12/30/2016 'Why are we handing over our territory to Pakistan? Rediff.com India News
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Text size: A A A Last updated on: June 13, 2016 11:12 IST 'Our policy seems to be to give away part of J&K, even though we are entitled to the entire state.' 'The Congress has done so, and the BJP is following the same policy.' 'No one is applying their mind to the legal position.' 'Kashmir is not a part of Pakistan under its own constitution.' Latest from rediff.com
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IMAGE: A view of Srinagar from Pari Mahal, Kashmir. Photograph: Mridula Dwivedi Demonetisation has driven Solapur's beedi workers to loan Aman M Hingorani, a Supreme Court lawyer, has come up with an extremely well sharks researched and compelling book on the Kashmir dispute, Unravelling the Kashmir Knot (Sage). Here's how much Aamir, Salman, Dr Hingorani, left, below, believes it is imperative both to depoliticise the issue and then take Akshay have recourse to resolving the dispute by following the legal route as a key way to achieve enduring made in 2016 peace.
He spoke to Rediff.com contributor Rashme Sehgal.
What made you want to do a book on Kashmir? http://www.rediff.com/news/interview/whyarewehandingoverourterritorytopakistan/20160613.htm 1/10 12/30/2016 'Why are we handing over our territory to Pakistan? Rediff.com India News I, as such, have no connection with Kashmir. I had completed my LLM from the UK and was searching for a topic for my doctoral thesis. My father, who was a pre Partition lawyer, suggested that I look at the Kashmir issue as every conceivable principle of law had been Kohli on turned on its head in creating and sustaining this issue. engagement rumours with I felt that no comprehensive legal analysis on India's Anushka stand on J&K had been undertaken and I believed this would be an interesting area to look at academically. What will Modi The Partition of India took place because the tell us on 31/12? British wanted to create a sphere of influence in the subcontinent. Since the British had poor relations with the Congress, they felt the Congress would deny Britain military cooperation so they Karan Johar settled for the Muslim League and Mohammed Ali Jinnah to help them establish becomes An Unsuitable Boy! a separate State, namely Pakistan.
The Great Game was being played out between Britain and Russia. The British wanted to stop Russian influence southwards, where the oil wells were located. The British knew they would 6 die of have to transfer power to Indian hands, but they did not want to let go of the entire suffocation as fire subcontinent. breaks out in Pune bakery Jawaharlal Nehru had already stated that he did not want an independent India to be part of the Commonwealth.
Declassified British archives disclose that since the British wanted to retain a slice of India, Stars spotted! What's this?
they felt that the northwestern part of India (particularly, the North West Frontier Province) Spotted: Vindu Dara Singh at Mumbai aiport could become a friendly State for their strategic, political and defence interests. Reader Swanand V Gogate sent us a photograph. More stars spotted The Muslim League had been created by the British initially to communalise the Indian polity with a view to offset the freedom struggle spearheaded by the Congress. Met a celebrity? Since the northwestern region of the subcontinent was predominantly Muslim, the British Email us photos & videos handpicked Jinnah to mouth the two nation theory in order to create Islamic Pakistan.
For them, Pakistan was a means of continuing to wield power in this region.
The British outwitted the Indian leadership into letting the Congressruled NWFP go to Pakistan, was complicit in Jinnah's 'Direct Action.' leading to a bloodbath in Bengal, Punjab and other parts of the country, and even effected the coup in the strategically located Gilgit to hand over such territory of J&K to Pakistan after J&K had acceded to India. "We are seeing terrorist movements in the guise of a freedom struggle because Nehru said the Kashmiris had the right to selfdetermination. We created the problem in the first place."
The British were playing a dangerous gam e by stoking this religious frenzy between the Hindu and Muslim communities. They knew we would head for a bloodbath?
They were ruthless, viewing the dead and dispossessed Indians as incidental damage. Lord Mountbatten is on record as having said 'What is 200,000 (dead Indians) out of 400 million? That is one person in 2,000, isn't it. It is a fractional percentage.'
http://www.rediff.com/news/interview/whyarewehandingoverourterritorytopakistan/20160613.htm 2/10 12/30/2016 'Why are we handing over our territory to Pakistan? Rediff.com India News The whole world was looking with amazement at how we gave the British, who divided the country, a festive farewell.
It seems shocking that the British were working according to a blueprint to divide the country about which the Congress did not have a clue. You write about the seeming innocence of Indian politicians.
