India should henceforth refuse to engage in any dialogue on Kashmir except one in which the other side accepts the whole of Kashmir as an integral and inalienable part of India.
Recently, some columnists have advocated that India should let go of Kashmir. While not wanting to wear patriotism on my sleeve, I would say that the silent suffering majority of India wants none of this. The ‘Kashmir issue,’ in fact, can no more be solved by dialogue either with the Pakistanis or the Hurriyat, leave alone the constitutional impossibility of allowing it to secede. This is because we do not know what kind of Pakistan there will be in a few years from now.
The Pakistan army today, according to all informed sources available to me, has a majority of captains and colonels who owe allegiance to the Taliban and Islamist fundamentalism. In another five years, these middle ranks will reach, through normal promotions, the corps commander level. We know that the government in Pakistan has always been controlled by the seven corps commanders of the army. Therefore a Taliban government in Pakistan five years hence seems a highly probable outcome. Jihad, that is, war against India will be the logical consequence of that outcome.
Since the Hurriyat in Kashmir is an organisation that cannot go against Pakistan, India has about five years to prepare for a decisive and defining struggle with Pakistan. We must prepare to win it to avoid the balkanisation of India. We therefore should refute those Indian columnists, academics, and politicians who crave or preen themselves on being popular in Pakistan, by sounding reasonable and secular on the issue of Kashmir.Never part with it
Kashmir, in fact, is now our defining identity. It is a touchstone for our resolve to preserve our national integrity. The population of that State may be majority Muslim but the land and its history is predominantly Hindu. For our commitment to the survival of the ancient civilisation of India and the composite culture that secularists talk of, we have not only to win that coming inevitable war but also resolve never to part with Kashmir.
I will not blame the jihadis for the coming war. They are, after all, programmed that way by their understanding of Islamist theology. I will blame ourselves for not understanding their understanding of the fundamentals of Islam. It is foolish therefore in the face of this reality to expound the banal sentiment that “all Muslims are not terrorists or fanatics.” Of course that proposition is true.
However, the Islam of the cutting edge of Muslim fundamentalism by leaders such as Osama Bin Laden is in Sira and Hadith, and now increasingly followed in Pakistan. It calls on the faithful to wage war against the infidels (who cannot strike back effectively) and crush them. This is why the Kashmiri Hindu Pandits were driven out in the first place.
The struggle for Kashmir by the jihadis is thus not just for independence. By their own declaration, they want a Darul Islam there, with the state becoming a part of the Caliphate. We cannot allow, in our national security interests, such a state to emerge on our frontiers. Hence the question of parting with Kashmir cannot arise. We have to go all out to retain Kashmir as part of India wherein Hindus and Muslims can live in peace and harmony.
Pakistanis often cite the United Nations resolutions on Kashmir to argue for a plebiscite. This obfuscates the fact of accession of the State to India. The legality of the Instrument of Accession signed in favour of India by the then Maharaja of J&K, Hari Singh, on October 26, 1947 has to prevail anyway. To disregard it will create a plethora of legal issues, including what will become the status of the Maharaja if we abrogate this Instrument and re-open the question of Partition itself. In that case, for example, will Dr. Karan Singh, Maharaja Hari Singh’s son, have a claim to be regarded again as an independent and sovereign King of J&K?
On the Junagadh issue, Pakistan held the Instrument once signed to be “final, irrevocable, and not requiring the wishes of the people to be ascertained [emphasis added].” That is the correct legal position. But the Junagadh Nawab, after signing the Instrument in favour of Pakistan, invaded the neighbouring princely states, states that had acceded to India. This violated the terms of the Indian Independence Act (1947) enacted by the British Parliament. So when the Indian Army was moved by Sardar Vallabhbhai Patel to defend these areas, the Nawab, fearful of the consequences, ran away to Pakistan. His subjects, mostly Hindu and abandoned, welcomed the Indian army to Junagadh.
Furthermore, on what legal basis can we de novo seek to ascertain the wishes of the people of J&K as Pakistan asks, when the Indian Independence Act makes no provision for this? After all, it was this same Act that created a legal entity called Pakistan, carved out from united India. India under the Act was a settled and continuing entity out which the British Parliament made a new entity called Pakistan. Never in previous history was there was a country called Pakistan. The idea itself was conceptualised as recently as 1940 and legalised only in 1947.
By what mechanism then can Pakistan seek to amend or even disregard the Act, without unwittingly undermining the legal status of Pakistan itself? That is, if the Instrument of Accession is called into question, will not Partition itself be subject to challenge as without legal basis on the same consideration?
I raise this question also because of the constitutional futility of pursuing the issue of the secession of Kashmir. In the case of Beruberi in Eastern India, the transfer of that area to Bangladesh, although agreed to, has been enmeshed in prolonged litigation in the Indian Supreme Court. This is because Article 1 of the Indian Constitution bars the de-merger of any Indian territory after 1950.
Another argument advanced by these columnists is that if Kashmiri Muslims do not want live in India, it is against human rights to force them to do so. That argument is contradicted by the Bangladesh example. The area of that country was first created by Partition. In 1971, Indian army jawans created Bangladesh out of Pakistan in circumstances well known to all. But despite that, millions of Bengali Muslims have come into India as illegal immigrants and are quite happy to be working with Hindus in India. But Partition was agreed to by Hindus for those Muslims whom Jinnah said could not bear to live under alleged Hindu hegemony. Now, after getting their territory, a large number of Bangladeshis Muslims are voting with their feet to proclaim that they are happy to live in India with Hindus.
Similarly, after getting Kashmir as an independent country, Kashmiri Muslims may, like their Bangladesh counterparts, come to live in India anyway! What then is the point of severing Kashmir from India as these columnists suggest?
India should henceforth refuse to engage in any dialogue on Kashmir except one in which the other side accepts the whole of Kashmir as an integral and inalienable part of India. The people of Kashmir should be left in no doubt in their mind where the overwhelming number of citizens of India stand on the future of the State. Therefore, those who, at this crucial juncture of our history, advocate any dilution of this stand are leading the people of Kashmir to more misery. They are encouraging the forces of jihad to keep at their nefarious activities by raising hopes that, with rising costs, India will capitulate. Any democratically elected Indian government knows that it can never capitulate on issues of national integrity and risk an upheaval. The Ramar Setu and Amarnath issues have proved that beyond doubt. Advocating letting go of Kashmir therefore is a dangerous exercise in futility.
(The writer is a former Union Law Minister.)