The Jammu and Kashmir Reorganisation Bill: A cure worse than the disease

The Jammu and Kashmir Reorganisation Bill is no panacea to the region’s multilayered problems. It has in fact added to the existing problems.

Published : Sep 12, 2019 06:00 IST

Pakistani troops patrol near the Line of Control, the de facto border between Pakistan and India, in the Chakothi sector in Pakistan Occupied Kashmir on August 29.

Pakistani troops patrol near the Line of Control, the de facto border between Pakistan and India, in the Chakothi sector in Pakistan Occupied Kashmir on August 29.

The Jammu and Kashmir Reorganisation Bill, far from being a panacea to the long-standing political issues, has created a new set of internal and external problems. In truth, both the supporters and detractors of this legislative move have missed the key nuances. First, the decision to make a State a Union Territory on security grounds does not match with recent facts. Official claims attest to this. There are fresh reports of attempted infiltration from northern Kashmir. Continuing the present scale of deployment of security forces in the Kashmir Valley with a communications shutdown in the long term is untenable.

Prime Minister Narendra Modi and Home Minister Amit Shah defended the removal of special status to the State on economic grounds, saying this would lead to more development and thus reduce the State’s political alienation. Governor Satya Pal Malik announced on August 28 that 50,000 jobs would be created in the next three months. The state sector as a source of employment is already bloated. In 2016, the total number of employees working in 27 government departments was 484,901. According to an estimate, Jammu and Kashmir had the highest monthly average unemployment rate of 15 per cent between January 2016 and July 2019.

In order to create more expansive employment opportunities, involvement of the private sector on a large scale in the new Union Territory should be a priority. The claim that the new piece of legislation would do so is premature as is evident in the postponement, because of security concerns, of the much publicised Global Investor Summit, which was scheduled to be held in October. It is highly unlikely that Indian investors, let alone global, will come to the Union Territory in an environment of high risk.

There is, in fact, very little correlation between Central aid to the former State and reduced disaffection. Similar economic packages were given by the Central government in the 1950s and 1960s under Prime Minister Bakshi Ghulam Mohammad and Chief Ministers Ghulam Mohammad Sadiq and Syed Mir Qasim. Yet this period was characterised by widespread curfews and protests. In fact, after coming to power and taking an oath under the Indian Constitution after signing the Indira-Sheikh accord in 1975 with Prime Minister Indira Gandhi, Sheikh Abdullah returned the Central subsidy on rice and defended it on account of upholding the dignity of the people of the State. He was able to retain his political popularity in the State until his death on September 8, 1982, and the State saw one of the most peaceful times in the Kashmir Valley.

Since August, arguments against the removal of the special status under Article 370 have centred on a narrative that the move would enhance Central powers over the State. A closer scrutiny reveals a more complex and complicated situation in terms of Centre-State relations within the present framework of Article 370. For instance, in some critical aspects of the Centre-State relations, facts do not correspond with the argument that the present state of Article 370 upheld the principles of federalism. As the legal scholar Faizan Mustafa argued in The Hindu (August 30, 2018), “in reality, the ‘special status’ (that) Article 370 conferred was not to J&K but to the Central government. The Centre could deny certain provisions while extending unilaterally some other amendments.” For instance, he mentions, “following the 44th Amendment, unlike in the rest of the country, national emergency in J&K could still be imposed on the grounds of ‘internal emergency’. Similarly, while for the rest of the country, freedom of speech could be curtailed only through ‘reasonable restrictions’, in J&K, it could be controlled through restrictions that ‘appropriate legislature considered reasonable’.”

During Governor’s Rule in the State, the Jammu and Kashmir constitution gave unlimited powers to the Governor, and this provision was repeatedly used to dilute the special status. In all the States of India, a government’s failure would result in President’s Rule, whereas in Jammu and Kashmir, Governor’s Rule would initially be imposed for six months. In this period, Section 92 of the Jammu and Kashmir constitution would provide legislative powers to the Governor of the State. In 1986, this enabled the Governor to extend Article 249 of the Indian Constitution to the State in order to empower Parliament to legislate even on a matter in the State List, on the strength of a Rajya Sabha resolution.