It was only a handful of Indian leaders in undivided India who were hobnobbing with Mountbatten. Following Partition, the British were heading both the Indian and Pakistani armies. We remained a British dominion till 1950.
Right up to 1948, our entire Kashmir policy was being formulated by Mountbatten heading the Emergency Committee and the Defence Committee of the Indian Cabinet.
IMAGE: The conference in New Delhi where Lord Louis Mountbatten disclosed Britain's plan for the Partition of India. Left to Right: Jawaharlal Nehru, Lord Ismay, adviser to Mountbatten, Lord Mountbatten, and Mohammad Ali Jinnah. Photograph: Keystone/Getty Images.
How could we have been so naive?
We were politically naive. My sense is that very effective smokescreens had been created by the British. They cultivated Jinnah.
In the Simla Conference of 1945, they made Jinnah the sole representatives of all Indian Muslims even though he had little or no support of Indian Muslims. They identified influential Muslims to counter the Hindus and other Muslims.
They set people against each another, like they did to disintegrate the Ottoman Empire in the Middle East.
They encouraged traditional HinduMuslim differences to deteriorate into a killing frenzy.
Congress President Acharya (J B) Kripalani had said that if we go on like this, retaliating and heaping indignities upon each other, we shall progressively reduce ourselves to a stage of cannibalism and worse, and in every fresh communal fight the most brutal and degraded acts of the previous fight became the norm. http://www.rediff.com/news/interview/whyarewehandingoverourterritorytopakistan/20160613.htm 3/10 12/30/2016 'Why are we handing over our territory to Pakistan? Rediff.com India News The entire political leadership of undivided India was naive. The Pakistani historian Ayesha Jalan has written that people who we thought had statesmanship, acumen and farsightedness were left blinking their eyes while the British divided the country with stern calmness.
Nehru promised a plebiscite in J&K to determine the wishes of the people to accede to India or Pakistan.
Both modern day India and Pakistan are creations of British statutes enacted to give effect to the political agreement driven by the British and the Muslim League, and eventually accepted by the Congress, to partition the subcontinent.
According to this agreement, the British provinces were to be partitioned according to the two nation theory, which I have explained was conceived by the British to create Pakistan.
However, all the princely states were to regain full sovereignty and that sovereignty vested in the ruler, regardless of the religious complexion of the people of that state.
It was the ruler alone who could offer accession. These British statutes were accepted by India and Pakistan. Pakistan had taken the correct legal position that princely states were sovereign in the full sense of the term as of August 15, 1947.
J&K was a sovereign state on August 15, 1947, which is why it could accede to sovereign India in October that year. Pakistan had no say in the matter. But because of the controversial accession of the princely states of Junagadh and Hyderabad, the Congress formulated a policy making the wishes of the people relevant to the accession of a princely state.
Nehru then agreed that this would apply to J&K.
But the question to be asked was whether Nehru could make a promise that was contrary to the constitutional law then in force and which was accepted by both India and Pakistan namely, the British statutes. These statutes the Indian Independence Act, 1947 and the modified Government of India Act, 1935 clearly stipulated that it was only the ruler who was competent to decide the future of his princely state. The Instrument of Accession by the princely states was unconditional and not subject to the wishes of the people.
Yet Nehru sent cables to Liaquat Ali Khan and to world leaders that the accession of J&K to India was subject to the reference of the people of that state.
New Delhi kept reiterating this stand even in its White Paper on J&K thereby creating a feeling of injustice amongst the Kashmiri people when no reference was held.
It was overlooked by Nehru that once a political decision has been crystallised into law, the executive has to accept this for it cannot act beyond its power.
New Delhi has acted beyond the scope of its power by promising selfdetermination and plebiscite in J&K.
We are seeing terrorist movements in the guise of a freedom struggle because Nehru said the Kashmiris had the right to selfdetermination.
We created the problem in the first place.
http://www.rediff.com/news/interview/whyarewehandingoverourterritorytopakistan/20160613.htm 4/10 12/30/2016 'Why are we handing over our territory to Pakistan? Rediff.com India News
▲ IMAGE: 'On December 2, 1947, Nehru wrote to Maharaja Hari Singh that Sheikh Abdullah should be the prime minister of Jammu and Kashmir and should be asked to form the government. With this letter, Nehru took over the shaping of India's Kashmir policy so far played by Patel as minister of states,' Sanjeev Nayyar wrote in a column on Rediff.com
Did Mountbatten play a devious role and outwit the Indian leadership to take the Kashmir problem to the United Nations?
