Agenda for Kashmir-I

The time has come for a realistic, practicable solution to which New Delhi and Kashmiris must contribute.

New Delhi must recognise the depths of the alienation and the wrongs done, and Kashmiris must respond to the needs of the moment and the urges of the people.

"Even today, perhaps the best of us do not quite realise the depth of Kashmiri alienation and are unready to ponder ways and means of overcoming it."

– Prof. Hiren Mukherjee,

February 25, 1994.

EVEN 15 years later, as this writer saw for himself on a week-long visit to Kashmir, every word of this reproach rings true. There is little or no realisation in India about the depth of the alienation, nor any serious effort to understand its causes. Not surprisingly, all the cures prescribed over the years have failed dismally. They ignored the ones who matter – the people – and do not care to ask what it is that they really yearned for.

Sample these two diagnoses. "Personally, I feel that all this political talk will count for nothing if the economic situation can be dealt with. Because after all the people are concerned with only [one] thing – they want to sell their goods and to have food and salt." The other is in the same vein: "It must be remembered that the people of the Kashmir valley and roundabout, though highly gifted in many ways – in intelligence, in artisanship, etc. – are not what are called a virile people. They are soft and addicted to easy living."

The first pronouncement was made by Indira Gandhi to Prime Minister Jawaharlal Nehru from Srinagar on May 14, 1948. She added: "They say that only Sheikh Saheb is confident of winning the plebiscite.. I feel the only thing that can save Kashmir for India – and the Kashmiris – will be an influx of visitors this summer, preferably from Bombay and Ahmedabad, since those are the ones [who] bring the most" (Sonia Gandhi (ed.), Two alone, Two together; Penguin; pages. 517-18).

The second was made by Nehru in a confidential note to the Prime Minister of Jammu and Kashmir, Sheikh Abdullah, from Sonmarg on August 25, 1952. He also added: "The common people are primarily interested in a few things – an honest administration and cheap and adequate food. If they get this, then they are more or less content." He asked Kashmir’s leadership to settle the matter. "Doubts in the minds of leaders percolate to their followers and to the people generally." He remarked: "It is dangerous to make promises which cannot be fulfilled." Its irony was lost on him, evidently (Selected Works of Jawaharlal Nehru; Volume X, pages 328-329). This mindset still holds in its thrall most in the Indian establishment. It has been in a state of denial for over six decades. It is reminiscent of the viceroys who imagined that the villager was not interested in the Congress’ demand for independence. It showed, of course, the profound contempt for the people. Nehru wanted Abdullah to ratify the accession and close the matter. Abdullah knew that Kashmir could not be solved without an agreement with Pakistan.

He, the man on the spot, could not ignore the people’s views. He knew how they felt. He tried to respond to them by proposing an India-Pakistan settlement, but he was arrested less than a year later and imprisoned for 11 long years. Memory of that monstrous wrong lingers still in the Kashmiri mind. (see the writer’s article "The legacy of 1953", Frontline, August 29, 2008.) But we have learnt no lessons.

Hence Chief Minister Omar Abdullah’s reminder in Anantnag on October 28, 2009: "No doubt the liberal funding of the Central government has changed the development scenario here, but let me tell you that it is not an economic problem and it has to be adduced politically." He added: "If we want to rid the State from the shadow of the gun, we must find a permanent solution to the political problem here. We want a basic solution to the issue. The youth of Kashmir didn’t pick up the gun 21 years ago for money [but for] political reasons." All this was said at the inaugural function of the Qazigund-Anantnag rail link in the presence of Prime Minister Manmohan Singh (Kashmir Times and Greater Kashmir; October 29, 2009). In 1953, his grandfather sought precisely such a final solution acceptable to all three parties.

The entire valley observed a total shutdown on October 27, to mark the day Indian troops landed there in 1947, and on October 28, in protest against the Prime Minister’s visit. This writer noticed during a trip to Sonmarg, on October 27, that the rural areas were as affected as Srinagar. Why? Because, as the Chief Minister remarked on October 19, "the wounds are raw".
The Chief Minister is a unionist, as is Mehbooba Mufti, president of the People’s Democratic Party (PDP). This is what she told the PDP’s youth wing on November 3: "If the Kashmir issue is discussed nationally and internationally, and if the CBMs [confidence-building measures] like the opening of the roads have become a reality, it is because of the sacrifices offered by Kashmiri youth" (Rising Kashmir; November 4).

