JAMMU AND KASHMIR PUBLIC MEETING HELD ON DECEMBER 9,2001
Shri Pranawa C. Deshmukh, Convenor, CIFJKINDIA
Mrs.Radha Rajan, Vigil Public Opinion Forum
Shri Arvind P.Datar, Senior Advocate, Madras High Court
Text of the Speech
Verbatim transcription of a part of the talk
Shri. Habibullah Badsha, Senior Advocate
Shri G.Parthasarathy, Former Indian High Commissioner To Pakistan
Shri I.D.Swamy, Union Minister Of State For Home Affairs
Intervention By ‘VIGIL’ on the Jammu and Kashmir Resettlement Act
CONSOLIDATION and INTEGRATION FIRST of JAMMU and KASHMIR in INDIA
Pranawa C. Deshmukh ,Convenor, CIFJKINDIA
Honorable distinguished invited speakers at this seminar, our esteemed invited guests amongst the audience, fellow citizens, ladies and gentlemen:
A very warm welcome to you all!
CIFJKINDIA stands for ‘CONSOLIDATION of INTEGRATION FIRST of JAMMU AND KASHMIR in the Union of India’.
CIFJKINDIA is a part of an international effort from Indians and people of Indian origin, who have taken a democratic, non-political, secular approach to First achieve the Consolidation of Integration of the State of Jammu and Kashmir in the Union of India. The Jammu and Kashmir imbroglio must be seen fundamentally as one having far reaching consequences on India’s national integrity, security and destiny. We hold that India is yet to meet its “Tryst with Destiny”, that we have enemy on our ground, and hence we must take effective steps to counter this situation.
The significance of the term ‘FIRST’ in CIFJKINDIA emphasizes our position that any consideration of other factors such as granting autonomy to Jammu and Kashmir etc. be not considered till comprehensive integration of Jammu and Kashmir is effected FIRST and the state-center relationship of Jammu and Kashmir is brought about to be the same as that for other states in the Union. While minor variations in the state-center relationships may be required to suit the needs of each state, our position is that Article 370 of the Indian Constitution which was introduced essentially as a temporary measure violates the equality of the state-center relationship with regard to Jammu and Kashmir vis-à-vis all other states. This aberration needs to be corrected by shifting the emphasis from law-enforcement to law-making which the Indian Parliament is empowered to do. We are amazed that Article 370 is considered as the ‘root cause’ by many and as ‘irrelevant’ by some. We need this paradox to be removed, and we believe that this can be done by repealing it as a necessary but by no means a sufficient step toward lasting peace in the region.
While we accept the notion of ‘autonomy’ as an expression of enhanced regional powers to the elected representatives of a region in the highest democratic tradition, we absolutely reject that the discussion on state autonomy be driven by the Jammu and Kashmir factor.
There is a very major need to generate awareness amongst the people of India about the legality and completeness of the Accession of Jammu and Kashmir to India, about the UN Resolutions and the plebiscite issue, about Article 370 of the Indian Constitution, about the Constitution of the State of Jammu and Kashmir, about the demographic implications of the Kashmir imbroglio, etc.
In order therefore to generate awareness about these issues, the CIF movement launched its campaign in early part of year 2000 and submitted a petition to the Prime Minister of India and to the Leader of the Opposition in the Lok Sabha. This petition was called the CIF petition and was submitted on June 10th, 2000, by the Bharat Awareness Forum, a small organization in Atlanta, USA, consisting of concerned Indians. The petitioners from Bharat Awareness Forum worked very closely with the community of Kashmiri Hindus, and submitted, along with four organizations of Kashmiri Hindus, another petition to the Prime Minister of India on August 22, 2000, called the ‘Anti Terrorism Firm Handling’ (ATFH) PETITION. The ATFH petition was submitted by Non Resident Indians from Canada, Cyprus, Italy, Nepal, Nigeria, Singapore and U.S.A., and, by five organizations, namely, Asia Pacific Kashmiri Pandit Forum, Singapore; Bharat Awareness Forum, Atlanta, USA; Panun Kashmir Movement (Overseas), USA; Panun Kashmir (USA), and Global Kashmiri Pandit Human Rights Forum, Nepal.