The British did not need the whole of Kashmir. They just needed the northern areas of J&K for the Great Game with the Russians, and the slice of land known as 'Azad Kashmir' to protect Pakistan from liquidation should India try to vacate the aggression.
At the time of accession of J&K, Mountbatten said he would sign the Instrument of Accession (as the governor general of the Dominion of India) only if Nehru agreed to hold a plebiscite in J&K to determine the wishes of the people.
He then persuaded Nehru to commit to plebiscite before the UN Security Council.
The Security Council called for a ceasefire, without requiring Pakistan to first vacate the areas that it had occupied through aggression.
Thus, in the guise of a ceasefire, the Security Council allowed Pakistan (and through Pakistan, the British) to retain precisely those areas of Kashmir which the British needed for the Great Game. It was a trap laid at the Security Council, which is a political entity. http://www.rediff.com/news/interview/whyarewehandingoverourterritorytopakistan/20160613.htm 5/10 12/30/2016 'Why are we handing over our territory to Pakistan? Rediff.com India News Interestingly, under the British statutes, the accession of J&K to India was unconditional, final and complete. But the British representatives argued to the contrary before the Security Council.
The Security Council overlooked that when the UN accepted India as a member State, it accepted its territorial integrity, which includes the entire territory of J&K.
Furthermore, Kashmir is not a part of Pakistan under its own constitution.
What was the Indian stand after the Security Council debacle?
Since then, the Indian policy seems to be of territorial status quo and of converting the LoC into the international border.
That is, India would give up the territory of J&K occupied by Pakistan and China. At one time, the Supreme Court had held that Parliament can cede Indian territory.
But after the formulation of the basic structure doctrine by the Supreme Court in 1973, even Parliament has no power to tinker with the basic structure of the Constitution.
This, according to the Supreme Court, includes unity of the country. As a result, Parliament today cannot give away Indian territory.
Unfortunately, our policy seems to be to give away part of the state, even though we are entitled to the entire state of J&K and we cannot legally give away any part of Indian territory.
Following the policy of status quo, we handed over our own territory to Pakistan we gave away Haji Pir we won in the 1965 War, we gave away territory we had won in Kargil.
Under what provisions of law are we handing over our territory to Pakistan?
The Congress has done so, and the Bharatiya Janata Party is following the same policy. No one is applying their mind to the legal position.
In fact, China is asking Pakistan (who has no right to any part of J&K) for legal documents for the Northern Areas in order that they can safeguard their economic investments in those areas.
Your book talks of two steps to resolve the Kashmir issue.
Since we created doubts about the unconditional nature of the accession ▲ of J&K to India, internationalised the Kashmir issue and conferred a disputed territory status on J&K, we need to, as a first step, confirm, as it were, our title deeds to J&K, which would clearly show that the whole of J&K belongs to us.
The only body that can look into this issue is the International Court of Justice. We need a finding from this body because it will be binding on both India and Pakistan and all other members of the UN. Otherwise, no one is going to listen to us.
If the International Court of Justice gives a verdict in our favour, then other nations will no longer be in a position to say that what is going on in J&K is a freedom struggle and will have to ask Pakistan (and China) to vacate the territory of J&K under their occupation.
If we fail to convince the International Court of Justice, we fall back on our existing stand and so we lose nothing.
Having the correct legal position will help alter the current political discourse and swing political opinion in our favour to create a momentum for winning the confidence of the people. But law alone will not resolve the Kashmir issue.
The second step would be to regain the moral authority to be in J&K and to undo past mistakes.
Once we make the international community accept that J&K is part of India, we must restore the sanctity of Article 370 of the Constitution, roll back the Armed Forces Special Powers Acts http://www.rediff.com/news/interview/whyarewehandingoverourterritorytopakistan/20160613.htm 6/10 12/30/2016 'Why are we handing over our territory to Pakistan? Rediff.com India News and try new methods of conflict resolution, and address the adverse ground realities.
The chief justice of India has rightly said that we need to win over the hearts of the people in J&K.
Are you optimistic?
The Kashmiris generally feel that they have been backstabbed. Pakistan believes that Kashmir belongs to them. Debates in Indian universities are about whether we are an occupying army.
The misconceived policy of territorial status quo is implicit in the Simla Agreement and the Lahore Declaration.
We need to depoliticise the Kashmir issue by subjecting it to a legal analysis and then take steps to change the current political discourse, both nationally and internationally.