Never before was such language used by the unionists. The separatists demanded secession from the Union, azadi, whether for accession to Pakistan or for independence. The unionists demanded restoration of the autonomy stolen from them. There is increasing realisation by the former that secession is impossible. Common ground between the two is achievable today.

Everyone I met accepted that the Prime Minister sincerely desires a solution. It must be acceptable to all the three sides – India, Pakistan and the people of Jammu and Kashmir. Four limitations must be respected. India cannot concede secession. Pakistan cannot accept the Line of Control (LoC) as a solution unless something substantial is also conceded. The people cannot accept the State’s division or acquiesce in the denial of self-rule and the fundamental rights to its people.

It is pointless for anyone to demand that India should "recognise the existence of a dispute" or demand enforcement of the 60-year-old "U.N. resolutions" or a tripartite conference. India and Pakistan have been negotiating on the substance of the dispute. Pakistan itself abandoned the U.N. resolutions (December 25, 2003). And, pray, who will represent Jammu and Kashmir in the tripartite talks?

Populism or jockeying for position to brand the conciliation a "sell-out" is destructive. The people, when faced with a fair settlement, will repudiate the wreckers, and it is the people who languish in misery. The truth is that, as Prime Minister Manmohan Singh said on May 2, 2009, "General Musharraf and I had nearly reached an agreement."

Pakistan’s political crisis in March 2007 prevented a summit to settle the framework. President Musharraf uttered a cri de coeur in an interview to Aaj on May 18, 2007: "First, let us resolve the situation here, the internal issue, so that we can focus on Kashmir properly." He revealed that it was a "fairly fair" assumption that the broad outlines of a solution to the Kashmir issue had been worked out between the two countries. "We have made progress on the Kashmir dispute but we have yet to reach a conclusion." His Foreign Minister, Khurshid Mehmood Kasuri, confirmed this in New Delhi recently.

A settlement requires concessions on both sides, the President said. "And when both give up, then in both countries there is opposition and a hue and cry. Everybody says develop a consensus. Arrey bhai, how to develop a consensus?" He further revealed that the solution was "moving forward on the same lines that I’ve proposed – along the lines of demilitarisation, self-governance and joint mechanism". That is the status of the Kashmir dispute today.

THE FOUR POINTS

The four main points on which an India-Pakistan consensus exists are self-governance or self-rule for both parts of the State; the opening of the LoC so that it becomes, as the Prime Minister said on March 24, 2006, "just lines on a map"; a joint management mechanism for both parts; and demilitarisation. It does not require much imagination to visualise that this would lead to a de facto reunion of the State of Jammu and Kashmir; self-rule or maximum autonomy on both its sides; a joint mechanism which will assuredly grow over time; and demilitarisation. Manmohan Singh used a significant expression on February 25, 2006 – "real empowerment" of the people.

While this precludes secession, it gives Pakistan much more than the LoC as a boundary and it reunites Jammu and Kashmir while ensuring its self-rule.

Neither India nor Pakistan supports the idea of independence.

The four points and self-rule fit like a glove since self-rule is an integral part of those points.

ARTICLE 370

Kashmiris resent the theft of the autonomy that was guaranteed to them. Article 370 of the Constitution is the only provision of the Constitution which embodies a Centre-State accord. Kashmir negotiated its membership of the Union of India from May to October 1949 – the negotiations took place between a Central team led by Nehru and Kashmiris led by the Sheikh. The accord was altered unilaterally when its draft was moved in the Constituent Assembly on October 17, 1949, while the Sheikh was in the lobby of the House. (see the writer’s article "Article 370, law and politics", Frontline, September 29, 2000.)

On November 27, 1963, Nehru told the Lok Sabha: "It [Article 370] has been eroded, if I may use the word, and many things have been done in the past few years which have made the relationship of Kashmir with the Union of India very close. There is no doubt that Kashmir is fully integrated.. We feel that this process of gradual erosion of Article 370 is going on.. We should allow it to go on." The process began after Sheikh Abdullah’s arrest and has continued since.

Article 370 empowered the President to extend to the State provisions of the Constitution similar to those which applied to it under the Instrument of Accession in 1947 and items in the Central List which fell within the acceded subjects – defence, foreign affairs and communications. Since this was already agreed in 1947, "consultation" with the State government sufficed. But its "concurrence" was required to confer other powers on the Centre. This was an interim arrangement as N. Gopalaswami Ayyangar assured the Constituent Assembly on October 17, 1949. Even then, subsequent ratification by the State’s Constituent Assembly was a pre-requisite as Clause (2) of Article 370 makes clear. The Assembly convened on November 5, 1951, and dispersed on November 17, 1956, after adopting Jammu and Kashmir’s Constitution. The State government thus lost all authority to accord its "concurrence", the indispensable ratifying Assembly having gone. There vanished the only source for conferring more power on the Union or accepting Central institutions or other provisions of India’s Constitution. All orders made after November 17, 1956, by the President under Article 370 are palpably void.

