Jammu and Kashmir: Solution within the Indian Constitution?

Linked with Paul Beersmans – Belgium, and with Belgian Association for Solidarity with Jammu and Kashmir BASJAK.

Published on BASJAK, by Paul Beersmans, October 2009, 19 pdf-pages. – Report prepared for the HUMAN RIGHTS COUNCIL, twelfth session Geneva, 14 September – 02 October 2009.

3. CONCLUSIONS (on page 17/19):

a. J&K, as it was before partition in 1947, is at present under the rule of three countries:

  • (1) China: Aksai Chin and a territory of 5.180 km2 ceded by Pakistan to China;
  • (2) India: J&K State comprising Jammu-region, the Kashmir-Valley and Ladakh (districts Kargil and Leh);
  • (3) Pakistan: Azad Kashmir and Gilgit-Baltistan (Northern Areas).

The population of these specific regions is totally different from each other: culture, history, traditions, language, religion, etc. In J&K State, this is also the case for the three regions: Jammu-region, the Kashmir-Valley and Ladakh region. 

b. In order to find a permanent solution a dialogue is necessary on three levels, as we emphasise already since so many years:

  • (1) bilateral level: between India and Pakistan;
  • (2) national level: between the Government of India, the J&K State Government and the representatives of the civil society of the three regions;
  • (3) internal level: between the different regions of J&K.

c. According to the separatist leaders, J&K must remain united within the 1947 borders (see Par. 3. a. above). If they are serious, it is high time the representatives of the three regions of J&K State sit together and have a discussion in depth. Developments have shown that there is a deep rift between Jammu region and the Kashmir-Valley. If they should remain united, a compromise must be found based on mutual respect and trust. In addition, Ladakh may not be forgotten or left out: also here, a dialogue in depth and compromise is needed, as under the present circumstances the LUTF is more than ever stressing the need for obtaining Union Territory status.

d. Violence has been rejected as an instrument for seeking a solution. Pakistan should stop cross-border terrorism and cross-border infiltration, stop sending money, ammunition and weapons, stop giving training. Pakistan decides over peace or violence: as long as Pakistan supports terrorism, openly or covertly, there cannot be peace in J&K. Without peace, there cannot be a solution.

e. Priority must be given to end the sufferings of the Kashmiris. This can only be realised by stopping violence and misleading people. They want to have a future and jobs for themselves, for their children. After 19 years of militancy, it is high time to give the growing up generation a chance to have a normal youth and education. The Kashmiris are fed up with violence. For them the big issue remains a peaceful, lasting solution for Kashmir, which can be accepted by India, Pakistan and the Kashmiris, as this is the only way out of this uncertain situation.

f. If we like it or not (and of course we don’t like it), common bandits and criminals are there in every society. In J&K State however, they are taking advantage of the troubled situation. They are abducting people for money, raping, murdering, extorting money from businesspersons, using mafia practices, etc. under the cover of ‘the movement’. For them this is a lucrative industry and under the present circumstances it is easy to blame the security forces of all crimes that are committed.

g. Corruption adds to the misery and sufferings of the common Kashmiri and has a destabilising effect on the normal functioning of the civil society. Kashmiris who have responsible jobs in the police, in the judicial system, in the administration, etc. are supposed to look after the well functioning of the society. By indulging into corruption, they are betraying their own compatriots. It is high time that at all levels in J&K State a serious effort is made to tackle corruption. It is too easy to point to the Centre as being the origin of all evils. One should have the courage and the honesty to recognise the shortcomings in the own system and take the necessary steps to redress the situation.

h. The peace process came to a standstill after the terrorist attack in Mumbai, in November 08, involving Pakistani nationals. Notwithstanding these hindrances, the composite dialogue must go on. One should not expect a short-term solution, this can only be reached through small steps.

i. The dissident leaders insist that the Kashmiris must be taken into confidence. This is a justified demand, the question however is who should represent the population of J&K in all its segments and differences. On the other hand, most of these leaders do not have a solution. ‘Let a tripartite dialogue start and a solution will emerge automatically’, is their view.

j. The Kashmiri Pandits are the original Kashmiri speaking inhabitants of the Valley. They were hounded out of the Valley by militancy in 1990: some 500.000 of them fled to safer places. This exodus changed drastically the demographic composition of the population in the Valley. After more than nineteen years, the return of the Kashmiri Pandits is more and more blurred. Nevertheless, they have their emotional attachment with their birth ground, their roots. They only can return when peace is there and when the rule of law, not the rule of majority is re-installed.

