Agenda for Kashmir

JAWAHARLAL NEHRU WITH Sheikh Abdullah. Article 370 is the only provision of the Constitution that embodies 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.-

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 Kashmirs 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 peoples 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 writers article The legacy of 1953, Frontline, August 29, 2008.) But we have learnt no lessons.

Hence Chief Minister Omar Abdullahs 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 didnt 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 Ministers 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 Peoples Democratic Party (PDP). This is what she told the PDPs 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 States 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.

Pakistans 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 Ive proposed along the lines of demilitarisation, self-governance and joint mechanism. That is the status of the Kashmir dispute today.

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.

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 writers 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 Abdullahs 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 States 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 Kashmirs 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 Indias 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 Centres 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 Kashmirs 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 Centres own appointee, Governor Jagmohan. The manipulation was done in a single day against the Law Secretarys advice and in the absence of a Council of Ministers, a former Law Secretary, G.A. Lone, revealed (Kashmir Times, April 20, 1995).

Sheikh Sahebs government accorded its concurrence to a Presidential Order (C.O. 101) of July 23, 1975, which inserted Clause (3) to Article 368 (on Parliaments 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 Presidents 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 Kashmirs 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 Assemblys 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 States Constitution, enacted by the rump Assembly in the Sheikhs absence, toed Delhis 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 Kashmirs Constitution 6th Amendment Act, 1965, discarded the joke and provided for appointment of the States Governor by the President. On July 23, 1975, came the bar on Jammu and Kashmirs Assembly legislating on the Governors appointment. The Delhi Agreement was wrecked twice over. This Order is patently void. A Presidential Order cannot amend the States 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 regions 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 Kashmirs autonomy, end the Presidents 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.

The feeling is widespread that no government can come to power in the State except with the Centres approval. Former Deputy Chief Minister Muzaffar Hussain Baigh said as much to N.N. Vohra on May 2, 2003. On November 1, 2009, he said: New Delhi decides about every dispensation here. Last time Dr Farooq Abdullah met me at the airport and said N.C. [National Conference] will come to power this time as the PDP is talking about demilitarisation (Rising Kashmir, November 2).

Central control over Kashmir is ensured constitutionally, politically and administratively. The Congress and Jammu ensure political control and compel coalition government. The valley has 46 seats, Jammu 36, and Ladakh four in an Assembly of 87 members. In the valley the PDPs vote is larger than that of the N.C.s, the Congress counting for little. In Jammu, the Congress, the BJP and the N.C. wield influence. The PDP has 21 seats and the N.C. 28, including eight from Jammu. The Congress has 17 seats and the BJP 12.

Administratively, the State suffers as much as it did in 1953 when the Sheikh complained of discrimination against Kashmiris in Central offices in Kashmir itself. Conveyor, a newly launched monthly published from Srinagar, carried detailed statistics in the issue of November 2009. Of 96 Indian Administrative Service (IAS) officers, only 23 are Kashmiri Muslims; only six of the 15 Deputy Inspectors General (DIGs) and 26 of the 87 Senior Superintendents of Police (SSPs) are Muslim as are only 33 out of 111 Indian Police Service (IPS) officers. Since 1947 only eight of the 24 Chief Secretaries have been Muslims. Article 312 of the Constitution empowers Parliament to create all-India services for the Union and the States also if so authorised by a Rajya Sabha resolution. It was applied to Jammu and Kashmir on February 26, 1958. So later was the All-India Services Act, 1951. Kashmiris rightly demand that it be rolled back.

As if these were not enough, the Army and other security forces do their own bit to fuel the alienation. On a trip to Handwara, I saw Army personnel perched on house-tops. The local people complain that they enter homes at will and make themselves comfortable. Cancellation of the Services cricket teams trip to Srinagar for the Ranji Trophy match offended the people. It is the mindset that matters.