But, as B.K. Nehru noted in his memoirs, "from 1963 to 1975 Chief Ministers of that State have been nominees of Delhi. elected by huge majorities" in "totally rigged elections" (Nice Guys Finish Second, pages 614-15). Their "concurrence" sufficed even without the Assembly. It was readily given at the Centre’s behest. Union Home Minister G.L. Nanda confidently asserted in Parliament on December 4, 1964, that Article 370 could be used as "a tunnel [sic.] in the wall" to increase Central power. Forget the metaphor; what he indicated was that this provision, designed to guarantee Kashmir’s autonomy, could be used to extinguish it.

On July 30, 1986, the President made an Order under Article 370, extending Article 249 to the State and empowering Parliament to legislate even on a matter in the State List on the strength of a mere Rajya Sabha resolution. The "concurrence" was given by the Centre’s own appointee, Governor Jagmohan. The "manipulation" was done "in a single day" against the Law Secretary’s advice and "in the absence of a Council of Ministers," a former Law Secretary, G.A. Lone, revealed (Kashmir Times, April 20, 1995).

Sheikh Saheb’s government accorded its "concurrence" to a Presidential Order (C.O. 101) of July 23, 1975, which inserted Clause (3) to Article 368 (on Parliament’s power to amend the Constitution) to read: "No law made by the Legislature of the State of Jammu and Kashmir seeking to make any change in or in the effect of any provision of the Constitution of Jammu and Kashmir, relating to (a) the appointment, powers, functions, duties, emoluments, allowances, privileges or immunities of the Governor" shall have effect unless it receives the President’s assent. This was envisaged in the Indira Gandhi-Sheikh Abdullah Accord of February 12, 1975, which embodied the "Agreed Conclusions" of Mirza Afzal Beg and G. Parthasarathi, signed on November 13, 1974. Paragraph 5 provided for that very bar.

The wreckage was complete. It had begun on June 12, 1952, when Jammu and Kashmir’s Constituent Assembly accepted the recommendation of its Basic Principles Committee, headed by Beg, that "the office of the head of state shall be elective". On July 20, in New Delhi, the Sheikh had to accept a change that made a mockery of the Assembly’s decision. It was agreed that "the head of state shall be a person recognised by the President on the recommendation of the legislature of the State".

Worse, he could be sacked any time, without cause, by the Centre – "he shall hold office during the pleasure of the President", i.e., the Government of India. Recognition by the President was right for rulers of princely States (Article 366 (22)); it was improper for an elected head of state.

Nehru explained the Delhi Agreement in the Lok Sabha on July 24. "They recommend and then it is for the President to recognise." Nehru had the veto. Article 27 of the State’s Constitution, enacted by the rump Assembly in the Sheikh’s absence, toed Delhi’s line. "The Sardar-i-Riyasat shall be the person who for the time being is recognised by the President." Only a proviso provided for his election; but Article 28 said that he shall hold office "during the pleasure of the President", i.e., the Indian government. Jammu and Kashmir’s Constitution 6th Amendment Act, 1965, discarded the joke and provided for appointment of the State’s Governor by the President. On July 23, 1975, came the bar on Jammu and Kashmir’s Assembly legislating on the Governor’s appointment. The Delhi Agreement was wrecked twice over. This Order is patently void. A Presidential Order cannot amend the State’s Constitution which, incidentally, had received his assent. Besides, no such Order after November 17, 1956, can be valid.

Read any statute for autonomy and you will find election of the autonomous region’s head of state crucial to its autonomous character; be it in South Tyrol or the Aalands. In Kashmir this is all the more necessary given the consistent record of constitutional abuse and sheer fraud. Today, in 2009, Article 370 is a total wreck. However, it contains within itself seeds for redress of the wrong. Clause (3) empowers the President to "declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications. as he may specify." A final Order to replace all previous Orders can entrench Jammu and Kashmir’s autonomy, end the President’s powers and make the revised Article 370 permanent. That is the only way to clear the mess. It can be based only on a political consensus.
-(To be concluded)