Saturday, September 25, 2010
Last 4 months or more have brought the Kashmir question back to the forefront. Its a problem that has haunted us since the time of independence.
While I am already in the process of writing a much longer and indepth article on the Kashmir question, there are few points I am compelled to state.
The Kashmir Questions Legal and Constitutional position
Its clearly in India's favor.
The Instrument of Accession to India was signed by Maharaj Hari Singh on October 26, 1947. The copy of the Instrument of Accession signed by Kashmir and other Princely States within India has absolutely no difference.
Accordingly, the State of J&K reflected as part of India under Part B states.
Then on May 1, 1951, Yuvraj Karan Singh proclaimed formation of the Constituent Assembly. Elections were called in, Constituencies of 40000 population were ordered to be formed. On May 15, 1951 National Conference had won all the 75 seats.
On Februaray 6, 1954, the Constituent Assembly of J&K ratified the Accession of Jammu and Kashmir to India.
On February 14, 1954, The Constitution of India was applied to J&K on the basis of Article 370, giving Temporary exceptions and modification in application to J&K.
On October 17, 1956, The Constitution of Jammu and Kashmir is adopted by the State Constituent Assembly. The Part II, Clause 3 of the State Constitution States, "The State of Jammu and Kashmir is and shall be an Integral Part of Union of India.
There are two points to understand:
1. The ratification to Accession of J&K has not been subjected to Article 370 of Indian Constitution. Only application of Indian Constitution to the State of Jammu & Kashmir is subjected to Article 370. The Article however doesn't apply in instances when the integrity of territory or Sovereignty of Union of India over the State of Jammu & Kashmir is under question.
2. The Plebiscite as sought by UN had many conditions and the main was complete withdrawal of troops from Kashmir under Indian as well as Pakistani occupation. That has neither happened in the past and with increasing hostilities, its not possible in present or near future. None trusts UN's ability to maintain Status Quo either.
Therefore, in such circumstances, it is prudent to accept the verdict of the 1954 Constituent Assembly which comprised of elected people and was formed on a known clear agenda of State formation and accession to India, as the WILL of the people.
What is the debate on Article 370 about?
The Article 370 was adopted in the Indian Constitution on October 17, 1949
Article 370 allows the State and Jammu and Kashmir to accept or deny any legislation passed by Union of India. So, in other word, various laws that are applicable to Rest of India or All Indian States, may not apply to Jammu & Kashmir. This is in a way a very strong autonomous position built for Jammu & Kashmir. The Article was however meant to be temporary. This is evident from the title of the Article itself - Temporary Provisions with respect to The State of Jammu and Kashmir.
This act, however, is applicable only to matters that are not a part of the Instrument of Accession. The Instrument of Accession already includes all matters like Defence, External Affairs and Communication. By that the primary issues related to Sovereignty of India over the State of Jammu & Kashmir, has to be safeguarded by the State Assembly and Government of India reserves the right to defend its Sovereignty. This is clearly state in Article 370 Clause (b) Subclause (i).
However, the February 14, 1954 application of the Indian Constitution to the State of Jammu & Kashmir is on the basis of Article 370. In that sense it is to be seen as a retrograde step in Organic Integration of Jammu & Kashmir with the rest of India.
Jammu & Kashmir has retained the right to have its own separate constitution which is not available to any other state. And what was given as Temporary Power in Good Faith has seen an erosion on two counts.
1. The good faith seems to be absent as many important laws that apply to all other states aren't yet accepted by the State Govt.
2. The Temporary Provision is becoming more and more permanent in nature, especially with demands for even larger Autonomy.
The people situation in Kashmir is obviously the most complicated aspect. While there are many communities in Kashmir, Muslims, Hindus and Ladakhi Buddhist form the three major groups. Muslims dominate the demography.
While the Hindu population was greatly reduced in the 1947 Pakistani-Tribal attack on the state, even more damage was caused in 1989 when militants threatened to kill the entire community if they did not leave the State. Kashmiri Pandits as most of them are referred as, left the State and migrated to Jammu and other parts of India.
Slowly as the generations have passed the idea of co-existence of two communities has vanished from the young Kashmiri Mulsim population. Extremism has found place now. The continued militancy has made Kashmir the most militarized zone on earth. That also has aggravated the problem further.
However, I personally refuse to accept the 20years of existence of Armed Forces and continuation of militancy as the failure of the Army. The Government of India while sending the Army has disallowed a full-scale military style termination of Terrorists. Given a freedom the Army could have finished militancy in under one month.
