Imagine a cricket match between India and Pakistan without umpires. No umpires at all. In such a match, the moment there is an appeal, both the captains are required to take a decision. And the captains disagree on everything. Impossible you may say. But in reality, such a scenario has been created between India and Pakistan upon signing of the Simla agreement, July 2, 1972. Under the agreement the Kashmir dispute is to be settled bilaterally (without an umpire). And thus the dispute goes on with both countries disagreeing on everything.
Jammu and Kashmir (J&K) along with Nepal, Bhutan and Sikkim were the Himalayan kingdoms under British suzerainty at the time of partition. Under the Act of independence the local rulers were granted the option of maintaining their independence or merging with either India or Pakistan subject to contiguity. J&K was contiguous to both, had a Hindu ruler and Muslim majority (77% Muslim, 23% Hindu-Sikh).
October, 1947 saw large number of Muslims from Jammu flee to Pakistan following attacks on them. Angered and perhaps waiting for an excuse, fearing that Maharaja may opt for India, Pakistan invaded. The Maharaja sought Indian assistance but India demanded merger as a pre- condition. Helpless, the Maharaja signed the Instrument of Accession on 26.10.1947. Thus an additional area of 222,236 accrued to India.
The maharaja acceded to India to protect the integrity of his State and as much was assured to him by Governor General who in a letter dated 27.10.1947 stated: “It is my government’s wish that as soon as law and order has been restored in Jammu & Kashmir and her soil cleared of the invaders, the question of the State accession should be settled by reference to the people.”
The dispute was taken to the Security Council by India. A resolution dated 13.8.1948 was passed and a cease fire arranged between India and Pakistan. As per the resolution, Pakistan was to first withdraw all its forces from within the territory of J&K following which India was to withdraw the bulk of its forces. A plebiscite was to be held thereafter. As Pakistan failed to withdraw its armed forces the resolution became ineffective and the stalemate continues.
Thus, the fact is that the purpose for which the Maharaja merged J&K with India is not served. Pakistan continues to illegally occupy about a third (PoK) and India further lost about a fifth (Aksai Chin) to China (COQ) in 1962. Thus India holds only about half of the original J&K. The current terrorist activity is confined only to the Kashmir Valley. The areas of Ladakh largely Buddhists and Jammu largely Hindu-Sikh are free of terror.
By the Simla agreement of 1972, it was agreed in clause (ii) that:
“(ii) That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organisation, assistance or encouragement of any acts detrimental to the maintenance of peace and harmonious relations.”
Clause (v) thereof states:
“(v) That they (India & Pakistan) shall always respect each others national unity, territorial integrity, political independence and sovereign equality”.
The interesting aspect is India has signed the Simla agreement and renounced the right to use the armed forces to regain PoK. And while we abide by the agreement, Pakistan has been clearly flouting it, as so frequently and forcefully stated by the Government. It is clear that terror in Kashmir is fueled and sustained by Pakistan in utter violation of the Simla agreement.
In signing the Instrument of Accession a duty was cast on India to uphold the integrity of the State of J&K. As can be seen, we have failed in our duty and the genesis of the Kashmir dispute lies in our failure to unite the whole of Kashmir within India. The Kashmiris feel and not unfairly, that India has betrayed J&K. The Kashmiris now seem to be saying that if you cannot get an united Kashmir within India, we might as well have it outside India.
The fact remains that since independence Indian armed forces have not been used so much against foreign aggressors but against our own people, be it the Kashmiris, the Khalistanis, the Nagas, the Mizos, the Bodos or the Naxalites. Why should it be so? Why should we take shelter behind the Simla agreement which Pakistan so blatantly flouts? Why should not our armed forces be used to recover PoK which is legally a part of India but under Pakistan’s illegal occupation? Successive governments have been telling us that we have won wars against Pakistan, if that be so, how come we are not occupying an inch of Pakistani territory but Pakistan is holding the entire PoK?
It is the right of the Kashmiri people to have united homeland. We have failed these last seven decades in recovering the part of Kashmir, stolen by Pakistan. If the whole of J&K was united then there would be no scope for the Kashmiris in India to fight. I say so because for the first nearly five decades after the accession of J&K to India there was no terrorist activity, which has arisen only in the last two decades. It is for the Govt. of India to consider this aspect and unite the whole of J&K within India, instead of simply blaming the Kashmiris for the present violent situation. The cricket match without an umpire is most certainly, not feasible.
(Radharao F.Gracias is a senior Trial Court Advocate, a former Independent MLA, a political activist).
