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Jammu and Kashmir: Framework for a 'Final Settlement'

The peace process between India and Pakistan has gathered a momentum of its own, and efforts to set it off-track as seen in the recent train blasts in Mumbai must be guarded against. However, there are also fears that the process could become an end in itself even as underlying suspicions and tensions remain to be addressed. A joint council, as this article proposes, comprising members of both countries, needs to urgently negotiate, debate and oversee matters of mutual contention so as to facilitate a permanent peaceful solution to the Kashmir issue.


Framework for a ‘Final Settlement’

The peace process between India and Pakistan has gathered a momentum of its own, and efforts to set it off-track as seen in the recent train blasts in Mumbai must be guarded against. However, there are also fears that the process could become an end in itself even as underlying suspicions and tensions remain to be addressed. A joint council, as this article proposes, comprising members of both countries, needs to urgently negotiate, debate and oversee matters of mutual contention so as to facilitate a permanent peaceful solution to the Kashmir issue.


or the first time in the history of Indo-Pak relations the Pakistan president Pervez Musharraf, has unambiguously declared his readiness to consider all options for a bilateral solution of Jammu and Kashmir (J and K), putting aside Pakistan’s earlier insistence on implementation of the UN resolutions. In his several pronouncements beginning with remarks of December 25, 2003 and the positive, though tentative, formulation delivered on October 25, 2004, followed again by his April 15, 2005 statement in Delhi, further clarifications and elaborations that followed on May 20 and June 14, 2005 and the interview to Karan Thapar on January 8 this year – Musharraf has shown his keenness to resolve the issue accommodating all Indian concerns and sensitivities – expressed in terms of no redrawing of borders, no division on the basis of religion, and no undermining of India’s sovereignty over the part of Jammu and Kashmir under its control. India can derive satisfaction from this apparent vindication of its stand regarding the final settlement of J and K, as provided for in the Shimla Agreement of 1972. It can also take credit for its bold initiative on a dialogue over Kashmir in 2001 that led to the Lahore summit and the agreement on composite dialogue in Islamabad in 2004. The moderate faction of the Hurriyat Conference having also partially modified its demand from a tripartite dialogue process to a triangular one, and its readiness to accommodate the implications of ethno-religious-regional diversity of the

people of Jammu and Kashmir, in its search for formulation of any preferred solution, also denotes a forward movement.

One dimension of dialogue on the Indian side relates to ascertaining the wishes of all ethnic, religious and regional segments of people of J and K, and involving all political as well as militant groups in the process, a successful beginning towards which has been made. In the wake of the composite dialogue process confidence building measures (CBMs) have seen the distinct freeing up of trans-border movement of peoples across the Indo-Pak border and across the Line of Control (LoC), which has given an added impetus to the dormant urge of people across LoC, to reunite.

The horrific and widely condemned bomb blasts in Mumbai of July 11 have aroused “urban” India’s anger to a level that has the potential to cause a setback to the Indo-Pak peace process. However, since an overwhelming majority of these same urban Indians have already expressed their preference via several opinion polls that the Kashmir issue can be settled by according autonomy/self-rule to the people, and the fact that governments of both countries remain committed to the irreversibility of the peace process, optimism assures that the process will survive, despite the present crisis. Political commentators in both countries have shown maturity in advising against any disruption of dialogue that will amount to surrendering to hardliners. It is just as well that the prime minister, Manmohan Singh, has clarified in his postG-8 summit statement that the dialogue process will continue as “destinies of the people of south Asia are interlinked”.