The growth of terrorism into phenomenon like Al-Qaeda and Taliban etc has created complications as these foreign terrorist groups have now entered the Valley. Their presence has been reported by Army and speculated by the journalists for over two years now. The other terrorists has included Pakistanis and some local Kashmiris trained in Pakistan-Occupied Kashmir. So the population of Kashmir now includes Kashmiris, Kashmiris who resided in Pakistan Occupied Kashmir, Pakistanis, Afghanis etc.
The Separatists have received boost due to ignorant policies of the Government of India and a sense of extremism amongst Separatists that has germinated the idea of an Islamic State.
The Geo-politics of the regions hasn't helped either. While most of the issues related to Geo-politics are on the basis of analysis of certain actions only and no serious confirmed reports, it is not too far-fetched to claim that Sino-Pakistani Axis has managed to trap Americans in Afghanistan. The Taliban was a Pakistani baby and along with these militants the Pakistanis have very smartly got the American forces trapped, who are neither able to win, nor able to exit.
America needs a much larger help from Pakistani forces. Pakistanis in turn have referred to the Kashmir Problem as the reason for their inability to spare more troops. The Americans have been made to believe that if India can reduce Forces in the Valley, Pakistan will be able to spare troops for Afghan war. On this basis, even before elections started in America, current US President Barrack Hussein Obama proclaimed a larger US role in the Kashmir Affair. This has led to belief and speculation that US has created a backdoor channel between India and Pakistan with itself as an invisible mediator, forcing India to agree to granting Autonomy and reduction in Troops within Kashmir.
Somewhere in this background, in the middle of 2010, after the new National Conference-Congress Govt tookover, the protests started in Kashmir. Since the middle of 2010 there has been a continued demand for Azadi and youth have resorted to stone-pelting on the J&K Police and CRPF troops.
Incidentally, National Conference has always maintained a demand for a larger Autonomy within Indian Constitution.
The protests continued unabated, with no real steps being taken by the J&K CM Omar Abdullah. The protests spread to a very large portion within the Valley. The State Govt has demanded a larger Autonomy and removal of Armed Forces (J&K) Special Powers Act, 1990 from most of Kashmir. That is expected to bring down the Armed Forces troops within the State as the Armed Forces will refuse to operate without their legal bullet-proof in AFSPA.
It is interesting to note that both the demands of National Conference are quite similar to what Pakistan has demanded and suggested to US. The same has been speculated and believed to have been agreed to by the GoI through secret backdoor discussions. This was revealed as early as 3rd March 2010 in the Lok Sabha by seniormost leader of Bharatiya Janata Party Shri. L K Advani.
The strong and violent call for Azadi by separatists has created an unprecedented difficult situation. The crisis is actually directly threatening the Sovereignty of India over the State of Jammu and Kashmir, directly. The GoI has, however, chosen to underplay the risks involved. In fact, it has shown an eagerness to repeal or Amend AFSPA. Since, amendment to AFSPA is a difficult task, involving the entire Parliament, the repeal of the Act from certain districts in the beginning looks likely.
The threat to India's Sovereignty and the inability of the State Govt in containing the crisis demands prudence from the Government of India.
There should be a serious consideration for pressurizing the State Assembly in Jammu & Kashmir to adopt the Indian Constitution in totality. The negotiation should allow transferring of certain matters in Union List of the Constitution to the State List. This could be done for all states of India and not Jammu & Kashmir alone. On this basis, the Article 370 must be repealed unconditionally. The amendments must be made to Union and State Lists of the Constitution as per the negotiations.
With this the Constitutional Relationship with the State will move in the right direction. this will also allow the Government of India to play a larger role in the Kashmir Crisis.
The Peaceful Areas like Jammu and Ladakh must be separated first. The Territorial continuity must be ensured between the two. The Kashmir Valley could then be cleaned and a possibility of rehabilitating Kashmiri Pandits in their traditional areas must be undertaken. This will help the demographic recuperation over the years. The remaining area of the Valley must be Quarantined till restoration of Law & Order.
For many this may be a radical idea. But the situation itself is radical. Hoping for Ideal situation is unrealistic today. Its not only too far away even if GoI takes all the right steps, but is dangerous enough to spread like an epidemic. Prudence and willingness to take tough decisions must be taken.
A more detailed note is under preparation which will dwell at every aspect in greater length.