In July 1995, this writer was treated to a harangue in Srinagar by Lt. Gen. J.R. Mukherjee, GOC-in-C, 15 Corps, on the theme that Kashmiris were in a minority in the valley, an idea he later propounded in The Statesman. Ergo, their demands are irrelevant. But the cake goes to the GOC-in-C of the Northern Command, Lt. Gen. B.S. Jaiswal, for his remarks at Udhampur on October 31. The forces would remain, he said, till the threat of re-emergence of militants is totally eliminated, adding, My orders to the troops are not only fight insurgents but also insurgency because that is the root cause of the whole trouble.

The analysis is brilliant. The conclusion is menacing. The insurgent who uses violence can be fought with force, but force is no solution to insurgency, the popular outlook that sustains the insurgent. All doubt was dispelled by his remark that while the violence was on the decline since 2006, with 36 incidents as compared with 276 in 2006, the agitational terrorism was a cause for worry. What message does this send to the troops but that even the peaceful agitator is a terrorist? (Rising Kashmir, November 1).

Peaceful agitations, even religious processions, are suppressed. The media are vibrant. As well as Conveyor, a new weekly, Kashmir Life, entered the field recently. Both carry only documented exposes. Kashmir Life (November 7) carried an excellent report on the havoc caused by the ban on pre-paid mobile phones. The academia is in a pathetic shape. On the once-respected Kashmir University was foisted for political reasons as its Vice-Chancellor Riyaz Punjabi, with slender academic credentials. On July 14, 2009, he banned the student union after the Shopian outrage. There is no scope for political activity on the university campus. Conveyor noted that he does not have any qualms about inviting pro-Indian political leaders from the State and New Delhi to pontificate about most inane issues. Its not just the V-C of K.U., but in the same State in Jammu University RSS [Rashtriya Swayamsewak Sangh] shakhas operate and the RSS chief and other fascist potentates are allowed to hold their meetings. Lest we forget, a university is supposed to encourage critical thinking, free debate and discussion. Not curb or gag them. But Kashmir is unique (October 2009).

But what are the Hurriyat leaders doing to redress this situation? Their cry for boycott of the elections helped the N.C. to bag the few seats in Srinagar district which were enough for it to drum up a coalition. The PDP was lenient towards them. The N.C. government of Omar Abdullah has been repressive, especially towards Syed Ali Shah Geelani.

Consider this case. Struck by his articles in Chattan, an intrepid Urdu weekly, I made it a point to meet Engineer Sheikh Abdul Rasheed. He spurned promotion as Deputy General Manager in J & K Projects Construction Corporation and resigned to stand for election to the State Assembly. As an independent member of the Legislative Assembly from Langate in Kupwara district, he is the scourge of the local administration. Since 1993 he has been exposing excesses by the security forces as well as the militants. A notable victory was won on July 9, 2009, after he led a night-long demonstration of hundreds before a police station in protest against excesses by an army official. The Deputy Commissioner gave written promises of redress, which included the reopening of a road that had remained shut to the people for 20 years, plus disciplinary action against the offender. Torture neither deferred nor embittered him. As well as active social work, he pleads in the Assembly for resolution of the Kashmir dispute, maintaining that mere economic packages offer no solution. What would have been the character of the State Assembly if the Hurriyat had contested the elections?

Mirwaiz Umar Farooq said on March 20, 2007: The Hurriyat Conference will soon strengthen its public contact programme to make people aware of the four-point formula of President Musharraf. In an interview to Kavita Suri published in The Statesman on October 10, 2002, he said: An autonomous region with the other side being a party to it could address the issue in such a way that India can sort of live with that; Pakistan can also live with that too, and Kashmiris can also get something they have been aspiring for. So we should be ready to discuss all the options and, as I have said earlier, autonomous identity for Kashmir could be the solution.

How is this different from the PDPs demand for self-rule or the N.C.s for greater autonomy? His colleague, Prof. Abdul Ghani Bhat, said at a seminar in New Delhi on November 7: Pakistan wants all Kashmiris to put their heads together. This includes the PDP, the N.C., the JKLF and even Geelani.

