Published On: Thu, Apr 13th, 2006

Kashmir: Dispute or a Tragedy

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Rights Movement of the people of Jammu and Kashmir is 129 year old. The sovereign claims of India and Pakistan too have graduated and are 59 year old.

Kashmir is not a dispute. The two sovereign claims of India and Pakistan have made it a dispute. It embeds the Right of Self Determination of a people distributed against their will and held apart unlawfully by India and Pakistan in three administrations, subjected to a gruesome administrative control of 5 governments and restraints of 5 constitutions (one being an agreement of suspect vires).

Our leaders, scholars and other schools of discipline, genuine and supplanted have never felt the need to differentiate between the three important variables embedded in the self-determination of the people of Jammu and Kashmir:

(a)    a title of the Kashmiri people to self-determination
(b)    and the two respective claims of India and Pakistan

Kashmiris right to self-determination presupposes a need to conserve life. It presupposes a need to empower the civil society in all the three administrations of Kashmir. Self-determination rests on the jurisprudence of living adult numericals. A case for self determination needs a habitat which is free from (a) violence and (b) supplanted, private, commercialised, undemocratic, non-transparent and unaccountable political culture

Our short-listed leaders and their  associates in pride and perk feign to have a peoples cause dear to their heart. In fact they act on behalf of India and Pakistan and continue to make a conscious error of judgement. They hold Peace and Security hostage to the question of Self-Determination or vice versa. It is a common knowledge that as member nations of UN, Peace and Security remain a commanding obligation on India and Pakistan.

It is also a common knowledge that a Right of Self Determination of the people of Jammu and Kashmir remains an associate principle of UN Charter. Unfortunately the Indian and Pakistani investment is so heavy that  we are not prepared to revisit the full circle of wisdom and understand the jurisprudence of these two separate commanding obligations on India and Pakistan and the international community.

Therefore, we have not even settled the primary issue – whether to position ourselves in the best interests of the people of Kashmir or to act to advantage the embedded sovereign reflexes of India and Pakistan.

Nobody is prepared to say that from 1877 to 1990 our Rights Movement cost us 23-30 lives in 113 years. While as we have lost a generation in just 16 years from 1990 to 2006. Kashmiri leadership which gave us a direction and constitutional discipline remains fully and criminally liable for death, destruction and trauma suffered in the last 16 years.

As a sovereign and one people we negotiated a Stand Still Agreement with the Government of Pakistan on 15 August 1947. It failed. As a sovereign and one people we negotiated another Bilateral Agreement with the Government of India on 26 October 1947 and it subsists.

Under this bilateral agreement the Government of India has undertaken to protect ‘life’, ‘property’ and ‘dignity’ of the people of Jammu and Kashmir. This obligation extends to Azad Kashmir and to Northern Areas as well.

At a time when India has failed to honour it obligations under its bilateral agreement of 26 October 1947 and Pakistan has failed to honour it “Trust Obligations” under UNCIP resolutions the ceiling of responsibility of every man and woman to interfere in every activity that is done in their name in any administration of Jammu and Kashmir or in India and Pakistan is raised to the highest. It is high time that we position ourselves in the best interests of the People and discharge our ‘common duty to interfere’ in all the matters that are conducted in our name at various levels in the three administrations of Jammu and Kashmir, India and Pakistan or abroad.

Our first and foremost interest is to question India and Pakistan in regards to their shared responsibility in causing the death of a generation and in causing an unprecedented violation of human rights ever witnessed during the 129 year old history of our Rights Movement. It is time to remind them that ‘peace and security’ are their obligations as member nations of UN. It is also our duty to look into their direct or associate criminal liability for death, destruction and trauma in Kashmir.

It is admitted that a solution on the basis of ‘one size fits all’ is not possible. We have to reconcile a Kashmiri Rights Movement with the two rival claims of India and Pakistan. How we position our wisdom we leave it to our duty to fairness.

While we reconcile the three interests, that is, Indian, Pakistani and Kashmiri, it is important that we examine the inequities and the injustices faced by the people of Kashmir.

Future belongs to Peace. We support peace and peaceful resolution of disputes. We welcome a forward movement on peace and reconciliation between India and Pakistan. But we cannot sit put to be ‘short listed’ and ‘negotiated’. We have a role in regards to our ‘life’, ‘property’ and ‘dignity’ due to us today and towards one that we wish to leave for our many tomorrows?

This is a moot question. A dialogue on Kashmir has its discipline and jurisprudence. It is not a free-style with no- holds-barred. India has to follow a discipline under the bilateral agreement of October 1947 and other international commitments, Pakistan has to follow a constitutional discipline under article 257 and trust obligations under UNCIP Resolutions. Post 1990 political schools in Kashmir (APHC and others) have set a political discipline for themselves and they have to follow that.

Common man and woman and the various schools of opinion in Jammu and Kashmir in general and the Valley in particular have been muted and driven away from a rightful concern and contribution that is necessary for an expressed, transparent, democratic and accountable political culture. Respect for life on the streets of Kashmir and security in their homes has lost its meaning.

We have to consider and audit the benefits of the Indian promise that it would protect ‘life’, ‘property’ and ‘dignity’ of the people of Kashmir and the Pakistan’s claim that it offers ‘political’, ‘diplomatic’ and ‘moral’ support to the people and politics of Kashmir. Indian Government has failed to live upto its stipulation of October 1947 Bilateral Agreement with the Government of Kashmir to protect ‘life’, ‘property’ and ‘honour’ of the people of Jammu and Kashmir. It has failed to discharge its obligations under UNCIP resolutions as a member nation of UN.