In the face of General Musharraf’s visit to Agra in July earlier this year, some groups came together to strengthen the CIF ideology and the CIF-2 petition was submitted to the Parliament of India on July 2, 2001. This petition was co-authored by five groups: Bharat Awareness Forum, Atlanta, USA; India Think Tank, Washington, USA; Vigil, Public Opinion Forum, Chennai; Friends of India Society International, UK; and Indo-European Kashmir Forum, UK. A copy of the CIF-2 petition was sent to every member of the parliament in both the Lok Sabha and the Rajya Sabha and we are eagerly awaiting response from our parliamentarians. We have made a sincere and modest attempt to generate awareness amongst the people of India. We believe that generating awareness and influencing policy makers through petitioning the elected representatives of the people of this country, provides most direct and powerful means to citizens to participate in nation-building. We have launched a website – http://www.cifjkindia.org – and a fairly large team of dedicated persons is contributing toward the awareness campaign on this issue. I am happy to inform that one organization amongst the CIF team, namely the Indo-European Kashmir Forum, held only yesterday a seminar in London addressing the Human Rights of the Kashmiri Hindus, which is a matter of very deep concern to us. I now request Radha to lay down the framework for today’s seminar and place before us crucial facts regarding the Jammu and Kashmir imbroglio. Radha will touch upon various sensitive and complex issues and will reveal India’s strength in this case.
Thank you all very much!
Introduction To The Issue And Speakers By ‘VIGIL’
May I extend a very warm welcome to this distinguished galaxy of speakers today and to each and every one of you who has made the time to be present here today.
‘Vigil’ began this year with a day-long seminar on J&K. The thrust and focus of that seminar was that the solution to the problem of terrorism and separatism in J&K will depend on our understanding of nation, nationhood and nation state. The proceedings of this seminar was published as a book which I hope many of you have seen. This book was made available to persons in the highest circles of politics in New Delhi and to influential people in the media and to those of different political parties and ‘Vigil’ has reasons to believe that the book has had considerable impact in these circles. We had not planned for another meeting on J&K again but in August this year I had occasion to attend a three day seminar in Chennai on Peace in South Asia, arranged by Nirmala Deshpande, a self-styled Gandhian and Admiral Ramdas. My hackles rise whenever I hear the names of this good lady and Admiral Ramdas mentioned in the context of peace and I decided I would attend this conference just to listen to what these people have to say about peace in South Asia. As I had suspected, the conference was not about peace in South Asia, it was about discussing Jammu and Kashmir!
At the conference was present a jumbo delegation from Pakistan, 140 delegates, the Hurriyat was here in the persons of Mirwaiz Umer Farooq and Abdul Ghani Lone. The Dalai Lama was here, the Kashmiri Pandits were not invited, they were not present, the voice of the people of the rest of India was not heard, the Hindus of Jammu were not there and neither were the Budhists of Ladakh nor the non-sunni Muslims of the state of J&K; and these people had the gumption to say that they were discussing peace in Jammu and Kashmir. Some rather unfortunate remarks with regard to J&K were made by the Dalai Lama which he of course retracted later. But this group has been moving from city to city in various guises in different combinations spreading this insidious poison about our armed forces, our police in J&K, about this government, about human rights violations and with their prescription for ‘conflict resolution’. After ‘sustainable development’, ‘conflict resolution’ is the most fashionable phrase to use in seminar circles.
