ratification of accession by people of the state, UN disputed this assertion through several resolutions of its Security Council. India again agreed to settlement of J&K dispute through Shimla Agreement in 1972 and Lahore Declaration in 1998 during BJP rule. India continues to host UN observer’s mission in Srinagar and Delhi thus indicating Kashmir remains a disputed territory on the agenda of the UN. Indian government lead by Atal Behari Vajpayee entered into ceasefire with Hizbul Mujahideen (HM) the prime pro-freedom militant group of Kashmir thus giving implied recognition to insurgency. Recognition of Kashmir as dispute is thus part of BJP legacy as well.  

Another important demand raised by Hurriyat (G) and another faction pertains to de-militarisation of J&K state. It is obvious that the demand is not of relocation of troops nor for relieving them from assignments normally taken care of by civilian administration though both remain indispensable for a genuine withdrawal. It is demand of withdrawal of Indian forces from J & K state thus associated with call of its monitoring through some credible International agency. The first step in this direction demands pronouncement of facts and figures by Indian state as to number of its soldiers in J&K. A detailed list of military and paramilitary formations along with information about their assignments and area of land under their disposal is necessary to make withdrawal exercise assessable. Previous exercises of unilateral troop withdrawal proved to be bogus in absence of such information. Monitoring of this withdrawal by some credible agency e.g., United Nations Military Observers Group for India and Pakistan (UNMOGIP) already present in J&K will make this exercise authentic. The process of withdrawal has to be simultaneous in all the districts and preferably to be initiated from district head quarters.

The third demand raised is that Indian state must agree to   try its errant soldiers for war crimes and
its prime minister should assure that henceforth no excesses will be committed. The point involves investigation of mass graves, disappearances, custodial killings, use of rape and torture as weapons of war by the armed forces. It also includes investigation of other crimes particularly those perpetrated against children and women. Hurriyat has yet to clarify whether the investigation has to be through a domestic adjudicating forum or an international tribunal. War crimes have remained exclusive domain of international tribunals in Nuremberg, Tokyo, Bosnia, and Rwanda.  Revocation of Armed Forces Special Powers Act (AFSPA), Disturbed Areas Act (DAA) and Public Safety Act (PSA) constitutes another demand of separatists. These are emergency legislations meant to be used as adhoc measures to deal with law and order problems. A polity which survives on these for decades needs to take stock of its own legitimacy.  AFSPA is a central legislation over which Delhi has to take an initiative whereas Public Safety Act (PSA)   and Disturbed Areas Act (DAA) are state legislations revocable by the state.    State government can initiate action in this context on its own thus help in building up of pressure against New Delhi for a similar action.

An important demand of Hurriyat pertains to release of all political prisoners and withdrawal of cases pending against Kashmiri’s for the past 20 years. These include cases against the youth, politicians and former militants. The cases and prisoners   remain scattered within J&K and various states of India. The litigations demanded to be withdrawn, of course are the ones that are incidental to the political mobilization of past twenty years. These are not crimes per se but acts for which one is neither liable to extradition nor trial as an ordinary criminal. Unfortunately Indian state has always over looked this aspect of these litigations.  General amnesty has always been a pre-requisite for any peace process. Pandit Nehru set precedent of it by withdrawing Kashmir Conspiracy Case against Sheikh Abdullah and issuing him passport as a Kashmiri {not Indian} in 1964. Abdullah proceeded to Pakistan on this passport to negotiate with Field Marshal Ayub Khan. Abdullah demanded it for himself and got it. Geelani is demanding it for all, be they stone pelters, militants or politicians. Most of the cases remain pending within J&K and state government does not need approval from New Delhi to withdraw these. Pending cases have made lives of former militants miserable as they cannot pursue their normal life while contesting real or concocted court cases. Inability to secure employment and enjoy normal life makes them vulnerable to exploitation. They often become soft targets for corrupt officials and security agencies. They are always subjected to various uses and abuses on account of their vulnerability. We have innumerable instances of former militants getting targeted during normal law and order problems. While addressing this demand the plight of those Kashmiri youth should not be over looked who have been implicated in false cases across India. Fulfillment of this demand can’t be visualized without honorable release and rehabilitation of Kashmiris lodged in various Indian jails.

Kashmir remains tense. Any indifference towards these demands is fraught with risks of unanticipated consequences, according to Syed Ali Shah Geelani. In the background of this threat the situation can become irreversible if the powers that be take the demands in a casual manner. Illusions about Kashmiris reconciling with status quo remain   unrealistic to even   the state chief minister. This acknowledgement of the realities has to proceed beyond the state government. Indian state has to respond with positive measures. There can’t be any escape route from it if Manmohan Singh government is serious about peace in Kashmir. Do not be bad bargainers. Jinnah demanded 33 per cent seats of parliament. You refused and ended giving up 33% of undivided India to him.

The Solution

The five points mentioned above, however, remain confidence building measures not an ultimate solution. For ultimate solution Kashmiris need to be recognized as people who live within this planet. Being people they have an inalienable right to self determination under the very first common Article of the Human Rights Covenants (ICCPR, ICESCR). Being the ones living on this planet they remain entitled to be governed by the same norms which apply to resolutions of similar conflicts else where in the world. Kashmiris demand exercise of right of self determination on one more ground as well. Indian state has given a commitment to Kashmir and International community has endorsed it through resolutions of UN. Indispensability of self-determination for any peace has been beautifully portrayed by president Wilson of US as ‘No peace can last or ought to last which does not recognize and accept the principle that governments derive all their just powers from the consent of the governed and that no right anywhere exists to hand people about from sovereignty to sovereignty as if they were property’ President Wilson. L.C Chen. ‘Self Determination as a Human Right,’ in Riesman and Weston. (Ends Towards World Order and Human dignity 1976), 214 and the US and Self Determination, Perspectives on the Wilson Ian Conception, AJIL.

