Jurisprudence of the Kashmir Case

On the question of a basic right of the people of Jammu and Kashmir to self-determination one has no problem to poise in accordance with the jurisprudence of the case. People of Kashmir have a ‘title’ to the right of self-determination, while as India and Pakistan have their respective ‘claims’. In the event of a dispute, the affinity and positioning of a party is always suspect and biased?

Sovereign states India and Pakistan have charter obligations to peace and security. Peace is a prelude to any script of progress and development in these two countries.

India and Pakistan have subscribed ‘to maintain international peace and security and to that end, to take effective collective measures for the prevention and removal of threats to peace and for the suppression of acts of aggression or other breaches of peace and to bring about by peaceful means and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace’.

In addition to this principal obligation in regards to peace India and Pakistan, have taken upon awkward positions vis a vis the two governments of Jammu and Kashmir at Srinagar and Muzaffarabad.

The non-government actors, in the form of two oppositions in Srinagar and Muzaffarabad too have a role in the dispensation of a political and social justice to the people of Kashmir.

There are myriad more components working to promote the general welfare in the civil society. Unfortunately the government in Srinagar has insulated itself against its duty to the people across the line of control.

The government in Muzaffarabad too forgets its duty to people on the other side of the line of control. Both Srinagar and Muzaffarabad perpetuate their respective interests by crying wolf and sit idle to watch the daily death and destruction caused by the exchange of firepower between India and Pakistan.

The first important step is to look for a jurisprudence that the two countries have assented to and short-list the areas where they remain in dispute.

While looking upon the agreed features of the existing jurisprudence between India and Pakistan, it is equally important to take into consideration the Kashmiri poise to this common minimum. It is understandable that the three parties India, Pakistan and the people of Kashmir have a common minimum and at the same time hold positions at variance to each other.

The history of mistrust between India and Pakistan is rooted in the scheme and scene of partition. The two countries shall have to endure it until the coming generations dismantle the 'Bastille' of their bad memories. The process of freeing oneself from the sad past could be expedited by an intra-people contact and the support of the world community.

India and Pakistan caused themselves as parties to the dispute in January 1948 at the United Nations. However, an Instrument of Accession with India and a Stand Still Agreement with the Government of Pakistan pre date the UN involvement.

It is important that we understand the respective jurisprudence of the Indian and Pakistani control. India has based her reliance on the Instrument of Accession and the successive elections in Kashmir.

Pakistan has assumed control in Azad Kashmir under UNCIP resolutions. In regards to Northern Areas Pakistan takes refuge under April 1949 Agreement reached with the government of Azad Kashmir and a political party Muslim Conference.

UN has sealed the dispute that elections cannot be a substitute for a free and fair referendum in Kashmir. The right to participate in elections and the right to self-determination are two separate rights.

Pakistan has assumed a control under UNCIP resolutions in Azad Kashmir but it has not defined the limits of this control. Her agreement on Northern Areas is at variance with UNCIP resolutions and the jurisprudence of its control of Azad Kashmir.

For any serious move on the dispute of Kashmir, it is principally essential that the leadership of Kashmir is 'mature in judgement' and 'enlightened in conscience'. As a pre-requisite it has to understand the jurisprudence of the case in entirety. The first step in this process is to position itself vis a vis India and Pakistan in 'equity and good faith'.

On the question of a basic right one has no problem to poise in accordance with the jurisprudence of the case. While as in the event of a dispute, the affinity and positioning is always suspect and biased?

The UN resolutions, Tashkent, Shimla and Lahore agreements and declarations are the essential jurisprudence on the subject.

The respective controls of India and Pakistan, judgements of various courts, the legislative assemblies at Srinagar and Muzaffarabad and day to day conduct of public affairs in various parts of Jammu and Kashmir, have also created a direct and relevant jurisprudence around the case.

The constitutions of India and Pakistan too reserve an interest in this jurisprudence.

A dispensation on Kashmir is conceded by India and Pakistan at the United Nations. The provisions of Tashkent Declaration and Shimla Agreement further define the contours of handling the dispensation. However, the constitutions of India and Pakistan remain at variance to this jurisprudence.

It is disheartening to note that the understanding of the Kashmiri leadership of this vast flux of jurisprudence is sufficiently unreliable. Their political vocabulary and diplomatic phrase has failed to move with the times and as such has become obsolete. Kashmiri politics has an overbearing punitive component and is not prepared to model itself on tolerance and a popular mandate.

The other important hue missing from the fabric of Kashmiri politics is the non-existence of a sense of accountability, responsibility and culpability. There is no regular mechanism, which a common citizen can invoke and press a grievance against the failings of a leader. A leader is a leader - 'lock, stock and barrel'.

Kashmiris equally suffer a continued disadvantage because they do not have an 'informed choice' to make. They are lead and coerced across a dark alley by the use of violence by the state and non-state parties. Our leaders and their support structures tend to confuse the people of Kashmir on the question of elections and the use of violence. Elections are far distinct a right from the right of self-determination.

India and Pakistan cannot turn their backs on the principal grievance of the people of Jammu and Kashmir. Their control over the respective governments at Srinagar and Muzaffarabad and the Northern Areas has a common jurisprudence under UN Resolutions. Bilateral declarations [Tashkent] and agreements [Shimla and Lahore] four constitutions, Indian, Pakistani, J & K government and Azad Kashmir government and April 1949 agreement on Northern Areas add an agreed and a de facto jurisprudence to the question of Jammu and Kashmir.

Any future dispensation of Kashmir question would at core be in settlement of the basic grievance of the people of Jammu and Kashmir. The UN resolutions, Tashkent, Shimla and Lahore agreements and declarations are the essential jurisprudence on the subject.

In any dispensation it is important to point out that the people of Kashmir have a title to the right of self-determination and India and Pakistan have their respective claims. A title takes precedence over a claim.

Back to Thesaurus