Regional tensions

The legislation comes against the backdrop of persistent regional tensions that had further aggravated in the creation of broadly two opposite political forces in the former State—those who supported abrogation and those who opposed it. It is a different reality that the new development has infused fear among the long-standing supporters of abrogation of special status as there are already demands in Jammu, including by local BJP leaders, to de facto continue the current practice of allowing only current State subjects to buy land or get local jobs. They have argued for the adoption of domicile rights as prevalent in States such as Himachal Pradesh. Also, the development hardly leads to devolution of political powers to the regions in the new Union Territory of Jammu and Kashmir, an important secularising layer of governance in the State. In its absence, the creation of the Union Territory of Jammu and Kashmir will continue to sap the energies of the new political structure to ensure regional parity, which can manifest itself in various ways.

In Ladakh, the tensions are already visible between the Buddhist-majority Leh and the Shia-majority Kargil districts. While Leh is in a celebratory mood, a different reality prevails in Kargil. There are significant minorities in both districts. Leh got its Autonomous Hill Council in 1995 when the State was under President’s Rule. Then people from Kargil opposed a collective Ladakh Council for Leh and Kargil. This was preceded by long bouts of tension between the two districts. In 2003, Chief Minister Mufti Mohammad Sayeed decided to give Kargil its own council.

In a memorandum to the Governor on August 30, 2019, Joint Action Committee Kargil Chairman Sheikh Nazir demanded that the new Union Territory be called Kargil-Leh, the rationale being that Leh had become synonymous with Ladakh.

On the other hand, the Ladakh Buddhist Association (LBA) has written to Home Minister Amit Shah seeking protection of the Buddhist community in Kargil. The letter written by LBA president P.T. Kunzang accused Sheikh Nazir of instigating communal tension in the region. Meanwhile, like the people of Jammu, the people of Leh have also demanded a check on outsiders acquiring lands and jobs in the new Union Territory.

In recent times, a new narrative has emerged which links the demand for the abrogation of special status with the plight of two categories of Dalit residents of the State who had been demanding permanent resident certificates (PRCs) for many decades. Besides Indian citizenship, owing to the special status of the State, PRCs were given to people whose ancestors had lived in the State for at least 10 years before May 14, 1954. Only those with PRCs were eligible to buy property, get employment in the State, vote in the Legislative Assembly, and become entitled to other privileges. In this connection, one is the category of refugees who came from neighbouring Sialkot district of Pakistan, also known as West Pakistan refugees, in 1947. Today, the population of the refugees, as per some estimates, has swelled to over 1,50,000.

On February 8, 2007, the Jammu and Kashmir Legislative Assembly rejected a Bill giving them the right to become citizens of the State. Speaking in the Assembly, the then State Finance, Law and Parliamentary Minister, Tariq Hamid Karra, said: “We have full Assembly sympathies for West Pakistan refugees. But the matter has to be resolved in a consensual manner as it has many dimensions.” A similar demand for PRCs was made by a section of the Dalit (Valmiki) community. Its members had come from the Gurdaspur and Amritsar areas of neighbouring Punjab province in 1957 to work as sweepers because sweepers in Jammu and Kashmir had gone on strike.

The State’s political elite underestimated the political resonance of these demands across the country. The Prime Minister made a reference to the plight of the “Valmiki community” in his speech to the nation on August 9, 2019. It was not a coincidence that Bahujan Samaj Party (BSP) president Mayawati was one of the first opposition leaders to back the Centre’s decision. She tweeted on August 6: “The demand to implement the Constitution’s ‘social, economic and political justice’ in the country by removing Article 370 and 35A was long pending. The BSP hopes the people there will get the benefits of the Central government’s decision.”

The same cavalier attitude was demonstrated by the State political elite on the issue of political reservation to the Scheduled Tribes. Political reservation to the S.Ts, which is part of the new legislation, will primarily benefit Gujjars and Bakerwals, who are cent per cent Muslim in the new Union Territory of Jammu and Kashmir.

Claim over PAJK

One of the outcomes of the reorganisation legislation is the renewed claims over the present Pakistan-controlled Jammu and Kashmir, which Pakistan refers to as “Azad Kashmir”. In the Act, 114 seats of the reorganised Jammu and Kashmir, 24 have been kept aside for areas under “Pakistan Occupied Kashmir” (PoK), or Pakistan-administered Jammu and Kashmir (PAJK). During the debate in Parliament on the resolution on the Union Territories of Jammu and Kashmir and Ladakh, Home Minister Amit Shah mentioned that the region included “Pakistan Occupied Kashmir” and that “we would be willing to sacrifice our lives for it”(that is, having it within the boundary of India). At a public event, a few days later, Defence Minister Rajnath Singh said that “in future, if talks are held with Pakistan, they will be on the issue of Pakistan Occupied Kashmir and no other issue”.