This group has come out with the Bangalore Declaration, the New Delhi Declaration, the Calcutta Declaration, the Chennai Declaration, the Lahore Declaration and the Peshawar Declaration. They are rather discreet when they speak about our armed forces with regard to J&K on Indian soil. But the Peshawar Declaration is an outrageous document, which offends Indian sensibilities. It declares openly that our Indian armed forces rape Kashmiri women, and that they loot and plunder. Loose talk, nothing but loose talk, not one of these terrible things that they are saying can be verified to be true. This document is silent on the role of Pakistan in Jammu and Kashmir, about the human rights violations perpetrated by the terrorists against unarmed civilians and our armed forces and their families. It is a malignant document vilifying our valiant armed forces on Pakistani soil. It was this group which came to Chennai in August of this year.
I would request each one of you to visit this website – Pakistan India Peoples’ Forum for Peace and Democracy (PIPFPD), Ram Puniyani, Admiral Ramdas, Nirmala Deshpande, Mohini Giri and co. And do please read all those high-falutin Declarations. Following this group, in early November, Chennai witnessed another hyped up show – the visit of the professional American dissenter, Professor Noam Chomsky. He was asked to speak on a rather pompous title “September 11 and its aftermath – Where is the World heading?” Unfortunately for the organizers, Prof. Chomsky did not deal with this issue at all in his talk. Not a word. He dealt at great length on the issue of the American State as a Terrorist State and chronicled the depredations perpetrated by the American State in different parts of the world – in Latin America, in Iraq, in Somalia and so on. But thankfully, he was wise not to speak a word on the aftermath of September 11 and not even a half word on where the world was heading. But unfortunately for him a very pointed question from Shri Peter Alphonse of the Tamil Maanila Congress compelled him to respond to the topic as announced by the organizers. Shri Peter Alphonse asked Prof. Chomsky about the implications of Islamic terrorism for non-Islamic nations, for nations whose majority were not Muslims. In the course of answering the question, Prof. Chomsky made an uninformed and obviously spoon-fed reference to Jammu and Kashmir and Hindu fundamentalism, to which reference I will return in just a short while.
Having attended these two meetings ‘Vigil’ decided to hold another meting on J&K at the earliest and we are immensely grateful to this eminently distinguished panel of speakers who will inform us on the problems in J&K which has brought the state to the brink of anarchy. We have in our midst today Shri I.D. Swamy, Hon’ble Minster of State for Home Affairs who will tell us what this government intends to do in the short term and in the long term to end terrorism in the valley and in the state. We also have with us here Shri G. Parthasarathy, former Indian High Commissioner to Pakistan who will inform us on the role of external forces, which want to keep this problem burning and alive. Specifically, he will be dealing with the perfidy of the UN, the USA, the UK and of course, Pakistan. We have Shri Habibulla Badsha, Senior Advocate of the Madras High Court who will be speaking to us not only on Article 370 but also on terrorism. Shri Arvind Datar also Senior Advocate in the Madras High Court will focus his entire talk on Article 370, its legal implications, its constitutional status, and the most important question, can it be abrogated?
When ‘Vigil’ decided to hold this meeting on Jammu and Kashmir, and we had to study the Jammu and Kashmir Resettlement Act and Article 370, we had to refer to the Constituent Assembly Debates. Shri Gopalaswamy Ayyangar places the draft of Article 370 before the CA for discussion before it is incorporated into the Indian Constitution. But before he tables it before the Constituent Assembly Gopalaswamy Ayyangar places it before the Congress Working Committee and what the Congress of today, the flag-bearer of secularism of which Article 370 is a shining example, wants to forget is that the CWC opposed Article 370 tooth and nail. Gopalaswamy Ayyanger knew that with that kind of opposition to Article 370 from the Congress party, he could not hope to steer it through the Constituent Assembly. He therefore rushes to Sardar Patel and pleads for him to exert his influence on the Congress party to allow the safe passage of the provisions with regard to J&K, through the Constituent Assembly.
