KASHMIR SITUATION

Jagmohan's Plea Against 'Maximum Autonomy' for Kashmir

At every turning point of Kashmir's history since October 1947, the decision-makers became a victim of their blurred vision and took the wrong direction. Now, another wrong turn is being taken. And this may prove to be the most disastrous of all.

At the moment, fatigue is setting in amongst the militants, and events could be given a favorable turn by repairing and strengthening the integrative links. But our decision-makers seem hell-bent on closing the window of opportunity and instead planting new seeds of disarray and disruption which are bound to yield, sooner or later, another thick and thorny harvest of turmoil and turbulence in Kashmir. The cycle of destroying from within what is defended by the armed forces from without is likely to be repeated once again.

It is unfortunate that neither did the Narasimha Rao Government assess nor is the Deve Gowda Government assessing the deeper implications of the expression 'maximum autonomy".

The poor understanding of the Narasimha Rao Government was evident from the statement he made on May 17, 1995 in Rajya Sabha, He said: "I can see some light at the end of the tunnel. By Azadi, the Kashmiri leaders may not mean total independence." The declaration of the United Front Government about maximum autonomy being granted to Kashmir is hardly different from this statement.

I have no doubt that, if leaders like Narasimha Rao and Deve Gowda persist with their present approach, they would cause new complications and make the future of Kashmir more uncertain and troublesome. Both of them fail to make a distinction between autonomy that leads to efficiency in administration, speed in development and fuller realization of creative potential of a community and autonomy that breeds separatism, subversion and secession and provides fillip to the forces of parochialism and chauvinism. Both of them also do not realize that it is not the absence, but the surfeit, of powers that has given rise to a number of maladies from which Kashmir is presently suffering. And these powers have been misused with impunity to set up a self-serving oligarchy which developed a vested interest to encourage pro-Pakistan and anti-India sentiments. In the process, the common Kashmiri - the deprived and deprivileged - has suffered. He, in fact, has been exploited and prevented from realizing that his interest lay in development and removal of poverty, ignorance and disease, and not in Article 370 or contrived notions of 'identity', 'personality' or ethnicity. To clear the cobwebs in the thinking of the United Front Government on the issue of maximum autonomy and for the public to have a clear picture, it is necessary to recapitulate the past development, state the current legal and constitutional position and spell out its implications on October 27, 1947, and adoption of the Indian Constitution on January 26, 1950, the Jammu and Kashmir was irrevocably brought under the territorial and constitutional jurisdiction of India. Article 1 made it a permanent part of the Indian Union. Article 370 provided for a special relationship which, to use the words of Jawaharlal Nehru, was temporary. While making a statement on the Delhi Agreement in Parliament on July 24, 1952, he said: "We all wanted to leave it in a fluid condition because of the various factors and gradually to develop the relation - legal and constitutional relations. As a result of this, a rather unusual provision was made in our Constitution".

The sum and substance of Article 370 is that in addition to Defense, Foreign Affairs and Communications, the Union parliament can make laws with regard to the items in the Union and Concurrent Lists, but only with the concurrence of the State Government.

Obviously, after accession and provision of Article 370, a working relationship had to be established between the State and the Union. The other princely states were grouped on merged in the neighboring states and their territories acquired the same constitutional status and their people the same rights as accorded to the territories and people of other states of the Indian Union. But (not) in the case of Jammu and Kashmir.

To define, in precise terms, the constitutional, legal, financial and administrative relations, a series of meetings took place between the representatives of the Union and the State. By that time, Sheikh Abdullah had started nursing ambitions of his own. He took full advantage of India's difficulty with regard to holding of a plebiscite in the State, and demanded far more powers for the State than were justified for establishing a smooth, sound and stable relationship with the Union.

After prolonged discussions, a broad consensus, loosely called the Delhi Agreement (July, 1952) was arrived at. It provided for abolition of the hereditary rulership; vesting of the residuary and 'concurrent' powers in the State; continuance of special citizenship rights for the "State subjects"; flying of a separate flag for the State with the national flag also finding a 'supremely distinct place'; and, subject to certain limitations, extension of provisions of the Indian Constitution to the State.

Immediately after the 'Delhi Agreement", Sheikh Abdullah proceed to abolish the institution of hereditary Maharaja and got the necessary resolution passed in the State Constituent Assembly on August 21, 1952.