The present Line of Control forms a natural ethnic and linguistic divide between Muslim-majority Kashmir Valley and cent per cent Muslim PAJK. The PAJK is an area inhabited by a population closer to the Rajouri and Poonch areas of the Jammu division of the former State. The area is entirely non-Kashmiri speaking. The central PAJK, particularly Rawalakot inhabited by Sudhans, has a high representation in elite Pakistani institutions. For instance, Lieutenant General Shahid Aziz, who was involved in the Kargil war and colluded with General Pervez Musharraf’s overthrow of the civilian government in 1999, hails from this area. Similarly, the present President of the PAJK and former Pakistani diplomat, Sardar Masood Khan, comes from this area. He was also Pakistan’s Ambassador to China and a Permanent Representative to the United Nations.

Most of the protests on the Jammu and Kashmir issue in front of Indian diplomatic assets, particularly in the United Kingdom, is by the PAJK diaspora. During his telephonic conversation with British Prime Minister Boris Johnson on August 21, Prime Minister Narendra Modi is said to have referred to the “violence” by protesters against the High Commission of India in London during Independence Day celebrations there. Estimates by local people point out that 80 per cent of South Asian Muslims in the U.K. come from the Mirpur area of the PAJK. After the trouble in the Kashmir Valley in 1989, the insurgents had relied on the Mirpuri diaspora for material support. Some sections of the diaspora from Mirpur support the idea of independence owing to what they call the “institutional and constitutional control” of Pakistan over the PAJK.

Meanwhile, another dimension linked with the PAJK debate is the region of Gilgit and Baltistan controlled by Pakistan. Gilgit and Baltistan are closer ethnically to Kargil, which has a mosaic of distinct ethnic and religious groups from the rest of the undivided State. From 2009, Gilgit and Baltistan were de facto made a state after remaining for many years an undefined entity administered by federal bureaucrats. Apart from recognising the demand for Union Territory status by Buddhists living in Leh, the separation of Ladakh from the State mirrors what Pakistan did in 1949 by separating Gilgit and Baltistan from the Pakistan-controlled Jammu and Kashmir under the Karachi agreement. Pakistan used the Karachi agreement signed with the PAJK leadership in March 1949 to give legal cover to the de facto separation that had already existed. In 1974, Pakistan also abolished State Subject Rule in the area, and thus its nationals could buy land in the region.

International fallout

The main irritant for India internationally had been the recent informal discussion of the issue in a closed-door format at the Security Council, which resulted in no presidential statement. The ground for any discussions on an issue is whether it is a threat to peace and security, maintenance of which is the mandate of the Security Council. In practice, in intergovernmental multilateral entities such as the U.N. and its organ, the Security Council, the position of each Permanent Five member will be factored in by its own interest in the issue. At present, at least, three P-5 member states, namely China, the U.K. and the U.S., seem to be following the situation in Jammu and Kashmir for different reasons.

India’s Permanent Representative to the U.N. headquarters in New York, Syed Akbaruddin, stated that it was the “nature of the beast” that “anyone, especially parties to the dispute, can try and throw in anything for the consideration of the members of the Security Council”. Among the P-5, China has several infrastructural projects in Gilgit and Baltistan bordering Ladakh and the PAJK. The U.S. position will also be factored in by the current Pakistani leverage in its progressive Afghanistan exit strategy and it will depend on how much Pakistan is able to use that. The U.K.’s policy is influenced by domestic considerations as a large segment of its population has a Jammu and Kashmir (Pakistani-controlled) connection.

Overall, peace and normalcy in the new Union Territories and not legislative developments will be a concern of the international community. Meanwhile, in the face of developments, both within the State and internationally, policymakers have to assess whether the move was worth politically and in security terms. At some stage, for relative peace to return, politicians will have to grapple with the immediate crisis in the new Union Territories as well as long-pending challenges which the new piece of legislation has failed to address institutionally and substantially.

Luv Puri is the author of Across the LOC: Pakistan-Administered Jammu and Kashmir.He has also worked with the U.N. Department of Political Affairs on various issues.

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