Economic and Political Weekly August 26, 2006

Let the policy-makers in the two countries continue suggesting more people-friendly CBMs, whose beneficiaries will be the common man and not just the privileged classes. In this regard, while there is a need to take bold initiatives on issues other than J and K like the still unresolved Siachen, Sir Creek and Baglihar disputes, and to take steps to foster trade and commerce and cultural exchanges, a long neglected area that needs attention is a review of all applicable laws and regulations that have a bearing on Indo-Pak relations. These were drafted and based on the assumption of continuing hostilities between the two countries, and cause not only avoidable human hardships, but have perpetuated hostile mindsets. Additionally, there is a need for signing bilateral (and in some cases multilateral, at the SAARC level) treaties governing the rights of citizens of one country, who happen to be in the other country, like members of divided families, spouses having different nationalities, persons of one country who stray into the territory of the other country, migrant workers, refugees, asylum seekers and naturalisation of displaced persons and humane treatment of prisoners (at all stages of arrest, detention and trial and treatment in jail, etc).

It may not be easy to rectify all at once the biases noted in the textbooks, especially those on history, used by students of the two countries, but an agreed mechanism should be put in place for correction of some gross distortions and misrepresentations; writers, editors, educators and media persons on both sides could facilitate this process.

Movement forward on the CBMs, however, should not create the impression that what Pakistan has till now considered the core issue, i e, J and K is being put on the back burner or that the CBMs are part of an Indian strategy to cajole Pakistan into accepting the status quo as a “final settlement”. While Pakistan will be well advised to treat normal good neighbourly Indo-Pak relations as an end in itself, independent of the J and K issue, India too should realise that now, i e, the present juncture, is the most propitious time to resolve the dispute under some win-win formula, which will yield immense peace dividends to both parties.

‘Fourth’ Option

However long and arduous the path to a peaceful accord on J and K is, the first requirement in this direction is the building up of a national political consensus in the two countries over the broad features of “the fourth option” that will take shape as an end product of the peace process. Political parties and civil society groups committed to peace and reconciliation need to take stock of the social-political developments in the two countries since 1971-72 to assess the reasons as to why the resolve expressed in the Shimla Agreement of 1972 to “put an end to the conflict and confrontation” and to “work for the promotion of a friendly and harmonious relationship” did not get translated into reality.

Initially, perhaps, the reason lay in the heightened sense of national hurt evinced in Pakistan for its dismemberment caused, as they saw it, by Indian design, added to which were the personal-political ambitions of the two leaders (Zulfiqar Ali Bhutto and Indira Gandhi), and challenges to their authority – from the military brass in Pakistan and from the Jayprakash Narayanled movement in India. However, the scenario in the two countries was transformed beyond recognition by the USSR’s military intervention in Afghanistan in 1978, and the consolidation of Hindutva forces since the period 1980-81 in India, and its appeasement by the Congress, grossly symbolised by opening the gates of the disputed Babri masjid structure in 1986 for puja by Hindu groups.

In this transformed scenario, the denial of the rights of the people of J and K to freely elect their representatives in the 1987 assembly elections, served as the proverbial last straw. The alienated people of the state were arguably more drawn to the idea of ‘azadi’ to which Pakistani governmental, quasi-governmental agencies and other groups extended support of every kind, with the motive of “hurting” India. The verdict of Indian human rights monitoring groups has also been near unanimous that the brutal handling of the J and K movement by the Indian paramilitary and armed forces fostered an even greater alienation and frustration among the people of the state with India. It is also very clear that the official and non-official Pakistani agencies supporting the militants did not ever consider the consequences of arming dozens of disparate uncoordinated Kashmiri outfits without any political authority exercising control and supervision; nor did the sections in Pakistan jehadising the movement in Kashmir, pay any heed to its consequences in the subcontinent – which in many senses led to and legitimised the indiscriminate and illegitimate use of force.

Soon after the formation of the United Front government in 1989, there was a joint statement on J and K issued in 1990 by then prime minister V P Singh, BJP leader A B Vajpayee, Congress leader Rajiv Gandhi and others which offered to the people of the state, “complete protection of their cultural and religious identity and full expression of their aspirations”. However, compulsions of the Indian political situation in 1994 made every political party acquiesce in the resolution declaring “Jammu and Kashmir as an integral part of India” which in turn sent the wrong message to the already alienated Kashmiris that for Indians it was asserting its own sovereignty over the state of J and K that was of paramount importance. Fortunately for the subcontinent, it was in 1994 that intellectuals and activists from both countries inspired by a subcontinental vision gave shape to a joint civil society movement for peace and democracy.