Unless accompanied by sincere and earnest intentions, agreements, treaties and conventions are hardly anything but mere scrap of papers immediately. But with regard to items which made for the greater integration of the State with the Union, he started stalling implementation by referring these items to some sub-committees of the State Constituent Assembly or the other. He thus created a state of uncertainty. His tactics upset even Nehru. On August 6 and 7, 1952, Nehru wrote two letters to Sheikh Abdullah in which he expressed his deep disappointment. In utter exasperation, he again wrote to Sheikh Abdullah on June 28, 1953: "To me it has been a major surprise that settlement arrived at between us should be by-passed or repudiated. That strikes at the root of all confidence. My honor is bound up with my word".

Those who are presently talking about the alleged violation of the 'Delhi Agreement or demanding restoration of pre-1952/1953 status ignore not only the practical aspect of establishing a working relationship between the state and the Union but also suppress developments that followed this 'Agreement"

It must have been clear to a leader of Sheikh Abdullah's intelligence that these arrangements could not, in any way, undermine the 'identity' or 'personality' of Kashmir. But he was actuated by different considerations. The bogey of 'identity' or 'personality' or 'independence of Kashmir' was made merely a cover for his own ends of power. The truth is that by the beginning of 1948, Sheikh Abdullah had become over-ambitious. And he started thinking and working for a sort of Sheikhdom under his hegemony. In acquiring this frame of mind, Sheikh Abdullah was encouraged by the Anglo- American block.

The process of giving a concrete shape to the Delhi Agreement was set in motion by the promulgation of the Constitution (Application to Jammu and Kashmir) Order, 1954, by the President of India. This Order was amended from time to time, extending a few provisions of the Indian Constitution to the State. Financial integration was affected through the 1954 Presidential Order, and the jurisdiction of customs, central excise, post and telegraph and civil aviation were extended. The jurisdiction of Comptroller and Auditor-General was extended in 1958. In 1959, the legislative entry relating to the Census was applied. In 1960, the Supreme Court was given powers to entertain 'special leave to appeal' from the decision of the J&K High Court. The supervisory role of the Election Commission of India was also allowed, though the elections continued to be held under the laws of the State. Articles 356 and 357 of the Indian Constitution were extended in 1964 and some Central labor laws in 1965. In 1968, Entry 72 of the Union List, which provides for appeals to the Supreme Court from the decisions of the High Court on election petitions, was extended.

The nomenclature, status, functions and mode of appointment of Sadar-e-Riyasat and the Prime Minister of Jammu and Kashmir were (changed) in 1966 by the State Legislature itself by way of amendment of the Jammu and Kashmir Constitution.

What is wrong with these modifications? In what way do they harm the interest of the common Kashmiri or undermine his identity, his religion, his culture, his language or any other aspiration? The truth is that the bogey that was raised by Sheikh Abdullah about erosion of Kashmir's autonomy was nothing but a ruse to exploit the constitutional ignorance of the common Kashmiri and to present himself to the people as a champion of their cause.

There is still a vast area which remains under the exclusive jurisdiction of the State Government. It includes a substantial portion of the Concurrent List and also residuary powers. The citizens of India are not ipso facto the citizens of Jammu and Kashmir. Even if they have been residing in the State for years, they cannot acquire right of settlement and hold property in the State. They have no right to vote in the election to the State Assembly or the local bodies or the panchayats. What is worse, a woman citizen of J&K loses her property and other rights if she marries a non-State subject. No declaration of financial emergency can be made with regard to J&K as Article 360 of the Indian Constitution has not been applied to it. Article 365, which authorizes. the President of India to issue directions to the State Government, in exercise of the executive powers of the Union, has not also been extended to J&K. Article 352, too, has only limited application.

After the Bangladesh was... negotiations took place between the representatives of Sheikh Abdullah and Mrs. Indira Gandhi. As a result, thereof, what is known as Kashmir Accord was signed in February, 1975.

In essence, the Kashmir Accord did not change the constitutional relationship between the Union and the State. It was primarily a device to bring Sheikh Abdullah. back to power and also give an impression that certain aspects relating to autonomy could be reviewed.

Neither the Government of Sheikh Abdullah nor that of Dr. Farooq Abdullah could formulate, in concrete terms, any proposal and send the same to the Government of India, with regard to withdrawal of any law or provision of the Indian Constitution which had been extended to the State during the period August, 1953 to February, 1975.

