Beyond Us And Them: Kashmir, A Case Against Third Party Mediation

History reminds and educates us of a nationalistic resistance to international intervention in domestic matters and the time has come for New Delhi to play an obedient student. The recent Trump gaffe should be a realisation of the new realities of international diplomacy for New Delhi. Mr. Trump breached several well-laid diplomatic protocols, including one against discussing privileged conversations with a leader, during a public conversation with another, wherein, the President of the United States displayed his willingness to mediate on the Kashmir issue, presuming the acquiescence of the Indian side in its absence. The furore in the Indian Parliament that followed was successful in quelling the controversy, but only to the extent that the Foreign Minister of India clarified the national policy on the issue by affirming, "I would like to categorically state that no such request has been made by the Prime Minister to the US President." This defence mounted by New Delhi is tolerable as far as the international platform is concerned but is devoid of all adequacy given the domestic realities with reference to its treatment of Kashmir. New Delhi's definition of the contours of its relationship with Kashmir will decide whether Kashmir is to be an 'exceptional state' or a 'state of exceptions'.

Us: An Argument in favour of Unilateralism

Since time immemorial, but more so in the modern world, the concept of political borders have been linked with the feeling of an inalienable identity. Étienne Balibar, renowned French philosopher and analyst, theorises the concept of a 'biopolitical border', which stands true for Kashmir. In the book, Border Politics, Balibar concurs with Giorgio Agamben's idea of "Borders are no longer at the border." For Kashmir, borders no longer remain the shore of politics but have become the space of the political itself. Borders are inherent to the feeling of inclusion and exclusion. The British understood this and therefore, partitioned us on religious lines.

The argument in favour of trifurcation of Jammu and Kashmir is not novel. Dr. Ambedkar, after tendering his resignation to the Nehru cabinet in 1951, said, "The right solution for the Kashmir issue was to partition [Jammu & Kashmir]." However, this trifurcation on religious lines will be heralded not as a masterstroke, but as a sign of New Delhi's weakness, an explicit acknowledgement of its incompetence and inability, in resolving the age-old Kashmir dilemma. New Delhi must not surrender to a culture of separate identity formation that has trickled down into the Kashmiri psyche. It must wholeheartedly fight this very sentiment of divisiveness.

India must not hunker down under the shadow of its divisive past, manufactured through a series of destructive and nefarious third party state interventions. If India is to refer to itself as a Super Power in the region, it must begin to act like it. In the seven decade long history of the Kashmir conflict, New Delhi has reacted to events and has failed to formulate a long term comprehensive strategy. India must overcome this hesitation unilaterally.

Kashmir, in contemporary times, is an entangled yet navigable cluster of paradoxes and diplomatic tale spins. These can be traced back to multiple compounding factors such as, the controversial circumstances surrounding its accession, the failed albeit rebus sic stantibus promise of the plebiscite and the erosion and dilution of Article 370 of the Indian Constitution, to name a few. The domestic and political aspects of the Kashmir conundrum outweigh the external factors in emphasising its root causes. However, the security dimension has taken the forefront in all discourse on the issue and the palpable concerns of the Kashmiri populous have been put in cold storage. New Delhi must actively recognise the fact that the Kashmir conundrum is as much about fighting a deep-seated sentiment of alienation and divisiveness as it is about security. There exist uncomfortable yet indispensable questions that must be posed to New Delhi. And the answers to them must be furnished unilaterally and unequivocally without fear of backlash.

Question 1: Of Democracy

India claims complete ownership over Kashmir, including the territory under Pakistan's control. However, 25 seats, reserved for those areas, in the Jammu and Kashmir Assembly have been left vacant since the 1950s. Why is it that no Indian Government has ever taken steps towards nominating or facilitating the participation of Indian citizens living under Pakistani occupancy, from these 25 seats? Kashmir forms a part of the largest democracy in the world, yet the blatant estrangement of the Kashmiri populous from the mainstream democratic processes of this largest democracy is the bitter irony of the Kashmiri tale.

