New Delhi, July 24, 2019-
As Home Minister Amit Shah grapples with the Kashmir issue, looking at various options to resolve the vexatious problem, the Trump bomb has created needless consternation. Under Westphalian sovereignty system and laws, Kashmir is an internal issue of India, but due to the alleged disputed nature of the accession and Mountbatten-Nehru taking it to the United Nations, it has turned into a bilateral issue.
Unfettering the State and granting some sort of ‘autonomy’ has been one option for it frees up the regional aspirations of the two contiguous geographical blocks Ladakh and Jammu divisions as well.
Autonomy is desired not only by the Valley; Jammu and Ladakh are seeking regional autonomy within the same narrow confines of the Constitution of India. But with the Sunni-dominated Valley holding the entire State to ransom, it stands to reason that other divisions also require to be unshackled.
What constitutes this so-called ‘autonomy’ within the purview of the Indian Constitution, as well as Article 370 giving special status to the state enshrined in the same Constitution? Indian prime ministers have spoken of a construct within the confines of the same Constitution. What is the leverage possessed by the current prime minister?
Analysts reckon that the Delhi Agreement was the defining moment in the contractual relationship between India and Kashmir; the seed of doubt was planted in Sheikh Abdullah’s mind that this actually paved the way towards full integration with India and did not grant autonomy as structured in Article 370.
When one ponders over the 70-year-old Kashmir question, using documents hitherto unpublished, the journey becomes that much more interesting for one quickly understands that there are no monochromatic shades to the problem.
Amit Shah knows that he has to stamp out local militancy, shut down cross border infiltration, look at greater mobility and integration with the Indian Union and of course bring back democratic processes to the State by holding elections. If that quiver of solutions requires setting up of a Delimitation Commission, scrapping the contentious Article 35A and revisiting the abrogation of Article 370, then so be it.
For the past several decades, a succession of Indian prime ministers has engaged in a plethora of grandstanding on the issue of Kashmir. To be sure, there are those among them who have been genuine about their concern for the State-most notably, Jawaharlal Nehru, who reckoned that J&K was a ‘shop window’ for his brand of Indian secularism.
Many others have promised, but delivered nothing.
At the very kernel of the debate on Jammu & Kashmir is autonomy and its polychromatic shades, and how it could be enshrined in the Federal context in terms of contractual relations between Centre and State. After all, India is a Union of States and J&K’s accession is subject to an Instrument of Accession and a subsequent ‘special status’ accorded to it under Article 370 of the Indian Constitution. Prime ministers have sought solutions, but to no avail-the Delhi Agreement and the Sheikh Abdullah-Indira Gandhi Accord included.
Attempts to find a lasting solution to the Kashmir question have all come to naught once the situation had stabilised in the valley and “business as usual” was restored.
Recent history shows that in 1995, then Prime Minister P.V. Narasimha Rao said in Parliament, “So far as granting autonomy to the State of Jammu and Kashmir is concerned, only sky is the limit. In this context the Constitution of our country has a lot of room and short of Azadi, we are ready to give anything.”
Fast forward to 2016, as Prime Minister Narendra Modi says he is willing to architect a permanent solution within the boundaries of the Constitution.
A catalogue of delegations and interlocutors have failed to break the impasse. It was in September 2010 that a delegation landed in Kashmir after months of protest. Five leaders, including (CPI-M) leader Sitaram Yechury and Majlis-e-Ittehadul Muslimeen’s Asaduddin Owaisi, met separatist leader, Syed Ali Shah Geelani at his residence in the curfew-bound city. T.R. Baalu of the DMK, Rattan Singh Ajnala of the Shiromani Akali Dal, and Namanageshwara Rao of the (TDP) were also present in the meeting.
Geelani had reportedly said, “We will perish but won’t give up. We have decided we will not surrender in the face of blind Indian imperialism. Talks won’t be meaningful unless India accepts Kashmir as an international dispute.”
Another small group that included CPI’s Gurudas Dasgupta heard out Mirwaiz Farooq, chairman of the All Jammu and Kashmir Awami Action Committee, who is said to have spoken vehemently: “This is not a mere political dispute… India should look at it as a humanitarian issue. Sentiments in the valley are for freedom, and India ought to respect that. Sitting in Kashmir, we come to the conclusion that the people of India are so ill-informed about Kashmir… Kashmir is an internationally accepted dispute. It is time to call a spade a spade.”
The semantics employed by the two Kashmiri leaders was almost identical. In the nine years since, Kashmir has got more complicated, the Hurriyat itself finds itself marginalised as neophytes paying obeisance to the Islamic State have sprung up, taking religious Islam careening out of control to rabid fundamentalist political Islam.
The Instrument of accession: ‘Safeguard autonomy; cooperate with union’
Kashmir is now in the throes of an Islamist insurrection. The blue baby called BJP-PDP coalition has only widened the gulf between Delhi and Srinagar. As the hardliners are pushed to the margins and the ideologically driven Islamic indoctrinated terrorists take centre stage, the Indian security forces have their work cut out.