Paradoxically it was the rise of Hindu political nationalism, championed by the Bharatiya Janata Party as the leading partner in the National Democratic Alliance government in Delhi that led then prime minister A B Vajpayee to pledge in 2001 to seek “a lasting solution to the Kashmir problem”. He matched his words to his deeds – which led to “Shimla II” in Lahore. Vajpayee’s symbolic visit to Minar-e-Pakistan was meant to reassure Pakistanis that, irrespective of his mentors’ (in the RSS) vision of a Hindu ‘Akhand Bharat’, wielders of political power in India did recognise the right of Pakistan to exist as a sovereign nation.

Leaving aside the causes of Nawaz Shariff, then prime minister of Pakistan, the other “architect” of Lahore Summit II being forced into exile, that the Indo-Pak peace process was not simultaneously “exiled” is perhaps proof that the social dynamics in both countries was tilting towards peace in the region. It bespeaks the maturity and imaginativeness of Pervez Musharraf that he was quick to realise the futility of staking Pakistan’s claim to Kashmir as part of an “unfinished agenda of partition”. Irrespective of whether Pakistan’s urge for reconciliation is its independent decision or one that has been forced on it by circumstances beyond its control, including US policy post-September 11, 2001 attacks, it was statesmanship on the part of then prime minister Vajpayee to carry forward the process in the form of composite dialogue, which was in January 2004 in Islamabad. The process only gained momentum since

Economic and Political Weekly August 26, 2006 then, in spite of the change of government in Delhi in May 2004.

Summing up, the obvious lesson that we need to learn is that post-Afghanistan jehadisation of the Pakistan polity and society and the rise of Hindutva in India have been detrimental to peace and progress in the two countries. What is not so obvious in India – even to those who sincerely wish Pakistan well – is the feeling of hurt caused to Pakistan by its dismemberment in 1971, though by now Pakistan seems to have reconciled to it partly because of its growing awareness of its own role in the events of 1971 in what was then East Pakistan.


In India again even any remote association of J and K with the people’s right to self-determination serves as a red rag to a bull. India may be justified in claiming that the right of self-determination guaranteed to people under common article 1 of the International Covenants (1966) is not available to the people of J and K as after the state’s accession in October 1947 when it became an integral part of India. But wasn’t East Pakistan a more integral part of a sovereign Pakistan in 1970-71? The people in East Pakistan, though sharing a common religious identity with those in West Pakistan, had a distinct linguistic-cultural identity – which made them seek secession, as they felt they were not being treated fairly. India helped the Bangla-speaking people in the East Pakistan region attain independent nationhood, and thereby realising their right as a people to self-determination.

By similar logic Indian intellectual and political class must concede to people of J and K their right to self-determination. This right is independent of Pakistan’s claim over the state in terms of an “unfinished agenda of partition”. By openly conceding the right of the people, to selfdetermination, we will help bring about a sea change in the political passions of the region. Having conceded this right will arguably make the concerned people think twice before formulating how to exercise the right – it will make them freely think about the options including remaining a part of a federal India.

At the height of Scottish separatist nationalism in 1970s, the then British prime minister, instead of initiating a debate in constitutional-legal terms on the irrevocability of the union of Scotland over three centuries ago, simply stated that the people of Scotland could not be forced into the union. Alongside such gestures of statesmanship, measures for devolution of power were initiated and provided in a manner that Scottish people felt that they had a greater stake – economic and political – in remaining part of the union. On the contrary India has been doing everything since 1952 to make the Kashmiri Muslims feel as if they were a people under Indian occupation.