Pakistan has continued to claim that it is offering ‘political’ ‘diplomatic’ and ‘moral’ support to the Rights Movement of the people in Jammu and Kashmir. It entails that the Rights Movement in Kashmir should have been positioned in the best interests of the people, should be more mature in judgement and there should have been no room for any loss of life.

Under the Instrument of Accession (disputed by the people) India accrued an obligation to protect ‘life’, ‘property’ and ‘honour’ of the people of Jammu and Kashmir. This obligation extended to all the people living under the three administrations on either side of the Line Of Control.

The loss of a generation in Kashmir, the ailing civil society, debilitated at all levels, suspecting, distrusting and unsure of its future, raises many questions in respect of the substantive truth of Pakistan’s ‘political’ ‘diplomatic’ and ‘moral’ support. The practice to propose and dispose political leaders and now the rush to arm and disarm militant component of Rights Movement raise many other questions in regards to Pakistan’s claims and embedded interests in Kashmiri Rights Movement.

Government of Pakistan which is a party to the dispute and advocates the case of Self Determination by providing political, diplomatic and moral support has also accrued a criminal liability by failing to conserve life in Kashmir. Support for self determination presupposes an understanding of the value of number in the process of self determination.

Kashmir is tragically hit by a Tsunami of misunderstood jurisprudence of 129 years old Rights Movement, proxy politics, proxy war and mismanaged aspirations of the people. Life in Kashmir is hostage to a single agenda item of politics and life with a peaceful environment and life with all the embedded variables that make it qualitative has been neglected.

Since APHC June 2005 trip to Pakistan they seem to have changed their horses mid stream and are supporting a new proposal of self-rule, without reference to a free and fair debate by people, further aggravates their criminal liability. They failed to exercise their mature judgement when Indian Prime Minister Narasimha Rao had offered sky as the limit in this regard in 1996. In 2006 Kashmiri leaders are desperate to meet the Indian PM where meeting room’s ceiling is the limit.

India withheld its institutional fairness and experimented a proxy politics in Jammu and Kashmir in the last 57 years. It failed to reach to the common man and woman and erred to manage the situation through undemocratic and unpopular means.

There is an awakening in the Indian civil society and in the Indian administration to correct its mistakes.  Unfortunately Government of Pakistan has started what India is preparing to give up in Kashmir. The short listing of Kashmiri politicians by Pakistan is a new kind of ‘Proxy Politics’ in the 21st century.

Pakistan has erred to use two different mechanisms of control in the two administrations of Kashmir. Although there is a semblance of an electoral process in Azad Kashmir – yet there has never been a free transfer of an expressed political opinion. There are constitutional restraints on the expressed politics and on the freedom of expression in Azad Kashmir. Pakistan too has frustrated the UNCIP package to take shape in Azad Kashmir.

The Government of India is culpable for failing to honour the pledge that it will protect ‘life’, ‘property’ and ‘honour’ of the people of Jammu and Kashmir during the currency of the provisional accession.

The Government of Pakistan is culpable because it erred to fine tune the Muslim sentiment to suit its domestic needs and meet its water requirements. It restrained the Rights Movement from earning a rightful universal support.

We appreciate the support of the civil societies of India and Pakistan. It is time for Pakistan that it  raves courage and does a soul searching around its ‘moral’, ‘political’ and diplomatic support. It may have succeeded to manage India and raised the ceiling of a bargain to its advantage but at what price? Kashmir is now a grave yard.  We are left with an ailing, mistrusting and a failed civil society. The supplanted political pyramid has crumbled. Now it is free for all.

We have to encourage every man and woman to consider their right to intervene and interfere in all matters that affect their life. We have to continue to advocate that the circle of wisdom necessary for peace between India and Pakistan remains incomplete without addressing the grievances of the people of Kashmir and without resolving the case of their Rights Movement.

We  urge upon India and Pakistan to end their proxy politics and proxy war in Kashmir and allow all the people living under the three administrations to have three popularly elected legislatures and governments with a full access to human rights and fundamental freedoms. Let the people of Kashmir negotiate for themselves and not be negotiated by India and Pakistan.

We owe something to others and it entails that we have an ability to handle what we owe to others. We need to ensure that others receive their fair share. Nothing is more common, indeed, than to think of an ethical attitude as one that presupposes the existence of other’s rights.

There is an urgent need that we make efforts to encourage an expressed culture of politics which is conducive for taking part in the affairs of civil society and that we recognise an urgent need to strengthen the role of civil society institutions as a prelude to advocate the full case of self-determination in Jammu and Kashmir.
We have a common duty to interfere in the best interests of the people of Jammu and Kashmir. We should not sit back and wait to be short listed and negotiated by India and Pakistan. We have to take a pro active part and interfere in whatever is said or done in our name. We shall be acting unfairly if we fail to discharge our duty in respect of people living under three administrations on either side of LOC. The rights question of 2.5 million refugees living in Azad Kashmir and Pakistan should not escape our attention.

It is important to point out that State Subject Law of 20 April 1927  defines and distinguishes us as a legal personality. This law does not allow an Indian or a Pakistani to become a Kashmiri citizen while as a Kashmiri is free to become an Indian or a Pakistani citizen. Article 257 of the constitution of Pakistan stipulates the wisdom and the process of becoming a Pakistani citizen.

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