An Article by Justice Rajindar Sachar published by the Asian Human Rights Commission

INDIA: Peace in Kashmir

Justice Rajindar Sachar

19 August 2010
New Delhi

The reaction to the Prime Minister’s statement on the question of autonomy is on expected lines – cynics say it is not enough but do not conveniently spell out the details. Concerned with human rights violations in Jammu and Kashmir, a team of People’s Union for Civil Liberties (PUCL) including me have been visiting Jammu and Kashmir since 1990 and have given our reports, critical of the government.

I again went in 1993. It was a sad experience, and on my return I said publically “I do not know how and in what manner the Kashmir question will be solved with its nuances of Azadi (freedom), plebiscite and greater autonomy. But one thing is certain and that is India will remain the loser unless the face that it presents to the people of Kashmir valley is humane, compassionate and understanding. At present that face is ugly and insensitive”.

I never thought it could ever become worse. But unfortunately it has – the school children throwing stones are the targets of lethal guns fired by security forces. Even in common idiom “if you hit me with stones, I will return it with bricks”. But the security forces have turned this on head by returning with bullets. There are limits, which no civilised government can cross – unfortunately Kashmir and central government let the security forces do that. The killing of three security guards at Sopore shows the dangerous situation.

It is a sad reflection on the working of political parties in Jammu and Kashmir that they refuse to sit together to find acceptable solution notwithstanding that all of them have sometime been part of government of Jammu and Kashmir.

But equally the strategy of central government is fudgy. Home Minister Chidambaram comes out with what he thought was a brilliant coup by agreeing to hold talks, and especially mentions Gillani as the pivotal point. Those who advised him seem to be totally impervious to the openly reiterated position of Gillani (that he is asking for plebiscite in the hope that Jammu and Kashmir will opt for Pakistan).

It has to be recognised that youths throwing stones are expressing their sickness with all parties in the valley and are demanding a permanent answer to the future of the valley. The Prime Minister’s statement on the autonomy has given a opening. But it must be appreciated that this step would necessarily involve all political parties of India and including those of Jammu and Kashmir. This requires immediate release of Mr. Yasin Malik, Mr. Shabir Shah and no restrictions on Mr. Maulvi Omar and even Gillani (of house arrests). All these leaders must be asked to come out clean with their concrete solutions instead of taking cover of asking India to sort out the Kashmir question with Pakistan. No doubt the governments of India and Pakistan will have to continue talks to arrive at a mutual agreement but prior to that if the government and parties in India arrive at an agreed solution, it is only then that a permanent solution can be worked out.

The puerile argument of Mirwaiz and Gillani that solution must be found for “whole of Jammu and Kashmir which existed before 1947 as one unit with option to join Pakistan is a non starter. In that context it is well to repeat the opinion of Jurist Alstair Lamb (obtained by Pakistan) that “it can fairly be said that in deciding to accede to India, the Maharaja of Kashmir was well with his rights according to the 1947 Act which had nothing to say about communal issues in this respect”. Will these gentlemen now ask Pakistan to vacate the portion of Jammu and Kashmir under its occupation?

And when they talk of the whole of Kashmir, will they also spell out what their plans are to retrieve thousands of square miles in Aks Chin (Jammu and Kashmir) having been permanently ceded to China by Pakistan. And while at this they may also explain to their constituents as to how to undo the Baltistan Gilgit package (area of Jammu and Kashmir in Pakistan), which has now by legislation been incorporated in its territory and Pakistan’s direct control of Northern areas. So who is befooling whom with the so-called nostalgic mention of Jammu and Kashmir being continued as a practical solution?

I do not believe that Pakistan or leaders like Gillani are so ill-advised as not to recognise that the part of Jammu and Kashmir on the Indian side is sacrosanct and non-negotiable. Nor I believe that all the parties in India can be so dense as not to accept the ground reality that considering the price that Jammu and Kashmir has paid in terms of human misery during these two decades of militancy and alienation that has been built-up, now it would be illogical for Indian leadership to hope that talks can take place within the parameters of the normal Centre-State relationships.

In order to give such reassurance, the Central Government should concede that apart from the subjects acceded in 1947, namely defence, foreign affairs, communication, currency to the Central Government, the rest of the subjects will vest in Central Government State Government. In order to further reassure the people of Jammu and Kashmir, the Central Government should agree unilaterally to withdraw all central legislations that have been extended up to date to Jammu and Kashmir. It will then be up to the Jammu and Kashmir legislature to pass new laws or apply those laws with suitable modifications, as they feel necessary.

Some well meaning people react adversely to this suggestion on the ground that this would be creating a special category unlike the other parts of the states. But why should it surprise anyone because Jammu and Kashmir is a special case and is so recognised in our Constitution by Article 370, which is non derogable. This suggestion of mine is only putting life to the original content of Article 370.

But that does not mean watertight separation of two parts of Jammu and Kashmir. In fact all efforts have to be made to continue the underlying oneness of the state. Thus so far as the borders between the two parts of Jammu and Kashmir are concerned, they can be made as porous and as free as between USA and Canada or even like as at present in the European Union. People belonging to each side should have no problem not only in travelling but in even having trade with each other freely.

Of course ordering judicial enquiry into all these killings is immediate. As an immediate gesture the Armed Forces (Special Powers) Act, 1958 must be withdrawn straightaway. Even an individual can use appropriate force, if necessary – of course subject to judicial scrutiny – so why keep this legislation alive when it is admittedly an impediment in peace returning to the valley?

I feel a High Powered all party delegation of the members of the parliament should immediately go to Srinagar and express their regret to the members of the family of those who had died or been injured. They should also meet the youth. This will give assurance to the public that that the rest f India cares for its compatriots in Jammu and Kashmir.

The Holy Ramzan has started – may it usher peace and understanding to all of us.

The views shared in this article do not necessarily reflect those of the AHRC, and the AHRC takes no responsibility for them.

ETC-Justice Rajindar SacharAbout the Author:
Justice Sachar is a prominent Indian jurist. He has held several important positions as a jurist and as a human rights activist in India and abroad. He was the Chief Justice of Delhi High Court and former Chairperson of the Prime Minister’s High Level Committee on the Status of Muslims. He was also the UN Special Rapporteur on Housing and a member of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. Justice Sachar was also the President of People’s Union for Civil Liberties, a prominent human rights organisation in India.

Currently Justice Sachar resides in New Delhi and could be contacted at: +91 11 26847786,26830194.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Document ID :AHRC-ETC-017-2010
Countries : India
Date : 27-08-2010