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  Opinion   Columnists  25 Aug 2019  After Art 370 scrapping, the Shimla pact is virtually ‘dead’

After Art 370 scrapping, the Shimla pact is virtually ‘dead’

The writer is an author and lawyer based in Mumbai
Published : Aug 26, 2019, 12:00 am IST
Updated : Aug 26, 2019, 12:00 am IST

They are an integral part of the decision taken in 2014 to bar all talks with Pakistan on the Kashmir dispute.

Children walk past concertina wire during restrictions following the abrogation of the provisions of Article 370 in Srinagar on Friday. (Photo: PTI)
 Children walk past concertina wire during restrictions following the abrogation of the provisions of Article 370 in Srinagar on Friday. (Photo: PTI)

It is most unlikely that the Modi government did not reckon with the international as well as domestic consequences of the measures it took on August 5 to dismember the historic status of Jammu & Kashmir. It has invited the people of J&K to rise in revolt. How long can the curbs last? Forever? Once they are lifted, some day, at some point, the pent-up popular resentment will express itself. It will not be mollified any longer by New Delhi and its local stooges.

These measures were long in the making. They are an integral part of the decision taken in 2014 to bar all talks with Pakistan on the Kashmir dispute.

Defence minister Rajnath Singh’s August 18 statement on the talks came close on the heels of his even more sensational statement on the 20-year-old doctrine of “no first-use” of nuclear weapons. Singh asked, “On what issue should we have talks and why? About what should we talk?”

The 1972 Shimla Agreement, by which India had sworn for decades to prevent any international body or foreign power from pronouncing on the Kashmir dispute, provides the answer. Para 1(ii) reads: “That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organisation, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations.”

This was flouted on August 5.

Para 1(iv) says: “That the basic issues and causes of conflict which have bedevilled the relations between the two countries for the last 25 years shall be resolved by peaceful means”, referring to the dispute over Kashmir which had arisen 25 years earlier in 1947. The pledge that “neither side shall unilaterally alter the situation” renders the attempted dismemberment of J&K’s special status void in international law as being violative of this bilateral agreement and the UNSC’s resolutions.

The last provision in Para 6 reads: “Both governments agree that their respective heads will meet again at a mutually convenient time in the future and that, in the meanwhile, the representatives of the two sides will meet to discuss further the modalities and arrangements for the establishment of durable peace and normalisation of relations, including the questions of repatriation of prisoners of war and civilian internees, a final settlement of Jammu and Kashmir and the resumption of diplomatic relations.”

The explicit reference to “a final settlement” of J&K implies: (a) there does exist a dispute between India and Pakistan on the future of affiliation of Kashmir; (b) that dispute yet awaits a final settlement; (c) neither side shall unilaterally alter the situation. Rejection of unilateralism in Para 1(ii) refers, in a general and sweeping scope, to “the situation”. It is rejected again in a more specific context. Para 4(ii) says: “In Jammu and Kashmir the line of control resulting from the ceasefire of December 17, 1971 shall be respected by both sides without prejudice to the recognised position of either side. Neither side shall seek to alter it unilaterally irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the threat or the use of force in violation of this line.” This was violated in Siachen.

Hitherto, India’s stand was that the dispute must be resolved bilaterally. But India rejected its corollary that there should be meaningful talks on the dispute and, implicitly, proposals for its peaceful bilateral solution; that implies a compromise.

The Modi government has now gone a step further. It rejects the very idea of talks.

If driven to the table, it will not discuss the part of Kashmir on its side of the line of control. This explains the cancellation of the foreign secretaries’ talks in 2014 on petty grounds.

By wrecking Kashmir and thumbing its nose at the UN, it seeks to declare “closure” of the dispute.

On September 12, 1993, all hell broke loose when US assistant secretary of state Robin Raphel said, “There has been little follow-up to the Shimla Agreement”. When asked to explain these remarks at her famous briefing on October 28, 1993, she was candid: “It is a simple fact that the Shimla Agreement has not been very effective up to this point. ... It’s fine to discuss the Kashmir dispute under the Shimla accord, but it needs to happen and it hasn’t thus far.”

Truth be told, the Shimla pact is dead. In 1972, Sheikh Abdullah objected to the Shimla summit itself because Kashmir was not a party to it.

The people’s surge since 1989, 30 years ago, added a new dimension. They revived the issue in full force. They and they alone will decide their future — military force will not. It cannot crush them for long.

By arrangement with Dawn

Tags: article 370, modi government