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Ram Jethmalani is a senior politician and eminent lawyer.

Reflections on Kashmir, Bhutto, Brohi

When it comes to Kashmir, our leadership has never shown the necessary ability to protect national interest.

hen rivers of blood were flowing elsewhere during Partition, not a single Hindu was killed by a Sindhi Muslim. We Hindus were compelled to leave only when external elements invaded peaceful Sindh, the cradle of Sufism. But our partings were heart rending, full of pathos and tears. It was after my brief stay in refugee camps near Bombay that I felt neither ill-will nor animosity towards Pakistan, but a lifelong conviction that unless India and Pakistan forget the sorry past and the tragedy of partition, and commit themselves to a peaceful and amicable relationship, both will perish. And economically, unless both countries share a common vested interest in each other's prosperity and in eliminating their appalling poverty, the price of partition would be a total waste without any return for Pakistan.

While India sensibly established a secular Constitution, Pakistan could not resist the installation of an Islamic polity. I have written abundantly in this newspaper about how through acts of commission and omission of all state and non-state actors of the time, Kashmir was converted into a permanent ulcer to perpetuate discord between our two countries, and sadly, it continues to remain so. But I personally believe that except for the sake of form, none in Pakistan seriously advances the thesis that India's legal title deeds to the state of Jammu and Kashmir are in any manner defective; or that the accession of J&K to India was induced either by force or by fraud. After dithering for a while, Maharaja Hari Singh voluntarily signed the Instrument of Accession with India, after Kashmir was attacked by Pakistan backed tribal raiders, and Srinagar was about to fall.

But when it comes to Kashmir, despite the wars with Pakistan, our leadership has, for some unknown reasons, never shown the necessary ability to protect national interest. When Indian forces recaptured Baramulla in 1948, and Muzaffarabad was within their grasp, Jawaharlal Nehru senselessly ordered a cease-fire, creating the stalemate which has dogged us ever since. Then he internationalised the issue by referring it to the UN, and allowed it to get mixed up with the exigencies of the cold war. As Pakistan's domestic dissensions grew, and democracy was defeated by martial law, it realised that the Kashmir dispute had become its strongest heart-lung machine for existence, and it was imperative that this must remain so.

The 1964 war with Pakistan, again over Kashmir, produced the Tashkent Declaration, in which both sides solemnly agreed not to change the status quo, and to "observe the cease-fire terms on the cease-fire line". The Tashkent Declaration was in national interest, Kashmir was off the dialogue table, and peace prevailed for a while.

The next conflict with Pakistan in 1971 was not over Kashmir, but over Bangladesh. At the end of that war, in the words of journalist-cum-politician M.J. Akbar, "Pakistan was a shattered nation, physically, emotionally, ideologically, its moral basis had crumbled and its confidence was brutally shaken. If ever India had control over the situation, it was in 1972. Such opportunities do not recur; neither do they last too long."

India was holding about 94,000 Pakistani prisoners of war in its custody, and Zulfiqar Ali Bhutto's arrogance and hubris were at an all-time low. After almost begging India for discussion on the prisoners of war issue, it was finally agreed that the meeting would be held Simla in July 1972. M.J Akbar in his book Kashmir behind the Vale, 2002, describes how Indira Gandhi acted the perfect hostess, arriving a day earlier than Bhutto, and personally inspecting the accommodation being readied for the 85-member Pakistani delegation, scolding the ageing Chief Minister Y.S. Parmar for his garish taste, taking over the entire interior décor — from fabric to flowers and furniture — commandeering shops and seamster, all to ensure that Bhutto's Oxford-Sindh tastes were suitably indulged. India's victor had downgraded herself into a county hostess.

But when it came to the final outcome, the Simla Agreement, Bhutto appears to have outwitted her. He charmed her persuasively that Pakistan could never win a war against India, that Kashmir was lost, but he could not commit that on paper. "Bharosa kijiye, trust me", Bhutto pleaded. He obviously played this particular card beautifully, and succeeded in conning the victorious Iron Lady of India completely.