We need to reclaim moral authority in J&K.
The way forward suggested in the book is not an easy fix, but is the only viable option we have.
Whether we will be able to win over the confidence of the people of J&K depends, in the ultimate analysis, on the character of the Indian State and of the men and women who run it.
'Jawaharlal, do you want Kashmir, or do you want to give it away?' The Real Kashmir Story The Blunders of the Pandit 'Nehru was as much to blame as Jinnah for Partition' 'They were determined to strangle Pakistan at birth' The soldier who won the first Param Vir Chakra J N Dixit: The Errors of Simla
Rashme Sehgal
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Kashmir strife by manish manish (View MyPage) on Aug 29, 2016 11:49 AM
Legally we are bound to our constitution. Whenever a legally elected Prime Minister crosses the constitution it is the Constitution which governs the issue and not vice versa. In effect we have to rectify and represent the issue accordingly. Pakistan has backtracked on its commitments and got away with it. Can we not make a legal representation and swing international opinion without going into Plebiscite.
Reply Forward | Report abuse ▲ Territory demand from PAK by arungopal agarwal (View MyPage) on Aug 29, 2016 11:17 AM
% of people migrated to India from PAK after 1950, pro rata land must be claimed from PAK to settle these people in India.
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Take back POK by Mike Teflon (View MyPage) on Aug 11, 2016 05:48 PM
and cutoff Pakistan from China. That should solve all problems in lieu of some interim hardship.
Nehru dismissed POK as a barren land. His successors too did not realize how strategic it is..
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J&K issues... by Krunal Gajjar (View MyPage) on Jul 27, 2016 10:59 AM | Hide replies
Created by Nehru and forwarded by his family...
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Re: J&;K issues... by Mike Teflon (View MyPage) on Aug 22, 2016 01:47 PM Yep, extremely unfortunate. Nehru cared more for his personal prestige than the unity & integrity of India.
Sardar Patel should have been our First PM..
Reply Forward | Report abuse http://www.rediff.com/news/interview/whyarewehandingoverourterritorytopakistan/20160613.htm 8/10 12/30/2016 'Why are we handing over our territory to Pakistan? Rediff.com India News
J&K State by MR Baba (View MyPage) on Jul 27, 2016 10:35 AM | Hide replies
World community including India & Pakistan must understand that J&K State is not personal property of any individual this belongs to the people of J&K State and they are the sole owner of the J&K State.J&K State was sovereign independent State till 1947 but with was occupied by India and Pakistan against the wishes of the people of J&K State and present turmoil is outcome of that forcible occupation. Both Country's have to vacate the occupied territory under their occupation enabling to provide opportunity to the people of J&K state to decide their future as per their aspiration.
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Re: J&;K State by jignesh narayan parmar (View MyPage) on Aug 01, 2016 09:25 AM WHAT EVER THE BRITISH WANTED THEY DID what about the leaders were they fools
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Moderated by PK Sagar (View MyPage) on Jul 27, 2016 09:45 AM | Hide replies
I had once written in your write a message space, exactly the same things regarding the sinister plan of the British and how Pakistan itself was a disputed territory . I was promptly censored by your hyperactive team of moderators
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Re: Moderated by PK Sagar (View MyPage) on Jul 27, 2016 09:46 AM WOW you had the courage to let this pass
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PARTITION by R K (View MyPage) on Jul 26, 2016 11:00 PM
Britishers and their allies are known for creating two nation theories the world wide. By creating PAK they divided a strong NATION as they were afraid that this region can redevelop to be flourished and strong if allowed freedom as one piece. Moreover they divided the country economically to make it hunger stricken. So by hook or crook they created the a 'bone of contention'. Theory of creating East Pak and West Pak under one Pak is clearly indicating ▲ their intentions. Since olden times INDIA had been rich in culture, spirituality and exports. After the division the most wheat,rice, cotton producing areas, hydels, canals and rivers went to West Pak leaving india starved of food/elect power. The best textile, rice producing areas (and also the Bay of Bengal) went to East Pak. But our short sighted politicians have never analysed the partition from angle. They always view the problem from religion point of view. Perhaps they still are under the impression that only westerners are intelligent and they go on seeking advice from them.
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HINGORANITHE VOICE OF EVERY TRUE INDIAN. by santosh kumar (View MyPage) on Jul 25, 2016 06:44 PM
Congrats Mr Hingorani !!! You have spoken for all of us.
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