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  Opinion   Oped  25 Jan 2017  Territory issues: Why not play Tibet card?

Territory issues: Why not play Tibet card?

The writer is an advocate practising in the Supreme Court. The views expressed here are personal.
Published : Jan 25, 2017, 2:06 am IST
Updated : Jan 25, 2017, 6:23 am IST

There is no way China can refer to a legally-acceded J&K to India as a ‘disputed’ territory.

The territories of independent India and Pakistan had to have the sanctity of law, and follow due process of law. (Photo: Representational Image)
 The territories of independent India and Pakistan had to have the sanctity of law, and follow due process of law. (Photo: Representational Image)

As Republic Day nears, it is worthwhile to take a look at India’s constitutional history, and perhaps clear the doubts of some who may have misgivings about India’s territory and its exercise of sovereign power. This is well established and well documented, unlike several sovereign nations that may have firepower but not the structured legal foundation to justify or defend their actions while challenging or trampling upon India’s sovereignty.

It began in the British Parliament with the draft “Indian Independence Act”, passed and placed on the statute book with amazing speed as “Indian Independence Act 1947. The bill, introduced in the House of Commons on July 4, 1947, received the royal assent July 18, 1947, in 14 days, and came into force the same day.

The Act provided that from August 15, 1947 (referred to as the “appointed date”), in place of India as defined in the Government of India Act, 1935 there would be set up “two independent dominions, to be known as India and Pakistan...” Under the Act, the Dominion of India got “the residuary territory of India excluding the provinces of Sind, Balochistan, West Punjab, East Bengal and North-Western Frontier Province and Sylhet district in Assam”.

No other territory, contiguous to Pakistan, was referred to. The striking feature is whereas Balochistan, comprising the four princely states of Las Bela, Kharan, Makran and Kalat, was categorised as part of the new state of Pakistan, being both Muslim majority and contiguous to it, no other territory, either Muslim majority or contiguous to Pakistan, was mentioned.

Thus, no “further geographical territory” could be claimed as a matter of inherent right by the Dominion of Pakistan. There was nothing left for Pakistan to make claim on any other part of any territory now legally, politically and geographically identifiable as India.

If anything had to happen, it had to be through the legal route, not through roads ridden by armed bands of looters, lashkars and loafers in Land Rovers, supported and instigated by the Pakistani state, through illegal means. The territories of independent India and Pakistan had to have the sanctity of law, and follow due process of law.

After August 15, 1947, when the princely states hurried to join either India or Pakistan in accordance with the Instrument of Accession Act, or taking their own time to follow legal routes of accession, came the blatantly illegal violent invasion from Pakistan of the princely state of Jammu and Kashmir on October 22, 1947.

Understandably, to counter this illegal act of Pakistan, the Maharaja of J&K had to act quickly and took recourse to the legal route to accede to India on October 26, 1947.

What did the ruler of J&K do to declare, and state, his authority over territory which fell under his legal and bona fide jurisdiction while signing the Instrument of Accession to India? “I, Shriman Inder Mahendar Rajrajeshwar Maharajadhiraj Shri Hari Singhji, Jammu Kashmir Naresh Tatha Tibbet adi Deshadhipati, ruler of Jammu and Kashmir state, in exercise of my sovereignty in and over my said state, do hereby execute this my Instrument of Accession...”

Should India, post-accession of J&K to New Delhi, have claimed sovereignty thereon? Has India ever made this claim? When things were legally valid, being offered by the competent authority to India through a bona fide, legal accession document? Nothing like that was to happen due to the Indian rulers’ inherent respect for the sensitivities of neighbouring countries. India’s rulers usually are too gentlemanly, hence the only accusation/criticism made against them is that traditionally they lacked aggressive instincts to go beyond what they considered their natural, bona fide boundary or frontier. Never more, but may be less. That indeed is India’s unique characteristic. That is why at least two neighbouring countries, even today, are totally unconcerned about India’s concern over its own bona fide territorial integrity and sovereignty.

From the beginning, India played fair, acknowledging for example China’s forced claim on Tibet. Unlike J&K, Tibet didn’t have any Instrument of Accession to show or fall back upon. Tibet, some non-Tibetans claim, enjoyed “suzerainty” but not “sovereignty”.

Without conceding this point on Tibet, will it be wrong to counter-question those having doubts about the integration of a sovereign J&K through legal means? Is it not a fact that while J&K voluntarily gave up sovereignty in India’s favour in October 1947, Tibet involuntarily accepted occupation by Chinese troops? Can these cases be even remotely seen as similar?

There is thus no way China can refer to a legally-acceded J&K to India as a “disputed” territory. Obversely, if J&K is “disputed” in China’s eyes, Tibet could very well be perceived as more than “disputed territory”; it could be deemed “conquered” and “trampled” land in future. If that were to happen, where would China’s “sovereign sensitivity” stand?

Seen in this perspective, it will be advisable for those who challenge Indian sovereignty over J&K to stop in their tracks and cease vitiating the peace initiatives. They must understand that geostrategically or geopolitically, whereas J&K belongs to India, China’s claim to Tibet can only be seen as a reciprocal, mirror image. Both Tibet and J&K are landlocked territories that were traditionally coveted by distant powers.

Realistically speaking, no landlocked territory in that part of geography can afford to retain or exercise its independence. Someone is bound to pounce. Pakistan used illegal means to grab a part of J&K. India got J&K through the legal route instead. China, unlike Pakistan, nevertheless succeeded in Tibet through the use of force. Today, however, both China and Pakistan should cease trampling upon India’s sovereignty over J&K under the guise of “one belt, one road”. What if threatened external powers join hand to snap, rather than shape, it?

Tags: republic day, balochistan