Question 2: Of Pandits

Ashok Bhan, in his essay, Positive Peace in Jammu and Kashmir, states perceptively, "Without fear of contradiction, it can safely be stated that Kashmir will never be the same without the Kashmiri Pandit community." Kashmiriyat is the ethno-national social consciousness and centuries old indigenous characteristic secularism of Kashmir. This secularism prompted Mahatma Gandhi to see a ray of hope in Kashmir when the entire sub-continent was engulfed by communal frenzy in 1947. Prime Minister Vajpayee echoed the same optimism when he said, "Gun can solve no problem, brotherhood can." He proposed, "Insaaniyat, Jamhooriat and Kashmiriyat" as the tri-fold solution. Regrettably with the demoralisation of Kashmiri politics, the nationalistic leaders who had earlier derived legitimacy from traditional Kashmiri secularism lost ground and the new age leaders started deriving appeal from increasingly secessionist and communal movements. Kashmir's realisation of distinction grew and has been on the rise since. The exodus of Kashmiri pandits is symbolic of New Delhi's besmirched record of governance and as time passes the identity of these rootless citizens erodes further. Is it not shameful that legitimate citizens of the motherland have had to live in their own country as Kashmiri 'migrants'? New Delhi must realise that governance is in essence a diachronic assemblage, it cannot function in isolation of factors composite to it. The disjuncture between political will and political deed must be bridged with immediate effect.

Question 3: Of The Constitution

New Delhi's treatment of Articles 370 has been instrumental in the proliferation of disputativeness of the modern Kashmiri identity. According to Madhav Khosla, Article 370 has emerged, "asymmetric in the opposite sense to that intended." Quoting the Government of Jammu and Kashmir's Report of the State Autonomy Committee, "Designed to protect the State's autonomy, Article 370 has been used systematically to destroy it." New Delhi's 'chipping away' approach to Article 370 has led to the demise of the avowed Kashmiri autonomy through the systematic erosion and dilution of it.

The legal position on Article 370 has been settled through a series of landmark judgements that include, Madhav Rao v. Union of India, Magher Singh v. Principal Secretary, Jammu and Kashmir and Prem Nath Kaul v. State of Jammu and Kashmir, to mean that neither the Instrument of Accession, nor Article 370 detracted from the sovereignty as rightfully enjoyed by the ruler of the princely state and since the erstwhile Constituent Assembly of the state dissolved without recommending the abrogation of Article 370, it must continue to stand in all its intended glory. However, can New Delhi's corrosive approach to Kashmir's constitutionally guaranteed autonomy rest on the shoulders of the mere black and white letter of the law while feigning deference to the voice of the people it was intended to govern and if so, for how long?

The subject of development in Kashmir has been taken hostage to these wrangling contradictions. New Delhi must awaken to the echoes emanating from the valley and imbibe unmistakable constitutional courage to steer itself through these troubled waters. The answer to New Delhi's Kashmir quandary comes from within, not without. The answer lies in learning to see beyond the ersatz fog of Us and Them.

The Legality of The Kashmiri Right to Self Determination

Kashmiris have been a victim of both a proxy political war and a conventional land war.

It may be conceded, given the inherent complexity of the Kashmir conundrum, that there exists no perfect solution to the problem, however, this concession must be accompanied with the much needed realisation that the solution to Kashmir lies with the Kashmiris. Ali Ahmed of the Kashmir Times, opines rather understandably, "Unmet political demands for substantial autonomy, (as provided within the framework of The Constitution of India) arising in the sentiment of Azadi, keep alive the disaffection." The systematic alienation and build-up of the trust deficit has transformed the Kashmiri youth into an increasingly 'in-ward looking generation'. Predominantly, the youth's espousal of the Kashmir conflict is two-fold; first, on the basis of the 'wishes of the people' and second, the much debated right to self-determination.

The seat of legality on both of these contentions is essential to countering the fragility of the frozen peace process in Kashmir. Preliminarily, with respect to 'wishes of the people', in S. Mubarik Shah Naqishbandi, the Jammu and Kashmir High Court, considering the question, held unequivocally that, "the wishes of the people were fully ascertained as promised by Mountbatten in the shape of the election of the representatives of the people who framed the present Constitution of the State." In Ghulam Rasul v. State of Jammu and Kashmir, AIR 1956 J&K 17, the Full Bench of the Jammu and Kashmir High Court reviewed the history of the accession of the princely state of Jammu and Kashmir and held that "with the coming into existence of the Constituent Assembly, all rights, authority and jurisdiction of the ruler were surrendered to the people of the state, who were then in turn represented at the Constituent Assembly through their elected representatives." Subsequently the accession of the princely state was endorsed, after due consideration and debate by the state's Constituent Assembly on 15 February 1954. Additionally, The Constitution of Jammu and Kashmir declares, in no uncertain terms, the state of Jammu and Kashmir to be an integral part of the Union of India.

The Kashmiri right to self-determination is central to the Kashmir conundrum, however, in light of the aforementioned established position of domestic law, such a right does not erode, but rather strengthens the stark democratic credentials of India. The United Nations at its 50^th anniversary session, affirmed with a resolution, "the right to self-determination of all peoples, [should not be construed] as authorising or encouraging any action that would dismember or impair the territorial integrity or political sovereignty of sovereign and independent nations." A political solution must definitely be sought, however, our leaders must not commit the folly of making such a solution subservient to 'regional aspirations', for doing so would give way to further deepening of the lines of division.