I am making this point because while the Congress party opposed Article 370 tooth and nail because it was keeping the state of J&K from being fully integrated with the Indian Union, it has today changed the idiom of discourse in such a manner, that demands for abrogation of Article 370 is dubbed by the Congress to be anti-Muslim and communal. So, when you read the Constituent Assembly debates with regard to Article 370, you will see that this provision which has been a perennial thorn in the body politic of this nation, is tabled before and adopted by the Constituent Assembly on the 17th October, 1949, with barely a murmur. No debate, no questions, no opposition, no demur. There is no rationale for Article 370 in the Indian Constitution were it not for the fact that we had allowed (I say ‘we’ because we accept collective responsibility for this historic blunder although it was the work of just one individual), the state of Jammu and Kashmir alone the right to have its own constitution. A right which was no doubt granted to all princely states by the Instrument of Accession but which right they all willingly forfeited because all princely states sent their representatives to the Constituent Assembly and participated in the proceedings and had their say in the shape and framework of the constitution that was being made for the new nation-state of India.
The Instrument of Accession by which all princely states acceded to Indian Union was the same for all of the 562 states which finally opted to accede to India. As per the Instrument of Accession, they all surrendered sovereign control over Defense, Communications and External Affairs, while retaining control over all other matters of State, which meant in principle that all the 562 princely states would also have been given the right to have their own constitutions. But Sardar Patel, embarked upon this super-human task of welding this fragmented- by colonialism nation into a cohesive nation-state. He persuaded the rulers of all the princely states to give up their right to have their own constitutions and participate in the making of a national constitution which would safeguard the interests of the rulers and their kingdoms. He did not have any say in the affairs of J&K, Jawaharlal Nehru related one-on-one with Sheikh Abdullah to decide the contours of the future polity of Jammu and Kashmir, and J&K ended up with having its own flag and its own constitution and the nation continues to pay the price for his wooly-headedness. There is no rationale at all for Article 370 by which the state of J&K is given special status and is in many respects more equal than the other states in the Indian Union. Article 370 was necessitated by the sole fact that J&K was allowed to have its own constitution.
I met two members of parliament belonging to the National Conference from J&K at this outrageous seminar in August and they told me that the Instrument of Accession for J&K was not the same as that of the other princely states. They were factually incorrect except that we made Sheikh Abdullah some far-reaching concessions before and after, which has led the state to chaos and into the abyss of separatism. Shri Arvind Datar will speak in greater detail about the nuances of Article 370 but as a result of Article 370, the state of Jammu and Kashmir enjoys much more autonomy than the other states in the Union. It has more control over its affairs then the other states. In the spirit of true federalism, ‘Vigil’ is all for greater administrative and financial autonomy for all states but not for the kind of political autonomy demanded by the valley politicians which falls just short of secession. This country must debate the issue of greater administrative and financial powers being devolved to the units in the best interests of democracy but this debate cannot be driven by the J&K factor.
We now have this demand for Greater Autonomy being made by Farooq Abdullah. I do not know how many of you know this but there are two reports on Autonomy. One is the Regional Autonomy Report and the other is the State Autonomy Report. The Regional Autonomy Committee was constituted under the Chairman ship of Shri Balraj Puri who submitted his report to Farooq Abdullah last year. The State Autonomy Report was submitted by Dr,.Riaz Punjabi. The Regional Asutonomy Report prepared by Shri Balraj Puri identifies regions and districts which are under-developed judged by the poor rating on social indices and therefore calls for greater devolution of power within the state of J&K to the districts and the Blocks to enable and ensure equitable distribution of Central funds and equitable development projects which will ensure employment and an improved standard of life for the people of the locality. This report was brushed under the carpet, Shri Balraj Puri was shown the door and another committee was constituted which submitted the State Autonomy Report which calles for a return to the pre-1953 dispensation. What does this in effect mean? This means that the Constitution (Application to J&K) Order of 1954 is rendered null and void. None of those measures by which this provision enabled the integration of the state of J&K with the Indian Union, will apply to J&K thereafter.
I don’t know why the media does not quiz the Chief Minister of J&K about this, but the J&K state constituent assembly was constituted in 1952 and the constitution was adopted in 1956-57, if you return to the pre-1953 dispensation, the citizens of J&K will no longer be citizens of India. Because it was under the Constitution (Application to J&K)Order of 1954 that all state subjects and other residents of J&K were granted Indian citizenship. And it may also be worth our while to find out if the return to the pre-1953 dispensation will also mean that you go back to the days not only before Article 370 became functional but also to those days before the J&K constitution became functional. A return to pre-1953 status will also mean that the financial integration of the state achieved with India through Article 370 will also cease to be. Then what will Farooq Abdullah do? Will he have his own currency? His own exchange rate? His own federal bank? His own Customs and Excise laws? Not to mention the fact that the state of J&K is today totally dependant on central funds not only for plan expenditure but also for non-plan expenditure.
When you look at the events of 1947-48 it is almost criminal the way the parliament of the day and the intellectual establishment accepted so many of these momentous decisions unquestioningly, undebated. In December 1947 India warned Pakistan to cease State support to the unlawful troops which had invaded Jammu and Kashmir despite Pakistan’s acceptance of the Standstill Agreement in August 1947. India threatened to invade Pakistan to destroy the bases from which arms and other logistics support was being sent to these troops. Gandhiji had written to Atlee calling upon him to prevail upon Pakistan to vacate its occupation of Indian territory of J&K. It was a very significant moment in history. .
J & K – NEED FOR CONSTITUTIONAL CHANGES
DR.Arvind P.Datar, Senior Advocate, Madras High Court
Emperor Jehangir had exclaimed that if there was paradise on Earth, it was in Kashmir. At the time of independence, our founding fathers would have hardly imagined that this beautiful valley would become a living hell. With each passing year, the situation seems to deteriorate even further.The economic consequences for the entire nation are horrendous.
Kashmir today has a special status by virtue of Article 370 of the Constitution of India. It is the only State, which has its own Constitution. With the exception of Defence, External Affairs and Communication, it has the privilege of deciding whether or not any law made by Parliament would apply to Jammu and Kashmir. Fifty years of Article 370 has not solved the problem of Jammu and Kashmir; on the other hand, the provisions of Article 370 have actually now become counter productive and guarantee a perpetual period of misery, strife, social tension among the different regions and peoples of Jammu and Kashmir. These conditions are the breeding ground for fundamentalism and terrorism.
Article 370 and Article 35A:
Extensive media attention has traditionally focused on Article 370. This Article is contained in Part XXI of the Constitution, which deals with temporary, transitional and special provisions. Article 369 gives Parliament additional powers for certain matters for the first five years and has now been exhausted. Article 370 is titled "Temporary Provisions with respect to the State of Jammu and Kashmir".
The essence of Article 370 is that it limits the power of Parliament to make laws for Jammu and Kashmir. With regard to Defence, External Affairs and Communication, Parliament has the exclusive powers to make laws. As stated above, with regard to other matters in the Union List or the Concurrent Listlaws can be made applicable to Jammu & Kashmir with the concurrence of the State Government. In simple terms, if Maharashtra or Tamilnadu were covered under Article 370, they would have the right to pick and choose Central Laws to suit their convenience. They could determine, for example that they would not like Income Tax or Central Excise to apply to their States. It is necessary to set out the historical background of this unique provision.
Indian Independence Act, 1947:
On June 3, 1947, the British Government announced its decision to transfer power to the two Dominions that came into being as a result of Partition – Dominion of India and Dominion of Pakistan. The transfer was to take place on August 15, 1947. This transfer of power would apply only to British India. The Princely States comprising 48% of the total land mass of Indian Sub-continent and 28% of its population were not a part of British India that was partitioned into India and Pakistan. The Indian Independence Act, 1947 gave an option to every Ruler of these princely states the choice to accede to either of the two Dominions or remain independent. As per the Act, no Ruler was obliged to join either India or Pakistan. He could choose to remain the ruler of an independent, sovereign nation. This was the logical consequence of the lapse of British paramountcy over the princely states.
On June 25, 1947, Lord Mountbatten called a meeting of the Chamber of Princes. He advised them to join either India or Pakistan, depending on the geographical contiguity of the respective States. Several States were so small that they would simply have been unable to remain independent. Thanks to the herculean efforts of Sardar Patel, 555 States integrated with India and signed the Instrument of Accession by August 15, 1947. Almost all the Princely States had thus merged into India while some joined Pakistan.
The Maharaja of Jammu and Kashmir, Sir Hari Singh did neither. On August 12, 1947, he proposed a "Standstill Agreement" to both India and Pakistan whereby Kashmir would join neither India nor Pakistan but would remain independent. India asked for time to consider the agreement and neither accepted the agreement nor rejected it; but Pakistan agreed to accept the Standstill agreement, thereby also accepting that Jammu and Kashmir would not accede to Pakistan.
Pakistani attacks on Kashmir:
Almost immediately after August 15, 1947, Pakistan began systematic operations along the border. On October 28, 1947, several thousand so-called ‘tribals’ entered Kashmir. These were armed with sten guns, bren-guns and other sophisticated weapons. It was obvious that no tribal group would have these weapons in their possession unless they were supported by a strong, regular State army. In December 1947, the Indian Army Commander made it clear to the Government of India that unless the bases and training camps within Pakistan were smashed, the violation would continue. In retrospect, the proper thing to do would have been to have attacked these camps and demonstrated decisively that India would not tolerate covert operations by another State on its territory.
Reference to the United Nations:
As stated above, the Indian Army had emphasized the need for destroying the bases and training camps within Pakistan if the infiltration and violence was to be checked. On December 22, 1947, India issued a warning to Pakistan and threatened to take action unless Pakistan stopped assistance to the invaders. Lord Mountbatten urged Pandit Nehru to act with "caution and restraint" and pointed out that war with Pakistan would undermine the whole of Pandit Nehru's foreign policy and progressive social aspirations. Following the suggestion, India invoked Article 35 of the Charter of the United Nations. The resolution appealed to the Security Council to ask the Government of Pakistan:
(1) to prevent Pakistan Government personnel, military and civil,participating in or assisting the invasion of Jammu and Kashmir State;
(2) to call upon other Pakistani nationals to desist from taking any part in the fighting in Jammu and Kashmir State;
(3) to deny to the invaders:
(a) access to and use of its territory for operations against Kashmir;
(b) military and other supplies;
(c) all kinds of aid that might tend to prolong the present struggle.
According to Lord Birdwood, the illegal acts of aggression by Pakistan were the basis of the Indian case. Pakistan promptly rejected the charges and accused India of genocide, fraud and violence. On 17th January, 1948, the Security Council passed a resolution which was accepted by both India and Pakistan. Shockingly, all that the resolution did was to call upon India and Pakistan to take all measures within their power to improve the situation and to refrain from making any statements or from doing any acts, which might aggravate the situation. It will be seen that the acts of aggression on the part of Pakistan were not even commented upon. India was put together with Pakistan like a co-accused and asked to take steps to improve the situation !! There is no doubt that the clear beneficiary of this foolish reference to United Nations was Pakistan. In retrospect, the reference to the United Nations by Pandit Nehru must rank as one of the costliest mistakes for which we continue to pay a heavy price.
Accession of Jammu and Kashmir
Faced with attacks from Pakistan, Maharaja Hari Singh signed the Instrument of Accession on 24th October, 1947 and ran away to Jammu, the winter capital, leaving the administration in the hands of Sheikh Abdullah. It is significant that the Instrument of Accession signed by Hari Singh was the same as those instruments signed by other Princely States. For some unknown reason, Lord Mountbatten wrote to Sri Hari Singh stating that once the violence abated and the valley was cleared of intruders, steps would be taken to ascertain the "will of the people." Till date, there is no explanation why this letter was written. It is hard to believe that Lord Mountbatten could have done this on his own and without authority or knowledge of Pandit Nehru. Therefore, from the inception, Jammu and Kashmir was placed on a pedestal without any justification whatsoever.
