Cut & Thrust: Kashmir’s past solutions
There is no difference of opinion with respect to the accession of state of J & K with India on two main issues, i.e., the Instrument of Accession and the Delhi Agreement. The rest of the powers, including residual sovereignty, are vested with the state under Article 370. All the princely states were authorised to frame their own Constitution in their respective Constituent Assemblies. At that time only four states — namely, Saurashtra, Travancore and Cochin, Mysore and J&K — chose this option and set up their own Constituent Assemblies. Three of these States did not frame their Constitution, and only J&K formed its own Constituent Assembly and framed its Constitution, which exists to this day.
The Modi government wants to resolve Kashmir and home minister Rajnath Singh has spoken of a permanent solution which is in the works. What is this solution within the four walls of the Constitution? The “permanent solution” that PM Modi is talking about, though, is quite difficult as it means re-opening old wounds and, under the theory of elasticity, expanding the scope and size of autonomy. The boiler plates are limited in J & K’s case — the Instrument of Accession, the Delhi Agreement and Article 370. What were the dangers implied in the recommendations of “State Autonomy Committee”? Why did the Union cabinet trash it completely?
Farooq Abdullah government on January 2000 formally accepted the report of the State Autonomy Committee (SAC) tabled in the Assembly the previous year. In June the same year, the Jammu and Kashmir Legislative Assembly adopted by voice vote a resolution accepting the report of the State Autonomy Committee (SAC), recommending greater autonomy to the State. The entire Opposition staged a walkout.
One of the recommendations of the Committee is that Article 370 which has been incorporated as ‘Temporary’ be made ‘Special’ Article.
The Committee recommended that J&K’s accession with Indian Union be reverted to only three subjects, viz., defence, external affairs and communication. In all other matters, the State will remain independent.
The nomenclature of the governor and chief minister changed to sadar-i-riyasat and prime minister, respectively.
The said sadar-i-riyasat shall be elected by the state assembly, making him responsible not to the president of India but to the state assembly.
Another recommendation provided for the repeal of jurisdiction of the Supreme Court, Election Commission of India, and Comptroller and Auditor General of India.
The Committee had also recommended the deletion of Articles 12 to 35 relating to Fundamental Rights.
The report had provided for the withdrawal of Central services such as the Indian Administrative Service (IAS) and the Indian Police Service (IPS).
It provided that Articles 356 and 357 be made non-applicable to the state of J&K.
Immediately thereafter in the first week of July 2000, the Union Cabinet dismissed the state autonomy committee report recording through a tersely worded statement: The government is committed to the promotion of federal harmony by ensuring a partnership of the Centre and the states as laid down in the National Agenda for Governance of the National Democratic Alliance. The National Agenda for Governance of the NDA states in no uncertain terms that “there is a clear case for devolution of more financial and administrative powers and functions to the states.” It further says that “suitable steps will be taken to ensure harmonious Centre-state relations in the light of the recommendations of the Sarkaria Commission...” In the last two years, the government had taken several steps in this direction. The government reaffirms its commitment to continuing its endeavour to evolve a broad consensus on the implementation of steps for wide-ranging devolution of powers to the state that leads to efficiency in administration, acceleration in development and the fullest realisation of the creative potential of all sections of our people. The setting up of a commission to review the Constitution is also a step in this direction. In the above context, the cabinet finds the resolution passed by the state assembly of Jammu and Kashmir endorsing the report of the State Autonomy Committee unacceptable.The cabinet feels that the acceptance of this resolution would set the clock back and reverse the natural process of harmonising the aspirations of the people of Jammu and Kashmir with the integrity of the nation.
Most of the recommendations contained in the report of the State Autonomy Committee seek to reverse the application of constitutional provisions to the state of Jammu and Kashmir which may not only adversely affect the interests of the people of the state but would also tantamount to removal of some of the essential safeguards enshrined in our Constitution. Besides, the issue of restoring the constitutional situation in Jammu and Kashmir to its pre-1953 position had been discussed in detail by Sheikh Mohammad Abdullah with prime minister Indira Gandhi in 1974-75. It is noteworthy that the agreement signed after these negotiations had affirmed that “provisions of the Constitution of India already applied to the state of Jammu and Kashmir without adaptation or modification are unalterable.” The cabinet urges the people and the government of Jammu and Kashmir to join hands in the endeavour to address the real problems facing the state: to root out insurgency and cross- border terrorism and to ensure accelerated development. The Centre will continue to provide all possible assistance for attaining these objectives. The cabinet, therefore, decides not to accept the resolution passed by the Jammu and Kashmir Assembly on the report of the State Autonomy Committee. The government is of the firm conviction that national integration and devolution of powers to states must go together.