The Simla Agreement makes no mention of the Tashkent Declaration, but the following two paragraphs need to be reproduced: "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 organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations."

"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."

So far, so good. However, Bhutto's deception and Indira's acquiescence were the addition in the last paragraph: "...the representatives of the two sides will meet to discuss further the modalities and arrangements for the establishment of durable peace and normalization of relations... (including) a final settlement of Jammu and Kashmir..."

Bhutto was triumphant; he boasted publicly that he had outmanoeuvred Indira Gandhi and got Kashmir back on the dialogue table. History will never forgive Mrs Gandhi for this diplomatic blunder and betrayal of the people of India. We lost whatever we had gained by the Tashkent Declaration. But what prompted Indira Gandhi to do so is a mystery that I have never been able to solve.

I have also written earlier that even the United Nations today will have nothing to do with the plebiscite demand, which some call self-determination, after more than 60 years in a completely changed context. Internationally, the Supreme Court of Canada has negated the right to secede by provinces, something the legal establishment of Pakistan would be well aware of. It is the people of India whose concurrence will be necessary for secession, and not the people living in the Kashmir. I believe that only the five-point settlement openly arrived at with the Hurriyat leaders can make Kashmir work.

Now to the contemporary. My affectionate friend, His Excellency, Abdul Basit, High Commissioner of Pakistan, did well to invite a large and representative crowd to the Pakistan Day celebration on 23 March, the day when Pakistan gave itself its first Constitution. I am taken back to some very pleasant memories of yesteryear and my ideals yearning for Indo-Pak friendship. My readers are aware that before partition, I practised in the Sindh Courts, particularly Karachi High Court, with my partner, Allahbux Brohi, a glorious product of Bombay University, a rationalist with a Masters degree in Philosophy, specialising in Buddha and Kant (unusual for a devout Muslim) and an impressive public speaker. His practice surged after partition with the migration of practically all non-Muslim lawyers from Sind, and he soon became Law Minister and member of the Constituent Assembly of Pakistan. It was on 23 March, 60 years ago, that the new Constitution of Pakistan, which he ably piloted, came into force. Brohi and I remained friends and had often discussed the provisions of the great document, the best that Pakistan has ever produced. It embodied the rational teachings of Jinnah Sahib and in many significant ways resembled our own Constitution. It is another matter that it did not last for long when Pakistan democracy was outlawed by the armed forces. I often tell my Pakistani friends that I have my fingerprints on their best Constitution ever.

Brohi himself became the leading lawyer of his century. Later, he successfully prosecuted Bhutto and secured his conviction and final execution. He was for some time appointed the High Commissioner for Pakistan in India, and our friendship was known to everyone on both sides of the border, just as my friendship with Basit is. I believe that as Pakistan's High Commissioner, Basit has a right to invite anyone to the Pakistan Day celebrations. I have personally attended, and I am happy that he invited our Minister of State, General V.K. Singh, who also attended, well with the blessings of those whose wishes he was bound to respect. He too has his freedom of speech and a right to express his reactions to the visit, though he may require a rethink about those whom he calls "separatists".

Yes, there were "separatists" in the years gone by, but most of them no longer deserve that epithet. Today, they are patriots, and I have publicly advised Mufti Saheb to include two of them in his Cabinet, to counter what sometimes appears as avoidable Pakistan intransigence, to involve them in governance, and to fortify peace and tranquility in the state. Yes, there are two persons, the elderly Syed Ali Shah Geelani and the young Yasin Malik — the former has not changed but is still my friend — that is change enough. The latter cannot attract any Kashmiri youth; every educated person prefers secular India to the rule of Hadis.

We must continue to speak with Pakistan's elected leaders. A time will come when Pakistan rediscovers its history and destiny; one day we shall succeed.

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