The recent face-off with Pakistan has been, to say the least, dramatic. Given the dastardly
Pulwama attack, New Delhi was perhaps left with no option but to take some action. And post-Pakistani retaliation, New Delhi successfully used its growing international clout to ensure the safe return of Wing Commander Abhinandan Varthaman.
The story did not, however, start with the Pulwama attack nor does it end with the return of the Wing Commander. Hard questions need to be asked about how we got here.
The erstwhile princely state of Jammu and Kashmir became an integral part of India with its accession on October 26, 1947. This accession was in terms of the law reflecting the political Partition agreement of June 3, 1947, which created both modern-day India and Pakistan.
The Problem With The Territorial Status Quo Policy
The territory of J&K included the Gilgit-Baltistan region as also the strip of territory we refer to as Pakistan-occupied Kashmir (PoK). Yet our political leaders decided from 1948 onwards to follow the unofficial and constitutionally impermissible policy of territorial status quo – that is, we keep what we have and Pakistan can keep what it has.
In other words, our leaders disowned Indian territory occupied by Pakistan and the Indian citizens residing there. The protests by New Delhi continued to be low key when China occupied about 20 percent of J&K – whether it be in 1957 when New Delhi discovered from Chinese maps that they had occupied the Aksai Chin region, in 1963 when Pakistan cheekily gifted another part of J&K territory to China and currently when both the countries are happily building the Economic Corridor through Indian territory.
Such has been the conviction in maintaining territorial status quo that our leaders even handed back to Pakistan at Tashkent in 1966 the Indian territory (of J&K) which our forces had heroically recovered in the 1965 war. And there have been instances when a person from the occupied territory of J&K has come to our side of the Line of Control (LoC) and our forces have handed over such person, who is constitutionally and legally a citizen of India, to Pakistan forces.
Indeed, the distinction between Pakistan territory and territory of J&K occupied by Pakistan is increasingly being blurred — not only in Pakistan but also in our political discourse — as reflected in our media, our movies. We forget that it was on targets in Indian territory that surgical strikes have been made by New Delhi in the past; it was in Indian territory that the Wing Commander had been captured – though controlled by Pakistan.
It is not even in the Indian public consciousness that a section of Indian citizens continues to remain under foreign rule till date – citizens who over the last 70 years have themselves lost their identity as being Indians.
We have reached here due to the utter ineptitude and incompetence of the eminent political leaders on the sub-continent, both before and post the 1947 Partition, and their naiveté regarding colonial politics which has since been confirmed by declassified British archives.
How could our leaders not have known that it was the British that scripted the Partition and also carved out to give Pakistan — post accession of J&K to India — the Gilgit-Baltistan region for their own geo-strategic and defence purposes in the Great Game with Soviet Russia.
How could our leaders have allowed the British to present the decision of Partition as an Indian decision so as to absolve the British of the butchery of two million people and displacement of another 14 million? How could our leaders have viewed the accession of J&K to India as being “provisional” and subject to reference to the people, when the law that created India itself did not contemplate either “provisional accession” or the future of a princely state being determined in that manner.
How could our leaders not have known that the reference to the UN was a British trap where the UNSC would call for immediate ceasefire without requiring Pakistan to first vacate the territory of J&K occupied by it, and that such territory would then be made available by Pakistan to the British for their Great Game – which it did.
How could our leaders not have known that the UNSC would explicitly bypass India’s charge of aggression and resolve that the future of J&K be decided by plebiscite under UN auspices – which again it did.
Did not our leaders, known for their farsightedness and acumen, appreciate that the consequence of the reference would be the internationalisation of the Kashmir issue and the conferral of the ‘disputed territory’ tag on J&K – and that too at the instance of New Delhi? We are the only country in history to have gone to the UN complaining of aggression in part of our country and returning with a promise to hold a plebiscite to determine whether such territory is even part of our country.
In this backdrop, New Delhi’s war on terror alone will not resolve the Kashmir issue even if every country in the world supports such war. The Kashmir issue does not pertain to merely the Valley — just 9 percent of the entire state — or cross border terrorism.
An Integral Part of India
For the Kashmir issue to be resolved, the international community and crucially, the people of J&K and Pakistan, must accept that J&K in its entirety is not ‘disputed territory’ but is an integral part of India. Diplomacy by itself will not succeed in convincing the international community to lean on Pakistan, and China, to vacate the territory of J&K they have occupied. Nor are generations in Pakistan and in parts of J&K, who have grown up in the midst of historical distortions and a culture of hate, prejudice and mistrust, likely to concur.
The Indian state, whether it be our politicians, bureaucrats, foreign service officers, defence forces, seems oblivious to the fact that there exists a robust international legal regime that can be invoked to remove the disputed territory tag on J&K and to confirm, as it were, India’s title to J&K in terms of the very law that created modern-day India and Pakistan.
That would, by itself, alter the national and international political discourse on the Kashmir issue, give New Delhi the moral authority to be in J&K and compel the application of existing international mechanisms to call upon Pakistan and China to vacate the aggression.
Merely because New Delhi learnt lessons in international politics the hard way before a political body like the UNSC in 1948 does not mean that it should not today take benefit of such international legal regime before a judicial body like the International Court of Justice (ICJ).
Surely the way forward for New Delhi is not only the war against terror but also recourse to such peaceful and potent measures to resolve the Kashmir issue in line with the Parliamentary resolution to recover the occupied territory of J&K.
Aman Hingorani is advocate, Supreme Court of India and author of Unravelling the Kashmir Knot.