President Zardari’s address at U.N. General Assembly reiterating his priority for resumption of composite dialogue with India and seeking a peaceful resolution of outstanding issues, including Kashmir has again opened a window through which possibly a permanently workable solution to J & K imbroglio can be worked out between India and Pakistan.
I am more than optimistic now, notwithstanding the brooding presence of 26/11 in all communications between governments of India and Pakistan because of the recently enacted 2009 Gilgit-Baltistan package announced by Pakistan government. It needs to be emphasised that in point of fact since April 28, 1949 Pakistan has had administrative control over this region, and it was governed through Pakistan Presidential ordinances.
This admission that a good part of old J & K is under occupation of Pakistan and Gilgit area is now to be chaired directly under Pakistan Prime Minister’s council coupled with Pakistan having ceded hundreds of miles area in Aks Chin permanently to China is a clear admission by Pakistan that all talk of part of J & K on its own side of LoC was independent State was nothing but a concerted move to malign India as if India was forcibly occupying the whole of J & K – it deceived no one but quite a few years back that was the understanding of quite a number of international community, facilitated no doubt by the reluctance by our foreign office for years not to highlight it at international fora.
Much less were they aware that Gilgit-Baltistan part of erstwhile J & K was directly under Pakistan government administration. But such was the unexplained attitude of our foreign office that they preferred to take all this blame on the misplaced assumption that this will strengthen the case of India to be able to retain whole of erstwhile J & K.
It is only later that gradually and mostly because of the representatives from Gilgit-Baltistan area that it became open knowledge that Pakistan which in public expressed so much support for Independent J & K had put under its tutelage area without even the pretence of formal democracy and self rule. Such was the disdain of Pakistan for the sensitivity of J & K people that it has permanently ceded thousands of sq miles to China in sector, Aks Chin which goes against the proclaimed desire to maintain the integrity of whole of J & K as one unit. In a practical sense these acts obviously were (though not expressed openly) a silent recognition by Pakistan that it would be agreeable to settle the J & K question on the basis of existing factual boundaries with LOC being made a permanently soft border and with more friendly ties of trade and travel between two sides of LoC.
Much has happened since 26/11 which has put further pressure on Pakistan accentuated by USA debacle in Afghanistan to genuinely take some effective steps against terrorists, Talibans – army involvement in Swat province, Pakistan’s quiet acceptance of Taliban leader Masood being killed by USA drone (but no doubt with complicity from Pakistan Govt.) has opened a route through which mutually acceptable solution to J & K could be found between India and Pakistan.
Some people in India have justifiably raised their criticism at this sham of democratic set up for Gilgit-Baltistan. Government of India have obviously taken the usual official line to protest at Pakistan seeking to incorporate Gilgit-Baltistan region, on the obviously technically correct argument that as whole of J & K (which included Gilgit-Baltistan Region) acceded to India in 1947, the action of Pakistan is illegal.
Speaking purely in legalese language, this official position is incontestable. As a matter Mr. Alstair Lamb, the internationally known Jurist, who had been briefed by Pakistan to opine on accession by Maharaja to India has said that the accession is legal. He has gone further to say that the announcement of Pandit Nehru, that there will be plebiscite subject to conditions approved by U.N. General Assembly was only obiter and has no legal sanction, because India Independence Act only empowered the Ruler of State to decide on the question of accession and the Maharaja having acceded unconditionally, the validity of accession cannot be called in question by invoking subsequent statement of Pt. Nehru.
No, I am not so cut off from practical realism as to advocate India claim over the whole of J & K because of the validity of instrument of accession. Both in India and Pakistan we have to realise and accept practical realities and acceptable formula. For India to lay a claim to whole of Kashmir is as unrealistic as is for Pakistan to insist on a plebiscite – which can only be voting for India or Pakistan.
The Hurriyat and other groups in J & K should also realize that the question of Independent J & K, outside India and Pakistan is a non-starter.
Is it not clear to even a novice in the political domain that no government in Pakistan or India can agree to give up the territory of J & K which at present falls under its respective jurisdiction, and no government either in Pakistan or India can survive if it acts differently. That is the ground reality, which constraints not only the governments but any honest appraisal of the matter.
But this does not mean that India can underplay the sentiments and aspirations of the people of J & K and especially of the valley which has been in a state of turmoil and has raised many uncomfortable questions of violation of Human Rights in the state. Consequently, it is incumbent for all political parties in India to commit before the public their agreement that only subjects such as defence, foreign affairs, currency, and communication as were ceded by the Instrument of Accession will be Central subjects. All other subjects will be within the jurisdiction of the State of J & K. Article 370 will continue and therefore the Centre will have no jurisdiction over any other subject unless the Jammu and Kashmir Assembly so permits by a resolution.
The Central Government should withdraw all Central legislations which the Jammu and Kashmir Assembly had authorised it earlier. (In practical terms this would not create a void because these are normal legislations like the Municipal Act and the Industrial Act which the state government itself will have to provide for proper governance).This exclusive autonomous power to legislate has already been given to certain areas in Assam and Meghalaya decades ago by a constitutional amendment. Can one hope for some such silver lining in Indo-Pak relations, clouded as they are at present by 26/11 syndrome.
[The writer is former Chief Justice of High Court of Delhi and former Member, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities]