The Kautilyan Perspective
Constitutionally Recognized Separatism
By U. Mahesh Prabhu
During the time of India's partition, in the year 1947, all the states of the subcontinent were given the rights, under the Indian Independence Act, to accede either to India or Pakistan. Displaying his grand statesmanship the then Indian Union Home Minister, Sardar Patel, succeeded in merging 565 princely states with the Indian Union. As a result of obstinacy and rigidity of Hyderabad and Junagarh, Sardar Patel merged them by employing military means.
But the issue of Jammu & Kashmir was retained by Pt. Jawaharlal Nehru. His national outlook and his capacity to take decision were eclipsed by his affection for Sheikh Abdullah and his animosity with Maharaja Hari Singh and his ingrained Kashmiriyat. This personal ego, of Nehru, is the reason because of which India is loosing, though unconsciously, the state of Kashmir, today.
Jenab Sheikh Mohammad Abdullah was the Prime Minister, and not the Chief Minister of the state of Jammu and Kashmir. The state was governed by its own constitution and not by the Constitution of India. The National Conference flag was the state flag and NOT the tricolour. The Indians needed a 'permit' for visiting Jammu and Kashmir. There were several other such separatist concessions and customs which Nehru offered, as his gift, in connection with the delight on Sheikh becoming the 'sultan of the state'. And yet, Sheikh was not pleased.
There was one special reason behind this dissatisfaction of Sheikh Abdullah despite having the blessings from the Prime Minister of India, support of the UN Security Council and Pakistan. He had 'fears' that Hindus of India may come and settle in the state. He had fears that Kashmiri Muslims may be swept by the national mainstream. He had fears that Kashmir may be recognized on the basis of its ancient culture, Kashmir may be amalgamated like other states in India, after Nehru. Such fear would spoil his sleep.
Thus, in order to realize his dream of total independence for Kashmir, it was necessary to keep Jammu and Kashmir away from India permanently. He needed an instrument through which he could protect the seed; he himself had sown, of separatism in Kashmir. He again took Nehru for a ride and brought him under the clutches of his schemes. By incorporating Article 370 in the Constitution of India, Nehru offered him that instrument.
Article 370 of the Constitution gave constitutional validity to Abdullah's separatist ideas and international intrigues and gave a special position to the state of Jammu and Kashmir. Its stamp 'confirmed', to many, the fact that 'Muslim majority cannot remain with India.'
This Article 370 of the Constitution, which has grouped Jammu & Kashmir as a special and different state, actually ridicules this declaration that Kashmir is an inseparable part of India. This special status delinks the state from rest of the country. It won't be an exaggeration if it is called 'constitutionally recognized separatism'.
Is accession of Jammu & Kashmir complete like other states? If the accession is complete then why is this special appeasement? Is it so because there is Muslim majority? Had there been a Hindu majority in the Kashmir valley, would there have been this clause of the Constitution?
It's a fact that Maharaja Hari Singh signed the accession papers on October 26, 1947 under which the state acceded to India. The accession of J&K with India was carried out on the same patter as other states acceded to it. But as a result of the misfortune of the country, Nehru pressurized the Maharaja for handing over power to Sheikh Abdullah. The Maharaja gulped with bitter draught and exhibited his patriotism. The misfortune does not end here. On the request of Sheikh Abdullah it was decided that the State Assembly will take the final decision on the accession and it was done to appease the Muslim society in Kashmir. From here the State was given the special status. The question arose as to what should be done till the Assembly took the final decision? For this period Article 370 was incorporated in the Constitution as a 'temporary measure'. But even when the State Assembly ratified the state's accession to India, the Article was not scrapped. Could there be another bigger instance of treachery than the interest of the vote bank and the politics of appeasement than this? I truly wonder.
With the blindfold of political interest we lent permanency to the temporary character of the Article making our position not only ridiculous before the world but also provided a golden opportunity and solid base for separatist-oriented terrorism to grow in Kashmir. The most shameful part is that we are not ready even now to throw off the soiled blindfold. Instead, it seems as if, we are keen to keep this blindfold as a permanent failure.
It is because of this Article that the Government of India cannot enforce any law connected with Jammu and Kashmir without the approval or concurrence of the State Government. Only defence, external affairs and communications fall in the Central's list. The Parliament has the powers to frame laws for rest of the states in the country. But Article 370 of the Constitution restricts the hands of the Union Government and the Parliament in doing this in case of Jammu and Kashmir. Its dangerous consequence has been witnessed in the past decades, when the law prohibiting misuse of religious places could not be extended to Jammu and Kashmir, with the result the state does not come within the ambit of secularism. And even after the independence the ignoble thing happened in Kashmir when hundreds of temples were destroyed and where people belonging to a particular community were victimised and subjected to cruelties. On the question of Ayodhya and the consequent Babri Masjid episode the Union Home Ministry had been issuing threats to the Uttar Pradesh Government and ultimately the Government was dismissed under the Article 356 of the constitution but this article cannot be implemented directly in Jammu and Kashmir.
There is only one system of citizenship for the people of India but in case of J&K, its dual citizenship, one of the state and the other of India. The citizens of J&K are citizens of India but the citizens of the rest of India cannot be citizens of J&K. If a girl belonging to J&K marries a boy from outside the state, who is not a state subject, she looses all her rights in the state. Even wealth tax cannot be imposed in the state. The Urban Land Act, 1976, which is in force in the entire country is not applicable to J&K. The result of this is that rich landlords, belonging to the majority community in the Valley, indulge in economic exploitation of the poor and the Indian citizens, who are non-state subjects and living in the valley, cannot even secure loans from the financial institutions.
It is quiet evident that Article 370 has not integrated J&K with India but it has delinked it. There in Kashmir is no place for secularism and nationalism in the mind of youth. The feelings of regionalism, communalism and separatism have developed in their mind. Instead of coming closer to the national mainstream, they have distanced themselves from it and have now started raking up the question of independence.
The ongoing row over the land transfer to Amarnath Shrine Board, too, is just a small consequence of this historical blunder, of including article 370 in the Indian Constitution. I am unable to understand why is it that Hindus cannot be allowed to have lands allotted for their religious purposes in Kashmir, when Muslims can have thousands of mosques anywhere in this country?
U Mahesh Prabhu
'We didn't anticipate such a reaction from Jammu'
Aasha Khosa in New Delhi | August 10, 2008 | 21:55 IST
It was the timing of the land allotment for the Amarnath yatra that led to the present crisis in the state, Ghulam Nabi Azad, former J&K chief minister, tells Aasha Khosa.
To put it bluntly, you politicians have created a mess in Jammu & Kashmir.
Frankly, no politician would like to create a situation as it is today. What led to the present crisis was an action taken by my government in good faith. Nobody realised then that things would come to such a stage. I feel that had it not been for the coming elections in the state, the cabinet decision (to allot land to the Amarnath shrine board) would not have been even noticed. It was the timing of the decision that resulted in a bad situation.
Looking back, don't you feel that it was lack of understanding of the ground situation on your part?
I feel the decision of the cabinet was a routine one. The land was sought in good faith and it was sanctioned in the same spirit. In fact, all over the country, during the last five-six years, transfer of forest or government land for infrastructure projects has become a routine administrative exercise. There is not much need to be cautious about it. On that day too, there were four to five other land transfer cases and I didn't feel anything was amiss in this particular case.
It has become a blame game between you and the PDP, when till recently, you were allies. Why?
The fact is that it was Mufti Mohammad Sayeed's government that first transferred 40 hectares to the shrine board in 2005. The order was cancelled after three months as it was felt that proper procedure was not followed. Neither the separatists nor the political parties raised a finger then.
Now, before the PDP pulled out from my government on this issue, the separatists started the propaganda that the land was being allotted permanently to the shrine board. They said India had plans to set up multi-storied apartments and fancy buildings on this land, where NRI would be settled, and it would change the demography of Kashmir in five years.
The PDP suddenly thought why not encash this emotive issue. Mehbooba Mufti had her eyes fixed on the coming elections and she thought such a stand would get her votes.
Your detractors are saying that things came to such a pass because you did not have enough administrative experience and political understanding.
I know that behind these detractors are nobody but PDP leaders. Mehbooba Mufti feels her rhetoric will mislead the people on this. She is too inexperienced to realise that all government orders and decisions are in files and in black and white. I have exposed her duplicity as I circulated a white paper on the role of the PDP in the (land) transfer order.
It was the forest minister, belonging to the PDP, who had been diligently working on the proposal for three years. It is he who sent the proposal to the central empowered committee of the Supreme Court for clearance. Then, the deputy chief minister, also from the PDP, who was also my law minister, okayed it on legal grounds.
The two PDP ministers, in fact, defended their decisions at two separate press conferences before Mehbooba Mufti landed up in Srinagar from London and asked them to shut up.
It is convenient to blame the PDP while you, being the chief minister, also could not defend your decision
Where was the time? The PDP gave a deadline of June 30 for withdrawal of support. On June 28, I held meetings with all PDP ministers, first separately, and later together. Meanwhile, news came that the PDP has withdrawn support two days before the deadline. It was nothing but betrayal and cheating.
It now appears that in Kashmir, and later in Jammu, there were rumours that led to agitations. Why did your government fail to counter these?
I did try to set the record straight. In Kashmir, the agitationists got emboldened by the stand of the PDP and the National Conference against the decision. It was a shot in their arm. However, in Jammu, people's reaction was so sudden that they were apparently in no mood to listen to logic and facts.
Mistrust between the Congress and the PDP was also one of the causes of the present crisis
Let me reveal a hitherto unknown fact of history. It was a quirk of fate that brought the PDP and the Congress together after the 2002 elections. In fact, I was elected leader of the Congress, which was the second largest party with 20 members. Other 22 independents and smaller parties extended their support to me.
I was set for my swearing in when I thought why not take Mufti Mohammad Sayeed along? I called up Mufti Sahib and he was ready. Though I gave the names of MLAs supporting the Congress to the governor, I rushed to Delhi. It was the National Conference, which offered unconditional support to my government and warned us against tying up with the Muftis.
Then Madam (Sonia) Gandhi agreed. After we worked out a power-sharing formula, the Mufti started complaining. He told Madam that it would be an insult to him if he was not given the first chance to head the government. I remember Madam Gandhi magnanimously saying yes to the Mufti's proposal.
Being the first chief minister of J&K from the Jammu region, why did you fail to read the anger brewing there before ordering cancellation of the land transfer?
I agree we did not anticipate such a reaction from Jammu. I believe the people of Jammu saw a gang-up in Kashmir against their religious sentiments. They would not have minded the Hurriyat opposing the land transfer but when parties like the NC and the PDP joined in the protests, the people were shocked, and hence the reaction. Initially, the Jammu agitation was based on religious sentiments, but now it has turned into a regional issue. It's unprecedented and unfortunate.
Political pundits have started writing the obituary of the Congress in J&K after this agitation.
It's too early for that. Raising passions and organising protests is one thing and running the government is another. When they decide to vote, the people will surely keep in mind that it was during my tenure that 550 development projects were undertaken. I can claim to have ushered in work culture in the state. This cannot go unnoticed by the voters after the dust settles. The Congress will come back to power in the state once again.
On the table, a way out: go by law on shrine board powers, court rulings
Posted online: Monday, August 11, 2008 at 0337 hrs IST
SRINAGAR, AUGUST 10
The Amarnath shrine land transfer row, which has paralysed Jammu and Kashmir for two months, today seemed to have moved a step towards a possible resolution. One way out, already being called the most viable, has incidentally come from a BJP national leader — a solution which calls for adherence to the Shri Amarnath Shrine Board Act and court interpretations of the Act outlining the powers and functions of the Board.
“Stick to two things: the Shri Amarnath Shrine Board Act, a legislation passed by the J&K Legislative Assembly in 2000, that led to the formation of Amarnath Shrine Board and the court directions interpreting its powers and functions regarding the Yatra,” said sources, disclosing what lies at the heart of this proposed solution. “The rest — land transfer, its revocation and everything else — be treated as null and void.”
As per Section 16 of the Shri Amarnath Shrine Board Act, the Board has the following roles and responsibilities:
• To undertake for the benefit of worshippers and pilgrims the construction of buildings for their accommodation (the Board had already been planning insulated huts with cushioned bunks keeping in view the fragile ecology of the region)
• Construction of sanitary works
• Improvement of means of communication
• Make provision of medical relief to pilgrims
• Arrange for proper worship at shrine
• Undertake developmental activity concerning the areas of the shrine and its surroundings
• Make arrangements for safe custody of funds, valuables and jewellery and preservation of Board funds
• Make provision for suitable emoluments to salaried staff
• Make suitable arrangements for imparting religious instructions and general education to pilgrims
• To do all such things as may be incidental and conducive to efficient management, maintenance and administration of shrine, and Board funds and for the convenience of pilgrims.
Sources said what the courts have done is to interpret the Act and outline the powers and functions of the Board.
The sources said the reason why this proposal is not immediately being made public is because it still needs to be discussed. Moreover, there is apprehension of a negative reaction from the Sangh Parivar which is actively directing the agitation in Jammu and sponsoring the Shri Amarnath Yatra Sangarsh Samiti, a conglomerate of Hindu organisations in Jammu that has been spearheading the agitation.
Former Chief Minister Farooq Abdullah, sources said, has informally supported the proposal which will possibly be discussed with other political parties to bring about a consensus. In fact, former Chief Minister Ghulam Nabi Azad too indicated that the government was trying to work out a solution.
“We are working on a solution which will resolve the issue amicably and I am sure we will do that soon,” said Azad, soon after the all-party meeting here with the delegation accompanying Union Home Minister Shivraj Patil.
During the deliberations between the Central delegation led by Patil and the representatives of various J&K political parties, the main focus was on the economic blockade of Kashmir Valley and Rajouri, Poonch and Doda districts besides the attacks on Muslim Gujjars across Jammu province.
“Nobody from the Central delegation spoke at the meeting,” National Conference leader Mehboob Beig, who was part of his party’s delegation, told The Indian Express. “The Union Home Minister did respond to the issue of Muslims being targeted in Jammu and the economic blockade. He assured that law and order would be strictly maintained to prevent communal violence. Regarding the economic blockade, he (Patil) said that the government would take all necessary steps to keep the highway open at all costs, not only between Jammu and Srinagar but beyond Jammu, even in Punjab,” Beig said.
At a press conference, Patil said: “We are laying emphasis on the supply of essential commodities like medicine, mutton and other stuff in Kashmir. And we will make sure that the road is not blocked.”
He, however, came up with a strange solution to the problems faced by Kashmiri fruit-growers whose produce are rotting because of the “economic blockade” of the Valley. “We will not let fruit-growers suffer losses, we will take all necessary steps. If they are unable to send their fruits to the market, we will ask people in the government to buy it from them here. The police and the CRPF will buy it. Or we will buy it and give it to school children,” he said. “If the losses still continue, we will pay them compensation as we do in other parts of the country.”
He underlined that there should be no regional or communal divide. “This is what everybody has told me from Jammu to here and it is a good thing,” he said. He said the Yatra had been going on smoothly. “We will have to look for a solution for the land issue — a solution which will not have any negative impact on Kashmir or Jammu,” he said.
He also said that both the state government and the Centre would pay compensation to the next of kin of every person who has lost his life in Kashmir in connection with these incidents. “We want to share the grief of our brothers here,” he said.
Govt toys with turning clock back
Pioneer News Service | New Delhi/Jammu/Srinagar
Amarnath land standoffThe all-party delegation returned to New Delhi on Sunday after spending two days in Jammu and Kashmir with a slew of proposals on resolving the Amarnath land row. Union Home Minister Shivraj Patil, who led the delegation, is expected to brief Prime Minister Manmohan Singh about the outcome of the two-day exercise and apprise him of the suggestions received from various quarters to end the standoff.
With Jammu on the boil and an alarming situation developing in Srinagar, the Government has little time to act. Throwing its lot with the separatist Hurriyat Conference, the PDP has threatened to cross over to PoK to bring in essential goods if the protesters in Jammu continued with their economic blockade of the Valley.
As a precautionary measure, the authorities in Srinagar have placed Hurriyat Conference chief Mirwaiz Omer Farooq and separatist leader Ahmad Shah Gilani under house arrest.
Among the various options under consideration of the Government was a suggestion to fall back on a State high court order that made it incumbent on the Government to safeguard the interests of the Amarnath yatris.
The directive under this order could be shoehorned with the demands of the protesters in Jammu to arrive at a solution, sources said.
According to the proposal, all the controversial decisions that led to the flare-up will be cancelled, including the Cabinet decision transferring land to the Amarnath Shrine Board and also the decision revoking that order, sources told NDTV. In their place the old high court order will continue to operate. This order asks the Government to safeguard the yatris' interests, according to the channel.
Hinting that the delegation may have something in its pocket, former J and K Chief Minister Farooq Abdullah said, "They (all-party delegation) have a solution. It is being cooked. It takes time for the broth."
"It is not that we (Kashmiris) do not want to give land or they (Jammuites) want to take the land... We have to find a solution and that can be found only by talking," Abdullah said.
His son and NC president Omar Abdullah was more specific. He suggested reconstitution of the Amarnath shrine board and demanded that it be given the responsibility to conduct the annual pilgrimage from next year.
"If it's the yatra that matters, then let's set our egos aside and concentrate on the yatra. Let's the SASB with only state subjects. Let's get the Governor to pass an ordinance to make the SASB chairman also a state subject...
"...Let the SASB conduct next year's yatra with as much land and facilities as it requires, facilities created at the expense not of the SASB but of the State Government and see if this satisfies the yatris who come from all over the country," Omar said in his last write-up on his blog.
"Even after this, if the need is felt to reduce the yatra to 800 kanals (nearly 40 hectares) of land, I'm sure that a case can be made to trade 800 kanals for the 3,200 or more kanals of land that won't be used in the future," the NC president said.
BJP general secretary Arun Jaitley, who was part of the delegation, said that talks should have been held long before. He felt that the exercise of the talks could help in finding a solution to the row.
Home Minister Patil said, "the situation was improving and blockades have been removed. The road from Valley to Jammu and to Punjab has been cleared, he said and promised compensation to the victims of the ongoing agitation.
To a question on the sanctity of the delegation sans leaders from the Valley, Patil said some leaders withdrew themselves on a demand made by Shri Amarnath Sangharsh Samiti that it would not sit for talks till Saifuddin Soz (Congress), Mehbooba Mufti (PDP) and Farooq Abdullah (National Conference) were present.
Samajwadi Party leader Amar Singh and former Jammu and Kashmir Chief Minister Ghulam Nabi Azad cautioned against some separatist groups trying to misuse the situation by threatening to cross the LoC and counter the economic blockade.
CPI leader D Raja was "optimistic" of a solution and Union Minister A Raja described the talks as "fruitful and positive".
Earlier in Srinagar, Patil told a press conference that communal harmony will not be allowed to be disturbed, and the land row will be resolved in a manner that it does not hurt the people of Jammu or Kashmir regions.
Patil said there is no "economic blockade" and traffic is plying as usual from the Valley to Jammu and Punjab.
Meanwhile, Mehbooba Mufti has said that the PDP has decided to join the march to Muzaffarabad on Monday, the call for which has been given by fruit growers' association.
Mufti said party workers and sympathisers led by senior leader Abdul Aziz Zargar and Mohammad Dilawar Mir will constitute part of the main convoy.
She said, "the march should be seen as the assertion of Kashmir's inalienable right to trade and travel without restrictions."
The PDP president also demanded that the Srinagar-Muzaffarabad road be opened for goods traffic.
The Hurriyat Conference as well as other separatist outfits have announced that they would march to Muzaffarabad on Monday to "counter the economic blockade" of the Valley.
"We will have to seek how to deal with the (Amarnath) land issue. We will definitely make efforts that it is resolved in a manner in which it does not hurt (the sentiments) of people of Jammu as well as of Kashmir," Patil told mediapersons in Srinagar after chairing a nearly three-hour-long all-party meeting there.
The meeting came a day after the leaders of Shri Amarnath Sangharsh Samiti, spearheading the agitation in Jammu, held talks with Patil-led delegation. But no headway was made at the Jammu meeting as the samiti stuck to its demand for restoration of land to the Amarnath shrine board and removal of Governor NN Vohra.
On the "economic blockade" of the Valley in the wake of the stir, the Home Minister said all measures would be taken to ensure that the Jammu-Srinagar national highway remains open at all times for transport of essential commodities and goods.
Patil, who reflected the views voiced by the delegation leaders, noted that the Amarnath yatra should go on as before. "The Prime Minister has also said that it should continue (as in the past)."
The Home Minister said all parties at the meet felt that "there should be no communalisation of the situation. There have been some incidents but the situation will be tackled.
Besides leaders from Congress, BJP, CPI (M), CPI, Samajwadi Party and RJD, the meeting was attended by former Jammu and Kashmir Chief Ministers Farooq Abdullah and Ghulam Nabi Azad, Mehbooba Mufti (PDP) and Saifuddin Soz (Cong) besides local leaders.
In Jammu, Amarnath Yatra Sangharsh Samiti insisted on its demand for recall of Jammu and Kashmir Governor NN Vohra, saying it would build a congenial atmosphere in Jammu.
"We want removal of NN Vohra from the post of Governor of the Sate as this will help in building a congenial atmosphere in Jammu," the samiti said in a two-page memorandum to the all-party delegation led by Patil.
The samiti also demanded withdrawal of the letter written by Vohra dated June 29, 2008 as chairman of SASB to the State Government asking it to take over the land diverted to the board.
It also asked for rescinding the decision of the State Cabinet on July 1, 2008 accepting the request of the SASB chairman and restoration of the land at Baltal to the board.
"These demands are very easy to be fulfilled without any legal or legislative implications. Nothing less than this will be acceptable to the people of Jammu," the memorandum said.
"We have chosen to address your goodself in a situation where an all out repression and intimidation has been unleashed by the State Government on the people of Jammu to suppress their views," it added.