Response to Indian Apprehensions

The norms that governed the resolution of East Timor, Eritrea, and Montenegro in recent past remain relevant to Kashmir as well. Heterogeneity of population was not used as a pretext to deny the state of their choice to majorities of these states. 22 per cent dissenters to freedom of East Timor were obliged to accept the majority decision. Same was the case with 45 per cent dissenters to the independence of Montenegro.  Southern Sudan is also in process of getting resolved through a referendum. This being the globally accepted norm, for resolution of disputes pertaining to territories inhabited by people can’t be and should not be discarded in context of Kashmir. We don’t say that minorities living in various parts of Kashmir shouldn’t be allowed to exercise their choice but once a decision has been achieved on the basis of majority it has to be accepted by everyone. Minority can’t hold the majority as hostage. At the same time minorities deserve to be treated as equals in the dispensation that emerges out of majority decision with assurances related to their identity. Right to equality and identity is as sacrosanct right of the minorities as statehood of their choice is right of the majority. It is this perception of Kashmiris that makes them indifferent towards the apprehensions which are expressed relating to the situation of Indian minorities in case of secession of Kashmir from India. Muslims of India enjoy rights by virtue of being human beings and citizens of this vast country. The rights which they enjoy are not in lieu of hostage status of Kashmiris. Such a formulation is an insult to them and to the people of Kashmir. Secularism is part of preamble of your constitution and constitutes its basic structure. It is not a concession in exchange of subjugation of Kashmir.

 

We don’t digest the argument that borders have become irrelevant in the globalized world. Indian insistence on a solution involving no change of borders suffices to nullify it. Insistence on respect for irrelevant borders makes them very much relevant. Given the fact that India itself laid down the precedent of changing borders through its help in separation of Bangladesh from Pakistan, such argument looses all its weight.

We remain indifferent to allegations of out side support as well. We have emulated examples set by Indian nation in this respect. It is an established fact that Japanese supported Indian National Army you reciprocated by keeping your forces at the disposal of Bangladeshi secessionist movement. Despite the fact that right to receive and render support for freedom is not patented in your favour our movement at present remains exclusively indigenous.   

Scenario of a bloodbath too does not scare our youth. Two years ago, former foreign secretary of India Salman Haider, while responding to some of my comments observed that if China can have Olympics after Tiananmen Square massacre, India too can have Common Wealth games after a similar situation. If Yeltsin could be rewarded after devastating Grozny (capital of Chechnya) why can’t Indian state afford such events in Srinagar? At that juncture it was a fiction of his imagination. Today   it is looming large over Kashmir as a real scenario. New generations of Kashmir instead of getting haunted by death are chasing it on streets and lanes of the valley. When reminded of such scenarios including the ones that were orchestrated at Delhi in the aftermath of Indra Gandhi assassination their response remains nothing other than some slogans…Tum Goli maro Azaadi, Tum bhokay maro Azaadi , Tum pyaasay maro Azaadi , Tum khoon bahaawo Azaadi.  With passions for Azaadi running so high it is now up to Indian state to asses whether it is willing to proceed towards this scenario or respond to aspirations of Kashmir.

The view that secession of Kashmir will trigger a process of dismemberment of India is not well founded. If Pakistan could survive and compete with India after creation of Bangladesh why can’t India survive and prosper once relieved of Kashmir headache. Indian nationhood is not too fragile to be tied to association of Kashmir with it.

Your beneficiaries (Namak Khawr) in Kashmir will tell you that it is one more bubble (Hubaab) in the history of Kashmir resistance. It will die soon just give us some packages. You have cultivated so many of them who remain addicted to packages using every opportunity to grab them.   You have been giving these packages they couldn’t pacify the aspiration for Azaadi.

The situation may appear to have cooled down for some time but it will erupt again on slightest provocation like a dormant volcano with more lethality. Lull in resistance is guided by instinct of survival rather than reconciliation with the status quo as its beneficiaries may want you to believe. Kashmir has seen a transition from armed insurgency to a non violent mass movement. Whatever violence is seen in Kashmir at present it is perpetrated by instruments of the state. Sense of non achievement can push youth towards violence yet again. It does not auger well for any party.  Such a scenario can haunt as a reality after the departure of Americans from Afghanistan in 2011. The powers who are getting mauled and mutilated in Afghanistan and their so-called War on Terror cant be of much help in that eventuality. Given the fact that non state actors have gone beyond the control of Pakistani state now, any rapprochement with Pakistan too can’t be of any use unless you are ready to dispatch your foreign minister to Kandahar.

No doubt India remains stronger than it was in 1948, 1965 and 1990. Same remains true about its adversary as well. Through nuclearization of the sub-continent India has leveled its own superiority. You retaliated to insurgency of 1965 by attacking Haji Peer and Lahore. You could do no more than sending dossiers after Mumbai attacks. The options now remain limited to peaceful resolution of the issues or a protracted engagement in Kashmir. Fallouts of such an engagement can’t remain localized in a globalized world and era of information technology.   

I conclude my presentation with the prophecy of Mahatma Gandhi which he made in a letter to a great son of Kashmir, Pandit Prem Nath Bazaz, “Seeing that Kashmir is predominantly Mussalman it is bound one day to become a Mussalman State. A Hindu prince can therefore only rule by not ruling i.e., by allowing the Mussalmans to do as they like and by abdicating when they are manifestly going wrong” (Bazaz, Kashmir in crucible p.176)

The paper was recently presented in a seminar at India Habitat Centre, New Delhi and the author can be reached at showkat_hussain@rediffmail.com