Seeking Consensus

Equipped with this perspective and insight, governments of the two countries need to convene an all-parties conference in their respective countries giving representation to all shades of opinion, seeking to evolve the required consensus after a series of structured meetings. The options that are drawn up must be publicised and openly discussed. Former prime minister Vajpayee owes it to the people of the subcontinent to take a leading part in developing the required consensus, by redeeming his pledge contained in his Musings from Kumarakum on January 1, 2001 wherein he sought a lasting solution to the Kashmir problem, and expressed his readiness to explore new avenues “leaving aside the beaten track of the past”. A newly resurgent India now needs to show political maturity in not undermining its own national interest, and rise above immediate petty political gains, for stable peace is a necessity in both countries. Even if such a process does not lead to a “final settlement” of J and K by all parties – it will assist the peace process by depriving the extremists in both countries from exercising an authority that appears much larger than their real strength, and which on occasions even exercises a veto over the majority opinion.

To help build such a consensus India and Pakistan need to set up a Joint Indo-Pak Peace Council (JIPPC), that should include independent academics and area experts known for commitment to peace. The council should give wide publicity to the socio-economic and developmental cost the past six decades of adversarial relations have caused, the setback caused by the Indo-Pak wars, and also provide projections of the region’s human development should friendly relations becoming a reality. The council needs to have links with centres for human development and policy research and NGOs working for peace and reconciliation in both countries.

Economic and Political Weekly August 26, 2006

Given this perspective of the peace process, a schedule for a multidimensional structured dialogue – between the two governments and between them and the people of J and K under their respective control, and also between the people of the two Kashmirs divided by the LoC needs to be spelt out, in the absence of which not only the energies will get wasted, but those with negative agendas can easily subvert the process.

The first step in this direction will be signing of a framework for final settlement of J and K by the two governments, outlining the following basic principles of the Indo-Pak Accord/Treaty: (i) recognition of de jure sovereignty/suzerainty of India and Pakistan over their existing areas of control, provided that there will be necessary rationalisation of the LoC in the light of agreed principles, (ii) governments of India and Pakistan will guarantee the quantum and quality of autonomy/selfrule/azadi to the people of J and K under their respective jurisdiction, for which the constitutions of the respective countries will be suitably amended and a law on the autonomy of the region will be so enacted, that will lie outside the amending power of the respective Parliament/assembly of India and Pakistan, (iii) the two autonomous J and K governments across the LoC will negotiate the necessary safeguards assuring the protection of the rights of eachethnic, religious and regional group; and (iv) governments of the Indian autonomous J and K and the Pakistani “Azad Kashmir” will negotiate terms for free passage of people and goods across the LoC – agreement over which will be arrived at under a joint Indo-Pak commission and will receive endorsement from their respective Parliament/assemblies. The implementation of this framework and accord will require framing of rules – including the election of representatives for negotiation, for which help may be taken from the Irish Accord.

For this to become a reality, saner sections of all political parties and civil society groups will have to play an active role in exposing not only the dangers of aggressive Hindu nationalism and jehadi Islamic expansionism, but also the equally narrow notions of inward-looking patriotism. People of the subcontinent, including the Kashmiri Muslims, will have to be reassured that emphasis on the secular character of the state and observance of human rights norms will not deprive the peoples and other sub-nationalities from fulfilling their distinct cultural aspirations, some of which may be inspired by their respective religious traditions.

There are several nebulous areas in this blueprint including the phases of demilitarisation of the region and joint inspection over control of armed militancy, which should be undertaken as early as possible. At some stage a “Truth and Reconciliation Commission” needs to be constituted for a process of restorative justice and healing, especially in J and K the Indian Parliament needs to reassure and make every effort to rectify and atone the excesses committed by the Indian forces. A similar apology will also be required from the different militant groups for the many violations of human rights committed by them, and proper rehabilitative measures needs to be restituted for the victims.



Economic and Political Weekly August 26, 2006

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