Despite all adversities, they have done a fine job of stamping out local militancy, killing both proxies and locals with all their might and firepower. A fragile peace may prevail at times, but this is only a chimera, albeit till the next popular outburst.
If Prime Minister Modi wants to make a meaningful break from the past, then he will have to lead the way in finding a transformative solution which promises mobility and integration and for that permanent residency under Article 35A needs to be pole axed.
The Instrument of Accession itself-executed in October 1947 and under which Maharaja Hari Singh handed over the State to India-had three specific clauses which remain relevant today:
Clause 3 : “I accept the matters specified in the schedule hereto as the matters with respect to which the Dominion Legislature may make laws for this State;
Clause 5: “The terms of this Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment is accepted by an instrument supplementary to this instrument”;
Clause 7: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”
# It should become clear that we are taking the position that our autonomy should be consistent with this document that is, autonomy should be in consonance with the Instrument of Accession.
It is pertinent to note that in October 1949, Drafting Committee member Gopalaswami Ayyangar said before the Constituent Assembly: “We have also agreed that the will of the people through the Instrument of the Constituent Assembly will determine the Constitution of the State as well as the sphere of Union jurisdiction over the State….You ill remember that several of these clauses provide for the concurrence of the Government of Jammu and Kashmir State.
“Now, these relate particularly to matters which are not mentioned in the Instrument of Accession, and it is one of our commitments to the people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the State for the purpose of framing its constitution. In other words, what we are committed to is that these additions are matters for the determination of the Constituent Assembly of the State.”
In 1951 when the Constituent Assembly of J&K state was convened, Sheikh Mohd. Abdullah addressed the members and said: “You are no doubt aware of the scope of our present constitutionalities with India. We are proud to have our bonds with India, the good will of whose people and Government is available to us in unstinted and abundant measure. The constitution of India has provided for a federal Union and in the distribution of sovereign powers has treated us differently from other constitutional units, with the exception of the items grouped under Defence, Foreign Affairs and Communication in the instrument of Accession.
“We have complete freedom to frame our constitution in the manner we like. In order to live and prosper as good partners in a common endeavour for the advancement of our people, I would advise that while safeguarding our autonomy to the fullest extent so as to enable us to have the liberty to build our country according to the best traditions and genius of our people, we may also by suitable constitutional arrangements with the Union establish our right to seek and compel federal co-operation and assistance in this great task, as well as offer our fullest co-operation and assistance to the Union.”
The Delhi Agreement of July 1952 was supposedly an agreement between two individuals, Sheikh Abdullah and Prime Minister Nehru. After being signed, the Delhi Agreement was debated in the Lok Sabha on July 24, 1952 by Nehru. It was then adopted. The Rajya Sabha then discussed the agreement on August 5, 1952 and approved it. On August 11, 1952, Sher-i-Kashmir presented it before the Constituent Assembly of the State, which also gave its approval. It was, clearly, backed and authorised by the legislatures of both India and Kashmir giving it a stamp of finality. The salient points of the Delhi Agreement also need to be reiterated thus:
*The decision to abolish the hereditary Dogra dynasty was accepted by New Delhi.
*The Indian Citizenship Act was made applicable to the state, but the state legislature was empowered to regulate the rights and privileges of permanent residents, specially over acquisition of immovable property and appointment to services.
*The right of state nationals who had gone to Pakistan or Pakistan-occupied Kashmir in 1947 or earlier, to return to their homes was acknowledged.
*The President of India was empowered to declare a state of emergency in case of external danger, but in case of internal disturbance the power could be exercised only at the request, or the concurrence of, the state government.
*The President of India was empowered to grant reprieve and commute death sentences.
*India’s agreement to the confiscation of jagirs without compensation shall permanently stand.
*The state was allowed its own flag, which was the flag of the National Conference party.
*The jurisdiction of the Supreme Court was extended to certain matters; and
*It was agreed that Jammu and Ladakh should have cultural and regional autonomy.
As Abdullah wrestled with the pros and cons of the concept of ‘full integration’ through the Delhi Agreement, he quickly realised that his dream of limited autonomy was slipping away. His actions thereafter belied his nationalist character and in a silent coup d’etat, Director of Intelligence Bureau, B.N. Mullick’s dramatic operation saw Abdullah being arrested in Gulmarg.
By the mid-1990s, the demand for autonomy had grown and most people agreed that if there was a solution to the problem, it was the restoration of autonomy. In a 1994 resolution, the National Conference (NC) clearly stated: “At this sensitive moment we want to remind the Government of India that the people of the State had joined Indian Union on the basis of some shared principles. The Constitution got stability when the state of J&K and the Indian Union entered into an agreement in 1952 which is commonly known as Delhi Agreement. After that, the relations got disrupted because the Union of India did not stand by its assurance which resulted in the loss of Autonomy.”
