New Delhi & the Crisis in Kashmir: A Reality Check

New Delhi & the Crisis in Kashmir: A Reality Check

Chaotic political situation in Kashmir, proliferation of communal forces in Jammu & Ladakh regions is the direct fallout of arrogance of New-Delhi

Dr. Bashir Ahmad Veeri


Oct 13 2018

Jammu & Kashmir National Conference conducted two days central working committee meeting, highest decision making body of the party, comprising senior and politically experienced leaders belonging to almost every corner of the state. The meeting in which women representatives also took active part was convened in the backdrop of deteriorating situation in the state due to assault on special status through the judicial route.

National Conference, as is expected, took a bold stand of not participating in the local body elections until the Government of India makes its stand clear and defends the case of 35-A in the Supreme Court. In the higher judiciary the additional Solicitor General of India Tushar Mehta pleaded, “Since ULB’s elections have been announced & hearing of case may be deferred till election are over” & also exceeded his brief by “saying that 35/A has gender bias”.

Chaotic political situation in Kashmir, proliferation of communal forces in Jammu & Ladakh regions is the direct fallout of arrogance of New-Delhi & the about-turns by PDP after the assembly elections. Both Mufti Sahab and his daughter Ms Mufti were hoodwinked by the BJP. The deepening alienation of Kashmiri youth is the result of mishandling of the state by PDP-BJP combine. Hundreds died due to unprovoked firing on protesters in the aftermath of Burhan Wani killing and thousands were blinded and maimed. The New York Times on 28th August 2016 editorial called it as “an epidemic of “dead eyes”. For these reasons Kashmir has seen a spurt in militancy. Due to counter insurengcy operations houses are damaged and people are killed like never before. As a result, the mainstream politics is becoming irrelevant due to harsh measures adopted by New Delhi even after the imposition of governors rule. South Kashmir is virtually inaccessible for us. That is why the Core Group of National Conference, on 5th September, 2018, unanimously decided not to participate in local body elections. Dr Farooq Abdullah while briefing the press conference said, “The stand of the central government & present dispensation in J&K before the supreme court of India goes “clearly against the wishes & aspirations of the people of the state”. “It was further felt the any tinkering with article 35/A would prove disastrous not only for our state but for the entire country”. He further said, “They conveniently ignore that this provision was incorporated in the constitution after thorough discussion between the state government & GoI & was made part of the Delhi agreement 1952”.

Delhi Agreement 1952:

The J&K constituent assembly discussed & finally adopted a motion of approach on August 21st 1952 that the residuary powers of legislature vested in the centre in respect of all state other than (J&K) itself, Indian citizenship was extended to the citizens of J&K but the state legislature was given power to make laws for conferring special rights & privileges on the “state subject” in view of notifications of 1927 & 1932. State legislature was also empowered to make law for the people who had gone to Pakistan due to communal disturbance of 1947. Article 52 to 62 of constitution of India related to power of President of India were incorporated in the agreement besides agreeing for state flag having equal states with national flag of India, Sadar-i-Riyasat was to be elected by the state legislature as head of the state, discussion on fundamental rights in view of peculiar position in which state was placed, the whole chapter couldn’t be made applicable & the question remained to be determined whether the chapter on fundamental rights should form a part of state constitution or of the constitution of India as applicable to the state, supreme court was assigned appellate jurisdictions only. After great discussion on the emergency powers the Govt. of India agreed to the modification of article 352 in its application to Kashmir by the addition of following words ‘….but in regard to internal disturbance at the request or with the concurrence of state govt. … at the end of clause(1)’… where as article 356 dealing with suspension of state govt. & 360 dealing with financial emergency was agreed not to be necessary in relation to J&K. The agreement was discussed and adopted by the parliament on August 7th 1952. After the Delhi Agreement the systematic erosion of special status began with the arrest of Sheikh Mohammad Abdullah in 1953.

What were the compulsions to agree for separate constitution for J&K & Article 370/35-A thereof?