k. There is no doubt that human rights violations are being committed by the security forces and by the militants. There is also no doubt that not all cases of human rights violations committed by the security forces are disclosed or prosecuted. It is also a fact that the security forces always are blamed if something happens. Dissident leaders do not mention and are not critical on human rights violations committed by militants. On the other hand, security forces should show restraint in controlling demonstrations: firing on unarmed civilians, even if they are pelting stones or trying to attack them, should be allowed only in extreme situations.

l. The Kashmiris expect a lot of the new Government headed by Chief Minister Omar Abdullah: he is young, has a vision, hard working, honest, listening to the demands of the people and paying attention to their basic needs. The challenges are multiple: eradicate corruption and improve the functioning of the administration, the educational system, health care, etc. Terrorism must be tackled. The government must bring back secularism, mutual respect. No fundamentalist-religious underground.

m. J&K State is a trouble tormented state for the last twenty years. Especially in the Valley, the youth grew up in a violent environment. They grew up with the presence of so many security forces, with encounters between militants and security forces, with search and cordon off operations, with human rights violations committed by the security forces and by the militants, with the calls for strikes, harthals, demonstrations, ‘chalos’, shut downs, etc. at the slightest incident by the separatist leaders. Day by day, they witnessed all
this for the last twenty years. They didn’t have a normal environment where youth can grow up to a responsible adult. Violence became a part of their ‘normal’ life. This includes stone pelting, provocation of security forces: these are the games they learned to play. Even if peace returns and a lasting peaceful solution has been worked out it will take years to re-educate the youth and to bring them about respect for moral values.

n. Construction and reconstruction continues (see our photo gallery, click on internal link):

  • In the Valley, the 119 km long railway link between Qazigund (in the east) and Baramulla (in the west) is – new roads are constructed, existing roads are being repaired, improved and enlarged;
  • new official buildings, hospitals, medical dispensations, schools, etc. are being built;
  • historical monuments are being restored or under renovation;
  • shopping centres, hotels, residential areas, houses, posh villas, etc. are being built, renovated;
  • mobile phone became common good and is operative in the remotest areas, and
  • the car park is completely modernised: the latest and most expensive models can be seen.

o. It is often stressed that private industries should come to J&K, as they can create many jobs. This is only possible if the peace process has been resumed, if more CBM are implemented, if prospects for a lasting peace are there. First of all peace must be restored. Private entrepreneurs only have faith in a peaceful solution. if there is no peace there will be no investment: this goes hand in gloves.

p. The cry for the right of self-determination by some parties in the Valley is supported by Pakistan. However, accession to Pakistan is the only accepted option. Indeed, according to the Azad J&K, Interim Constitution Act, 1974, Par 7. (2): “No person or political party in Azad J&K shall be permitted to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the State’s accession to Pakistan”. This same cry for the right of self-determination is heard in the other regions of J&K, also in the areas under Pakistani administration: all options should be left open, such as accession to India, accession to Pakistan, Azadi (= freedom), total independence, partition.

q. Pakistan has no stand in J&K. Pakistan invaded J&K and is at the origin of the de facto partitioning of the State. As early as 13 August 1948 the UN Commission for India and Pakistan requested Pakistan to withdraw its troops from the State as a pre-condition for organising the plebiscite. The same Commission in its resolution of 5 January 1949 repeated this request. Until this date, Pakistan has not withdrawn its armed forces and consequently the plebiscite has not been held.

This conclusion is confirmed by the ‘Report on Kashmir: present situation and future prospects’ of Rapporteur Baroness Nicholson of Winterbourne, Vice Chairperson of the Committee on Foreign Affairs of the European Union, and almost unanimously adopted by the Committee on Foreign Affairs (March 2007) and by the European Parliament. The report is in favour of negotiations with the following wording: ‘In conclusion, the report recognises the ancient and unique heritage of the Kashmiri people, and the rapporteur has nothing but praise for their tenacity. After so many decades of conflict and tragedy in this particularly beautiful and historic part of the sub-continent, it is heartening to see the two great powers, India and Pakistan, coming together with the people of Kashmir and that peaceful solutions are both on the horizon and being implemented, a familiar process which the European Parliament fully supports’.

(full long 19 pdf-pages text).

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