By Hem Raj Jain,
The entry of separatist leader Sajjad Lone in 2009 Parliamentary elections has created much profound, gigantic and complicated situation for India than meets the eye.
Most of the Indians including its media are deluding themselves that Lone’s entry means victory of Indian cause in either case. Indians erroneously think that if Lone wins then Indian cause wins and if Lone looses then separatists loose, hence India still wins.
But Indians do not understand that what will happen if Lone’s pursuit of his new strategy (of which he gave a hint during his April 15 interview to a prominent Indian TV channel) leads to following in the backdrop as given below.
(1)- Lone has very shrewdly understood (especially after last Assembly elections) that people of J&K will not boycott the elections because (i)- it gives them a satisfactory State mechanism to take care of their day to day civilian needs and (ii)- in a changed post 9/11 scenario Kashmiris have no other option than to lie low on separatist movements. But at the same time Lone knows that the people of J&K (especially of Kashmir valley, comprising the majority in J&K) consider J&K as a disputed territory (a martial matter) especially when Kashmiris, as per media reports, have already lost about hundred thousand Kashmiris for Kashmir Solution (which is more than the lives lost combined by India and Pakistan for independence from British Raj).
(2)- Every Member of Parliament (MP) is required to take the oath that “I do swear in the name of God / solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law
established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter.” and every Member of Legislative Assembly (MLA) is required to take the similar oath.
(3)- But Lone may create insurmountable problem for Indian cause if he (in case he wins) while keeping other parts of oath intact does not take the oath as MP from rest of India (that “I will uphold the sovereignty and integrity of India”) and instead Lone takes qualified oath that “I will uphold the sovereignty and integrity of India which recognizes J&K as disputed territory”.
(4)- Even if Lone looses the election, his new strategy may not only instigate other MPs and MLAs from J&K (especially from Kashmir valley) to take similar qualified oath but may also change the entire campaign during ongoing Parliamentary elections where J&K elections may be
fought on the issue of this ‘qualified oath’. Here the Kashmiri contestants may not raise the dispute at the time of filing the nomination papers but after becoming MP or MLA as it will give them credence as the representatives of the people of J&K.
(5)- Obviously in such case any MP or MLA (who insist on this qualified oath) will not be entitled to enter Parliament or Legislative Assembly of J&K as MP or MLA. But here lies the entire
problem for India. These rebellious MPs & MLAs can always move the High Court of J&K and ultimately Supreme Court of India (SCI) in order to get this qualification added in the oath of MP and MLA as enshrined in the Constitution of India and its Third Schedule.
(6)- In such an eventuality it will be legally impossible for SCI to turn down the prayers of such rebellious MPs & MLAs of J&K because (i)- Not withstanding whatever de-jure written in Indian Constitution, the India State (with all its three organs of Executive, Legislative and Judiciary) has always de-facto recognized J&K as disputed territory which is evident from India agreeing to 1948 Plebiscite resolution of UN, Shimla Agreement, Peace dialogues with Pakistan, condoning by Indian authorities despite prior information of visit of some Kashmiris (separatists) to Pakistan in 2005 without proper passport – visa documents and still not punishing these guilty public servants and separatists despite criminal case in CJM Court, Patiala House New Delhi (next hearing date April 20, 2009 and this case relating to crime against State and not against person or property,
which judiciary though an organ of State is not taking with due seriousness) etc. etc.
[Here the argument that any body (form India including from J&K) who questions the territorial integrity of India (which as per India means that entire J&K including Pakistani side of Kashmir is an integral part of India) is a traitor and indulging in sedition therefore needs
to be prosecuted does not help India’s case. Because if these rebellious MPs & MLAs will be portrayed (by India) as traitor and indulging in sedition then all these before said authorities &
functionaries of Indian State who de-facto recognized J&K as disputed territory were / are also, by implication, the traitors and indulged in sedition]
(ii)- This fact will also go against India in SCI that Pakistan consistently tried militarily to retrieve the territory of J&K which Pakistan believes to be its own (in 1947, 1948, 1965, 1971, Kargil war, proxy war etc) but India never did so for retrieving Pakistani side of Kashmir. Any body who knows any thing about law knows that for possession of any territory or property, the intention to posses is a necessary condition and such intentions are always reflected in the actions of the intending possessor. But these intentions have been conspicuous by absence in case of India and against which Kashmiris have legitimate right to complain in SCI against India (which in the
interest of Kashmir solution, which is nothing but ‘Unified Kashmir’,neither takes Pakistani side of Kashmir nor part with Indian side of J&K with the result so much loss of lives, terrorism and loss of human rights have taken place in this region of SAARC).
(7)- Moreover with such a prolonged history of India’s de-facto recognition of J&K as disputed territory, to what extent international opinion will go in the favour and support of these rebellious MPs & MLAs of J&K is any body’s guess.
(8)- Further, once such petition by rebellious MPs & MLAs is taken up by SCI then it is bound to create tremendous political upheaval and fundamentalist sentiments in India and Pakistan with its attendant implications on fundamentalist terrorist activities in India & Pakistan (with its spill-over effect in Afghanistan).
(9)- It does not require a political genius to comprehend that such a scenario is bound to constrain Obama to convert his wish into will for intervention in Kashmir problem (if USA wants to protect its interest in ‘global war against terrorism’ which has so deeply involved USA militarily and politically in this theater of SAARC region).