On the same day and at the same forum, Mehbooba Mufti said the differences with the separatists had blurred and a fair amount of consensus had emerged. Kashmiris can help a lot with concrete proposals; for example, to render the LoC irrelevant; just lines on a map as Manmohan Singh said on March 24, 2006; to make the proposed joint mechanism real and effective; and to provide for a Consultative Assembly of MLAs from both parts, which meets twice every year, alternately in both capitals.

New Delhi will not be able to resist a demand made unitedly by the N.C., the PDP, the Mirwaiz and his colleagues. One hopes that in this effort leaders like Yaseen Malik and Shabbir Shah will also join. If Kashmiris do not unite, New Delhi will be able to impose its own terms, playing off one faction against another as it has always done since 1948 by enticing the likes of Bakshi, Sadiq and company.

On November 3 the N.C.s president and Union Minister, Farooq Abdullah, said: There has to be consensus among us on certain points to formulate a joint document which can be projected before New Delhi for a viable solution to the Kashmir issue. All political parties have to put their heads together to formulate the joint document (Rising Kashmir, November 4). This writer proposes a draft for such an exercise (see box). It can be improved, of course.

The Mirwaizs proposal to talk to India and next to Pakistan misses the point that Pakistan has all but settled with India. It cannot confer self-rule on Kashmir. Only India can and India is in earnest about it. It would be folly to miss this opportunity.

Union Home Minister P. Chidambaram said in Jammu: The Prime Minister has given me the task of finding a solution to the J&K problem. We cannot afford to pass on this issue to generations ahead. He has rightly opted for quiet diplomacy with all the political groups in Kashmir.Well build a consensus, which would then be made public (October 14).

He outlined, on October 30, a business-like procedure. Talks will be held one-on-one or with two or three to discover the contours of the proposals of each group. He amplified: Then we can perhaps put down on paper what is the outline of the package. He would visit Srinagar once every six weeks to review the progress on the Prime Ministers reconstruction package; presumably also on the progress in his interlocutors soundings. No previous government had shown such seriousness.

The Prime Minister means business and so does the Home Minister. Is this effort to go up in smoke by erecting a Tower of Babel in Srinagar? A cacophony of conflicting and irresponsible voices with charges of sell-out, leaving the field exclusively to India and Pakistan to settle?

Then time is surely come for a realistic, practicable agenda to which both must contribute: New Delhi, by recognising the depths of the alienation and the wrongs done, and Kashmiris by responding to the needs of the moment and the urges of the people.

An Agenda for Kashmir must comprise the following:

1. Accord on the quantum of self-rule, safeguards against violation, and the status of the head of state. If Indonesia can concede to Aceh, in 2005, autonomy in all respects save defence, foreign affairs, national security, plus the right to seek foreign loans, its own flag, a crest and a hymn, India must not be niggardly, oblivious of its own past record.

2. Freedom of movement across the Line of Control; end to the barter trade and implementation of the eminently sensible proposals made by Haseeb A. Drabu, Chairman & CEO of J&K Bank.

3. Replacement of the bus travel arrangement with the rahdari permit of old.

4. Restoration of civil liberties, including the right to assemble peaceably without arms.

5. Speeding up of the Armys restoration of lands it has occupied.

6. Repeal of draconian laws like the Armed Forces Special Powers Act and the Disturbed Areas Act.

7. Release of political prisoners.

8. Ensuring zero tolerance of human rights abuses.

9. Promotion of cultural and academic exchanges across the LoC.

Mehbooba Muftis memorandum to the Prime Minister in Srinagar on October 28 lists a host of matters such as reunion of divided families and opening of roads. However, no CBM or economic package will be of any avail unless New Delhi is prepared to bite the bullet. And Kashmiris unitedly assist it in doing so and bite the bullet themselves.