The State Autonomy Committee Report of 2000-after long hours of angry deliberation in the J&K Legislative Assembly-is itself vague on specifics. It points to the 42 constitutional application orders that were issued making Union legislation applicable to the State between 1954 and 1986, as visible evidence of an “erosion of autonomy”.
It then enters the plea that “not all of these orders can be objected to”, though “it is the principle that matters.” At the level of principle, the Central government may have found it difficult to accept that the Constituent Assembly of Jammu and Kashmir ceased to have any legal validity after Sheikh Abdullah was dismissed from his post as Wazir-e-Azam and imprisoned in 1953. It was on this account that the accord negotiated between Sheikh Abdullah and Prime Minister Indira Gandhi in 1975 laid down strict limits on the scope of constitutional review. It allowed for a review of the constitutional provisions that had been applied to Jammu and Kashmir in a modified form, but affirmed that all provisions applied “without adaptation or modification” would be “unalterable”.
The July 4, 2000 meeting of the Union Cabinet called Farooq Abdullah’s autonomy demand “unacceptable” and threw it out. Instead, the ‘Autonomy for Jammu and Kashmir and the Restructuring of Indian Federalism’ was spelt out alliteratively by Narendra Modi, the then party general secretary in-charge of Jammu and Kashmir: development, democracy, dialogue, and the use of the defence forces. Now the same Party official, Modi is the PM and has the chance to make game-changing decisions.
The following section examines some facts pertaining to Kashmir and Autonomy:
What is ‘greater autonomy’, or the Pre-1953 position? The debate in the J&K Legislature expanded on this theme:
*Congress leaders, especially Nehru, created an impression that it was essential to grant ‘Special Status’ to J&K due to its peculiar position.
· The term ‘peculiar position’ led communal elements to interpret that Congress had accepted in principle that the 51 Muslim-majority character of the State shall be maintained at all cost.
· The State was accorded ‘Special Status’ under Article 370 of the Indian Constitution with hardly any discussion in the Constituent Assembly.
· In 1952 Delhi Agreement was concluded between Nehru and Sheikh to give practical shape to the ‘Special Status’.
· Under the agreement, the State was given a separate Constitution and its own flag. The Head of the State and Government were given the nomenclature of Sadar-i-Riyasat and Wazir-i-Azam, respectively.
· The people who wished to enter the State of J&K or go out were required to seek ‘Permit’ from state authorities.
· The accession of J&K with Indian Union was accepted only in terms of three subjects, viz., Defence, Foreign Affairs and Communications.
· Under the circumstances, the Jammu and Kashmir Praja Prishad launched a movement demanding ‘Ek Pradhan, Ek Vidhan and Ek Nishan’. More than a dozen workers sacrificed their lives at Hiranagar, Jourian, Sunderbani and Ramban and thousands were arrested.
· Bharatiya Jan Sangh under Shyama Prasad Mookerjee launched a nationwide satyagrah in support of the movement. Dr. Mookerjee entered the State on May 8, 1953 without ‘Permit’. He was arrested and sent to jail at Srinagar, where he died on June 23, 1953 under mysterious circumstances.
· Sheikh Abdullah, who had succeeded in achieving maximum possible autonomy for the State, was found conspiring with American and Pakistani agents to separate J&K from the Indian Union. He was arrested on August 9, 1953, thus ending one phase of the separatist movement in J&K.
*An erosion in the State’s autonomy set in between 1953-1975 as pliant governments in Kashmir did the Centre’s bidding. During this period, 13 steps were taken systematically-sometimes surreptitiously-to extend various provisions of Indian Constitution to the J&K State. The following are some of them:
· By 1954 Presidential Order the operations of Customs, Central Excise, Civil Aviation, Post and Telegraphs were extended.
· In 1958 All India Services – IAS, IPS was introduced and the functions of Comptroller and Auditor General were extended.
· In 1959 the legislative entry relating to Census was applied, making way for the conduct of Census of 1961 under Central Law.
· In 1960 J&K was brought under the jurisdiction of the Supreme Court. The jurisdiction of Election Commission of India was extended.
· In 1964 Articles 356 and 357 of the Constitution were applied, making way for the introduction of President Rule in emergencies.
· In 1965 a number of legislative entries relating to Welfare of Labour, Trade Unions, Social Security and Social Insurance, were applied.
· In 1966 provisions related to direct elections to Lok Sabha were applied.
· Since 1953 about 337 laws were extended to Jammu and Kashmir State, including those related to Chartered Accountants Law, Coinage Act, Conservation of Foreign Exchange and Prevention of Smuggler Activities Law, Contempt of Courts Law, Customs law, Copy Right Act, Dangerous Drugs Act, and Delimitation.
· The visa-type ‘Permit System’ was abolished. (Agency)