What would have been the state of affairs in 1989 — when Pakistan-sponsored “death by a thousand cuts” militancy had engulfed the whole Kashmir Valley — had the president of India not declared president’s rule in J&K? Furthermore, Sheikh Abdullah’s National Conference did not exactly cover itself with glory in the first flush of achieving autonomy in 1950. The following are some facts relevant to today’s examination:
The September 1951 election to the State Constituent Assembly was conducted under State’s Election Law. The NC got elected all the 75 members rejecting the nomination papers of opposition candidates.
The Kashmiri leaders have grossly misused powers they got under special status to deprive the people of Jammu and Ladakh (more than 50 per cent of the population) of their legitimate rights. These people have lived as second-class citizens for the last 70 years.
After coming to power under Indra-Sheikh accord of 1975, the NC government passed the Resettlement Bill which provides for the return of thousands of families who left J&K for Pakistan in 1947. The Supreme Court has ordered the withholding of the said bill. What would have been the fate of J & K had the jurisdiction of Supreme Court not extended to the State?
Granting autonomy to J&K has miserably failed to bring the state closer to India as is claimed by the propounders of the idea of “greater autonomy.” On the contrary, it has become a major factor in converting J&K into a breeding ground for ISI and giving rise to militant Muslim separatism.
In the 1996 Assembly election the NC obtained less than 15 per cent of the total votes. In those elections people had voted for the restoration of democracy. Moreover, it was not a referendum on greater autonomy as is claimed by NC.
Barring a few, almost all sections of Kashmiri society have expressed their opposition to NC’s demand for more autonomy. They include people of the Jammu and Ladakh regions, as well as the Gujjars, Shias, Sikhs and Kashmiri Hindus.
After coming to power in 1975, Sheikh Abdullah had also appointed a similar committee under DD Thakur, a senior NC Minister, to review various laws extended to J&K from 1953 to 1975. The DD Thakur Committee recommended that all the legislative entries made during that period are in the interest of the people of the State and thus should not be touched. Sheikh Abdullah had accepted the findings of the Committee.
The failed 4-point formula
In 2006 the world came close to witnessing the forging of what would be known as the “four-point formula” for Kashmir. Negotiated between then Indian prime minister Manmohan Singh and then Pakistani president Pervez Musharraf, the formula had sought a non-territorial solution for Kashmir. The LoC would become a line on a map that facilitated free and easy travel to Kashmir on both sides; the state would be demilitarised; both parts of the state would receive an agreed quantum of self-rule or azadi; there would be a “joint mechanism” of representatives from both parts, with no executive powers, to supervise the working of the accord and consult on matters of common interest. The solution included free trade and movement across LoC.
WikiLeaks had revealed a US embassy cable, dated April 21, 2009, where Singh had confirmed this “formula” to a visiting US delegation. Singh told the US delegation that Delhi and Islamabad had made great progress prior to February 2007, when president Musharraf ran into trouble. “We had reached an understanding in back channels,” Singh related, according to the cable. Singh went on to add that India wanted a strong, stable, peaceful, democratic Pakistan and makes no claim on “even an inch” of Pakistani territory.
It is noteworthy that this formula did not incorporate the aspirations of the Kashmiri people — including the Dogras, Kashmiri Pandits, Ladakhis, Sikhs, Christians, the Kashmiri Muslims of all hues, including Sunnis and Shias, Gujjars, Bakarwals and Pahadis. After all, the call for azadi is primarily among the Sunni Kashmiri-speaking Muslims who inhabit the Valley who continue to reject the very idea of being integrated into the Indian Union. Without this crucial input, the four-point formula obviously could not succeed.
Historian and Kashmir expert, AG Noorani, once said as he weighed in on the Singh-Mussharaf formula: “No Indian government can possibly accept Kashmir’s secession from the Union and survive; no Pakistani government can possibly accept the LoC [Line of Control] as an international boundary and survive; the Kashmiris will not acquiesce to the partition of their state or the persistent denial of self-rule and human rights.” The four-point formula seemed to have passed Noorani’s test: It did not spell Kashmir’s secession; did not make the LoC an international boundary; and reunited the state de facto while granting an agreed measure of human rights for east as well as west Kashmir.
The rest is mere urban legend.
Sandeep Bamzai