One has to understand the unique situation at the time of Indian independence Act 1947 which freed India from British control & gave birth to two new dominions. Unlike other princely states J&K was undecided and effectively an independent country from 15th August 1947 till 26th October 1947 when Maharaja of Kashmir was forced by circumstances to seek help from Govt. of India. The mass infiltration from Pakistan caused threat to the state & made Maharaja Hari Singh to execute conditional instrument of accession which as per the international legal language has status of treaty (a formally concluded & ratified agreement between states). The agreement was accepted by Governor General of India which has explicit clarity of sovereignty of state of J&K as reflected in clauses 5,7 & 8 of IoA. Clause 5 says; The terms of this my instrument of accession shall not be varied by any amendment of the act or of the Indian independence Act 1947 unless such amendment is accepted by an instrument supplementary to this instrument. Further clause7 of IOA says; “Nothing in this instrument shall be deemed to commit me in any way to acceptance of any further constitution of India as to fetter my discretion to enter into arrangements with the GoI under any such future constitution” & the clause 8 says, ”Nothing in this instrument affects the continuance of my sovereignty in & over this state or save as provided by or under this instrument the exercise or any power, authority & rights now enjoyed by me as ruler of the state or the validity of any law at present in force in the state”. Under this background & prevailing situation at that time & pendency before united nations (as initiated by UoI) it was discussed that instrument of accession shall be the basis for relationship of J&K with republic of India & any further relationship will be as per the recommendation of constituent assembly of J&K state; hence constituent assembly of J&K was elected for separate constitution of state as implied by instrument of accession.

The inference that can be drawn is that IoA is a treaty that has been concluded between J&K & India & needs to be regarded under the provision & principles of international law & as per the spirits of provision of article 131 of Indian constitution which says, ”that the supreme court shall not have any kind of jurisdiction in disputes arising out of any “treaty” agreement, covenant, engagement, sanad or any other similar instrument which came into being before the commencement of our constitution”.

Furthermore article 363 of the constitution of India bars the Jurisdiction of all courts in any dispute arising out of any agreement which was entered into or executed before the commencement of the constitution by any ruler of an Indian state to which the GoI was a party.

So any domestic agreement would not have any effect to legally alter or vary the position of J&K vis-a-vis India from that specified through IoA. Any tinkering with the law pertaining to J&K is breach of treaty obligations which has got further immunity under Vienna convection on the laws of treaties.

National conference’s core ideology revolves around article 370 & autonomy of state within union of India, however, unfortunately whatever is left is being eroded through Judicial route. In 1996, Prime Minister Narsimah Rao offered “sky as limit, short of Azadi” & promised restoration of eroded special status & when legislature of state unanimously passed the resolution with two third majority in state assembly in the year 2000, it was virtually rejected by GoI. Parallel political experiments were performed, several rounds of talks between Union Home Minister & separatists were conducted, CBMs in the shape of bus service between divided parts of Kashmir was initiated, round table conference in the shape of working groups were constituted, interlocutors were appointed & all of these attempts at the end proved a failure & time consuming exercise.

To erode the leftover of the special status, Judicial route has been adopted apparently under the patronage of present dispensation in New-Delhi. Request for deferment of case was linked to urban local body elections rather than pleading the dismissal of the petition. National Conference will not remain a silent spectator, hence decision of core group was fully endorsed by working committee.

At the end of the working committee meeting five resolutions were passed unanimously under the themes:
a) Commitment towards defending & protecting article 370, 35/A & continued afforts for restoration of autonomy of state.
b) Defeating nefarious designs of those weakening secular credentials of the state.
c) Need for uninterrupted Indo-Pak dialogue to resolve Kashmir.
d) Zero tolerance policy for human rights violations.
e) Concern at sharp rise of prices of commodities including petrol, diesel & LPG cylinders.

Dr. Bashir Ahmad Veeri is a former member of the Jammu and Kashmir Legislative Council from National Conference. Views are personal