Published On: Mon, Jun 23rd, 2014

Framework of Indian Constitution

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By Dr. Syed Nazir Gilani –

Civilisations (mankind) at all levels of history have ended their disputes through the use of the instrument of dialogue. This method of settling disputes has not been overridden by any other mechanism so far. India and Pakistan could not expect to find an alternative to this in settling their list of disputes. The first and foremost principle in this regard would be that each stops to invoke the enemy image of the other and accepts the Vajpayee doctrine that neighbours can’t be changed. The window of opportunity should be never missed.

In this regard the political and military opinion on the India side has to conclude without doubt that Pakistan can’t win a war against India and there should be no doubt that India can’t defeat Pakistan either. The nuclear capability of both countries has ruled out any future wars between the two countries. Options may be open but there are fatal consequences, which no sensible leadership is likely to endure. Incidentally the two armies have the same British origin of training and discipline. Over the years and as a natural consequence the two armies have different public images.

Pakistan army is engaged in an offensive against militants in the tribal region of North Waziristan. During the ‘Zarb-e-Azb’ operation all ranks of Pakistan Army will donate one day pay for IDPs of North Waziristan Agency and will donate ration for their displaced tribal brethren of North Waziristan Agency to meet their immediate needs for next thirty days. Armies around the world do not have the killing instinct any more. They are engaged in rehabilitating the writ of the State necessary to secure peace and security in the country and in the neighbourhood. Peace and security in any part of Pakistan has its influence and impact in the neighbouring countries, India in particular.

This new mass migration from Waziristan will be a major burden on the country’s resources. Pakistan is already struggling to cope with almost two million people displaced during the military operations against militants in Swat in 2009. Government of Pakistan and in particular the institution of Pakistan army have continued to wrestle with previous IDPs from the devastating floods of 2010 that swept across one-fifth of the country and affected 20 million people. The military man in Waziristan is not only there to flush the militants but has taken upon a humanitarian operation to donate one day salary and to provide food for thirty days to these displaced people. Armies in India and Pakistan can’t act differently to other armies around the world contributing to peace and development.

The two armies remain engaged along the cease fire line on the borders of Jammu and Kashmir. The nature of engagement remains different today as one would have known from 1947 to 1990. The more the two armies disengage from a long perpetuated mistrust and start respecting their national and international duties and obligations, the better it would be for the three people including the people of Kashmir.

The two political leaderships in India and Pakistan have a higher burden of responsibility to deliver in the interests of their people and in particular on the dispute of Jammu and Kashmir. The present Indian Government has Vajpayee doctrine as a road map. The Defence Minister Arun Jaitley at his press conference on 15 June 2014 at SKICC at the end of his two-day visit to the state is reported to have said that GOI is willing to work with anyone who wants to function under the framework of Indian Constitution. He added that government would talk with “anyone who respects the constitution and India’s sovereignty”. On talks with Pakistan the minister said that “Talks and aggression can’t go together. For the situation to normalise, it is important for the ceasefire violations to stop.”

Arun Jaitley has addressed the Kashmiri leadership and the Government of Pakistan at the same time. However, the manner of address is unhelpful and does not address the merits of Kashmir question and the question of good neighbourly relations with Pakistan. There could hardly be a person in Kashmir or in Pakistan, who would not respect the constitution and India’s sovereignty. People of Kashmir do not have an issue with respect for the constitution and sovereignty of India. When a Kashmiri would meet an Indian leader or member in the Government of India, the latter would be de facto and de jure representing the Constitution and Sovereignty of India. Unless they (Indian side) are vested with these two strengths there would be no point for a Kashmiri leader to engage in any kind of dialogue. The best that a Kashmiri has to do is to behave as a sovereign in his engagement in the dialogue. He should be wise enough to have his narrative based on the merits of provisional agreement with India and its pending adjudication at the UN.

Vajpayee as a statesman clothed this requirement of respect for Indian Constitution in a less irritating language and introduced the Constitution of “Insaniyat”. It did not mean turning his back on the Constitution of India. On the contrary every Constitution embodies the basic ingredients of “Insaniyat”. It is a mature manner to advance the mechanism of dialogue and appear less arrogant or intimidating.

People of Kashmir have a genuine concern that President Pranab Mukherjee in his address to the joint session of parliament on June 9 (first after the general elections), did no mention of Kashmir as an issue that needed attention. The only priority Modi Government has set is about the return of Kashmiri Pandits who have left Kashmir in early 1990 after the armed revolt broke out in Kashmir. The manner in which the issue of Kashmiri Pandits is being agitated and handled does not help the Pandits either. Kashmiri Muslims would like to see the Indian Government conducting itself without discrimination and in equity. There are five generations of Muslim refugees as well living in AJK and Pakistan. Government of India can’t renege on her responsibilities towards them under the terms of provisional accession (subject to adjudication of UN) and responsibilities accepted under UN Resolutions and the mechanism provided for the resolution of the right to self-determination under UNCIP Resolutions.

Arun Jaitley could have left a good taste in the air if he had been properly advised that it was only yesterday that the Muslims of Kashmir have lost a generation and have suffered the unprecedented violation of human rights never witnessed in 144 years from 1846-1990. The Indian soldier who remains conditionally in Kashmir to protect ‘life’ has a case to answer for the loss of life. Politicians of India fail to understand that Kashmir has an internal and an external dimension. India is bound to remain accountable for its bilateral agreement (provisional) with the people of Kashmir and for its assurances given to the world and in particular the people of Jammu and Kashmir at the UN Security Council. It has many issues including the issue of Kashmir with the Government Pakistan as well. Pakistan has an interest in its own share of embedded interests to reconcile with India and at the same time has historical and international share of interest in Kashmiris right to self-determination and the prosecution of UN mechanism on Kashmir.

A tension along the cease fire line does not mean that it would blunt the merits of the broad spread of Indian accountability towards the people of Jammu and Kashmir. It does not also mean that relations between India and Pakistan would come to a grinding halt. Government of India has to prepare itself for a dialogue with the people of Jammu and Kashmir and it is not clear how it would be possible at this point when the State is distributed under three administrations. The dialogue would not be conducted under any Constitution but in accordance with the 4 particularised duties that Government of India has taken upon to perform in Kashmir and the Indian submissions made at the UN in regard to its temporary entry into the State and future of the State under the auspices of the UN.

Government of India has accepted to create conductive environment in Jammu and Kashmir for the expression of their will. It would involve a dialogue between the people of Jammu and Kashmir and the Government of Pakistan as well. It would also involve a continuous dialogue between the Government of India and the Government of Pakistan. The dialogue could then lead to an inevitable extended dialogue between the people of Jammu and Kashmir and the two Governments of India and Pakistan.

During this dialogue people of Jammu and Kashmir could assume to be sovereign or semi-sovereign in accordance with the instrument of accession with India (provisional), Stand Still Agreement with Pakistan and on the principle of ‘equality’ and ‘self-determination’ as provided in the UN Resolutions on Kashmir. It is time to keep wide open the window of opportunity for the resolutions of the question of self-determination of the people of Kashmir (inclusive – J&K, AJK, GB) and for constructing good neighbourly relations between India and Pakistan. We should not have an issue with the Constitution of India nor have we a reason to challenge the Sovereignty of India. Kashmiris shall have to assume to be sovereign or semi-sovereign as the situation demands in any future dialogue.

Dr. Syed Nazir Gilani

Secretary General – JKCHR

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