Those who demand pre-1952/1953 status or advocate maximum autonomy for J&K suppress the fact that, in the absence of full financial integration with the Union, J&K would have no resource at all for development. It is the Union finances that provide the entire funds for the State's five-year Plans and also for a substantial part of the non-Plan expenditure. According to the Reserve Bank bulletin (December, 1995; Appendix I & II), per capital Central assistance for 1994-95 was Rs. 3010 for J&K, as against Rs. 190 for Bihar, Rs. 305 for Tamil Nadu, Rs. 385 for Rajasthan and Rs. 341 for UP. In case of J&K, 90 per cent of this assistance is in the shape of grants and 10 per cent as loans; while for the four State mentioned above, it is 30% grants and 70 loans. Likewise, per capita non-Plan grants for J&K in the same year comes to Rs. 720 while it is Rs. 72 for Bihar, Rs. 23 for Tamil Nadu, Rs. 81 for Rajasthan and Rs. 23 for UP. All this shows the tremendous gains that have flowed to the J&K State from the financial link with the Union. What will happen if this link is now ended? Who will fill in the gap? Will it not be the United States and the other Western powers? And will it not place Kashmir virtually in their hands?

Take, likewise, another example - extension of Article 356 of the Constitution which... if there is a breakdown of the constitutional machinery in the State or if the State refuses to comply with any direction concerning Defense, Foreign Affairs or Communications, what will happen in the absence of President's powers under Article 356?

Kashmir could enact Islamic civil and criminal laws and even set up Shariat courts, on the same lines as has been done in Pakistan, and make it virtually a theocratic entity. Would not such a scenario do violence to the very preamble of our Constitution and also amount to secularism financing theocracy and that, too, propelled by forces of bigotry and fundamentalism?

The problem of J&K has not been insufficiency but surfeit of powers. It is not in the erosion of autonomy but in the erosion of earnestness and sincerity that the seeds of troubles of Kashmir are embedded. A great many instruments of power available to the State leaders have been used less in the service of the State than in the service of the self.

These crucial questions that need to be asked of the singers of the autonomy ode. The advocates of more -autonomy or of pre-1952/53 position are misleading the people, planting untenable and unworkable notions on their minds and arousing false and dangerous hopes. They are, wittingly or unwittingly, strengthening those forces which have been working, both beneath and above the surface from 1948 onwards, for securing secession and establishing "Sheikdom' in Kashmir in one form or the other. For what is implied by 'more autonomy' today will mean 'independence' tomorrow. Such a development would have serious repercussions and ultimately lead to Balkanization of India with all its bloody and tumultuous consequences.

It is, indeed, tragic that to serve their ends of power quite a few of our leaders are confusing the people, dividing them and indirectly facilitating the task of those who want to see a torn and tormented India, an India that is continuously at war with itself.

(Source: The Hindustan Times, 14-16 August, 1996)

J&K: Parliamentary Election, 1996

(Source: The Salook, July, 1996)      

S.S. Banyal on Election in Kashmir

While dealing with Kashmir, the powers that be the Centre had placed their political interest above everything else and had taken decisions which were subservient to their political thinking and interests. This had resulted in further alienation of the Kashmir masses.

The United Front Government has not been able the come out of this malaise and has tried to placate the people of Kashmir on the eve of Assembly election by offering financial sops. What is most desirable is an emotional rapport with the people of Kashmir who have come to believe that they are not part of India and therefore, they need special treatment.

The question of autonomy which the National Conference has been raising from time to time was never given a serious consideration by the Centre and even now the Prime Minister has said that this question would be addressed only after a new State Assembly has been constituted. This has put the National Conference in an embarrassing position whether or not to participate in the elections. And any election which is held without the National Conference being a participant would not have legitimacy whatever the perceptions of the leaders at the Centre. Rather than persuading the National Conference to participate in the elections covert efforts are being at the behest of the Congress party to create a situation in which the National Conference boycotts the election.

Once the National Conference (NC) decides to participate in the Assembly election, not only the legitimacy of the election would be restored but the possibility of a genuine election would be much higher. Peace if ever returned to the Valley, has to be with the consent of the militant outfits and the NC.

The Janata Dal is a new phenomenon in Kashmir. How that Mufti has decided to quit this party, it is bound to wipe out in due course. Mr. Maqbool Dar, the new leader of the party from Kashmir, has spent a long time in the Congress. Ultimately the JD will not hold for long in the Valley as there is not much acceptability. Credit, however, goes to be UF Government for breaking the visited the State, he has taken considerable interest in deadlock in Kashmir. Not only the Prime Minister has finding out a way to solve the Kashmir problem.

(Source: The Hindustan Times, 5 August, 1996)