Forty eight per cent of the population in Kashmir falls within the age bracket of 15-35 years. Thus conflict is all, the Kashmiri youth have ever known. It has become imperative for New Delhi to put these growing concerns, critical to the Kashmir solution, under a microscope and the diagnosis that follows thus, must be the formulation of comprehensive and sustainable policy of outreach. The apprehensions of the Kashmiri youth need to be dispelled not by mere rhetoric but by conclusive, positive steps. Unless the dividends of New Delhi's peace process reach the Kashmiri youth, the feeling of alienation and separatism shall continue to dominate the Kashmiri discourse.

An Imperfect Solution: Security, Politics and Outreach

Security

It is true that violence vitiates peace, but the cessation of violence may not always be tantamount to the dawn of peace. Reduction in violence is a positive statistical reality not a sustainable solution. Certainly the state of Jammu and Kashmir is autonomous to the extent that it may withdraw Disturbed Areas Act from specific areas, in view of the statistical reduction in violence. However, the proxy war in the valley is not a mere law and order problem but a wider security concern. Kashmir is the most militarised zone in the world, defined as a 'Nuclear Flashpoint' and the largest contributor to global insecurity. The politicised military and its excessive use thereof, acts an irritant in the region. In the words of columnist, Javed Malik, "the youth need an assurance that no one would touch them if they are innocent." To begin with, an attitudinal change that flows from New Delhi, with respect to a step-by-step curtailment of AFSPA (The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990), complimented with effective governance is a risk worth taking. If successful, this would infuse the valley with a sense of new-found peace. The biggest obstacle in achieving this goal remains to be our neighbour's characteristic unsure democratic credentials.

Politics

The political discourse in the valley fluctuates with the changing hues of Pakistan's chameleon democracy. Pakistan pretends to be a solution to the Kashmir conflict. In doing so it fails to appreciate the fact that it has played the greatest role in creating ambivalence in Kashmiri minds regarding their Indian identity. Pakistan acts as a revisionist power in Kashmir. India's response to Pakistan's unilateral decision in handing over 1.2 lakh acres of occupied Kashmiri territory to China was devoid of any serious strategic or diplomatic repercussions. This myopic view on Kashmir is furthered by the incessant insistence of the elite intelligentsia to refer to the Kashmir conundrum strictly as a bilateral issue involving Pakistan. The fundamental dilemma with a bilateral approach to resolving the Kashmir conundrum is that, it can only function in a lasting fashion between equals. A bilateral outlook to negotiating sustainable peace between India and Pakistan has led to futile political posturing rather than effective solution-seeking. In the current geo-political scenario, the commencement of every discourse on Kashmir should not require us to pay a salutary reverence to Pakistan's position on the issue. New Delhi must be confident of its unilateralism as long as it proves to be an effective tool in the valley.

Pakistan has maintained its age-old stance in favor of referring the dispute to a third party international adjudicator. It is true that the Shimla Agreement does not rule out a limited reference to the International Court of Justice at the Hague. However, New Delhi must learn from the past and observe caution in taking the Kashmir issue to the international forum since doing so will allow political commentators and third party interventionists to blur the lines of aggression and mask it with the controversial politics of the valley. Jonathan Rodrigues, in the Kluwer Mediation Blog, writes, "To apply balm for these wounds and treat Kashmiris, India does not have to talk to Pakistan." New Delhi's renewed view of Kashmir is imperative to solving problems in its own backyard.

Outreach

Kashmir does not need our pity, it deserves our empathy. Alienation of Kashmir is a living reality with profound trans-generational impacts which have translated into the severest strain on the territorial and cultural integrity of India. The coup de grâce of the Kashmir conundrum was the paradox of building of nationalism, accompanied with the simultaneous decay of the process of democratisation in the valley. In the last seven decades, New Delhi has tried, but in vain, to reverse this. Reforming Article 370, by replacing the term 'temporary' with 'special', as used for other states, introducing transparency in the appointment process of the Governor in consultation with the state, exercising restraint in invoking Article 356, are just some of the measures New Delhi must consider with all seriousness.

As the saying goes, civilisations die by suicide, not murder. The Kashmir conundrum is wrought with double standards in New Delhi's dealing, with the issues of importance in the valley. It is said, one must approach the court with clean hands. Referring the dispute to a third party adjudicating authority shall not prove fruitful, at least not before New Delhi rinses its hands in the river of empathy and outreach that flows unto the citizens of Kashmir.

The author is a 2nd Year, B.A. LL.B student at Dr. Ram Manohar Lohiya, National Law University, Lucknow.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]