The present Article 370 was introduced as Article 306A of the draft Constitution. It is reported that all members of the Congress Parliamentary Committee were against any kind of special status for Jammu and Kashmir. However, since the proposal had been mooted by Pandit Nehru, the Article was passed virtually without any discussion or debate. The provisions regarding Jammu and Kashmir were introduced on October 17, 1949. Shri Ayyangar makes a special reference to the war-like conditions prevailing in the State; the administration had to be geared to meet the unusual conditions and special provisions would be necessary until normal life was restored as in the case of other States. He also made a reference to "the entanglement" with the United Nations with regard to Jammu and Kashmir. Strangely, a reference was also made to ascertain the will of the people through the instrument of the Constituent Assembly of the Jammu and Kashmir state which was constituted for the purpose of drafting a constitution for the state. Repeated reference was also made to the fact that Article 370 would not be a permanent feature but was to be enacted only to meet the peculiar circumstances prevailing at that time.
Ironically, the only person who objected to the separate status of Jammu and Kashmir was Maulana Hasrat Mohani, a Muslim member from the United Provinces. He enquired as to why a similar special status could not be given to, say, Baroda. There was no answer to his query and Article 306A became Article 370. It was titled "Article 370 – Temporary Provisions for Jammu and Kashmir".
It is a matter of supreme irony that several Articles which were meant to be permanent features of the Constitution have been repealed; Article 370, which was supposed to be temporary, has become a permanent feature of our Constitution.
Permanent resident – Article 35A:
The most inequitable result is not brought about by Article 370 but by Article 35A. This sinister provision finds a place in Part-III of the Indian Constitution which deals with fundamental rights. In reality, it deprives 10% of the residents of Jammu and Kashmir of their fundamental or basic rights. This Article enables the Government of Jammu and Kashmir to make special laws for "permanent residents" of the State of Jammu and Kashmir. This privileged class is entitled to have special rights for themselves and restrictions being imposed on others with respect to four matters namely (i)employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide
Article 35A protects even the most unreasonable laws made against persons in Jammu and Kashmir who do not fall within the category of permanent residents.
These laws cannot be challenged on the ground that they violate the fundamental rights of non-permanent residents. It should be borne in mind that non-permanent residents of the state of J&K are also citizens of India.
Permanent resident – meaning of:
Section 6 of the Constitution of Jammu and Kashmir defines a permanent resident as a person who is not only a citizen of India but also satisfies the following requirements as on May14, 1954.
(a)he was a State subject of Class I or Class II,
(b)he had acquired immovable property by that time and had been ordinarily resident in the State for not less than ten years before 14.5.1954.
(c)persons who were class I or class II subjects and had migrated to Pakistan after March 1,1947 but returned to Jammu & Kashmir under a permit for resettlement.
State subjects of class I and class II were defined in two State Notifications issued in 1927 and 1932. Apart from the above conditions, it was open to the State Government to impose further conditions for conferring the status of "permanent resident".
It is significant to note that a person who was staying in Pakistan and who migrated to Jammu and Kashmir during partition would not qualify as a permanent resident. On the other hand, a person from Kashmir who goes to Pakistan and has chosen to come back would qualify to be a permanent resident. This extraordinary provision thus creates a special class of people in Jammu and Kashmir who alone are entitled to Government jobs, acquiring property and who alone are entitled to scholarships, loans and other benefits that are handed out by the Government from time to time. The disastrous manner in which this provision works can be graphically understood by the shocking case that follows.
Bachan Lal's case:
In 1947, Mr. Bachan Lal Kalgotra migrated to Jammu and Kashmir from Pakistan. As a Hindu, he perhaps felt safer to return to Jammu and Kashmir rather than stay on in the Dominion of Pakistan. Mr. Kalgotra is a citizen of India and, until 1987, he had lived in Jammu and Kashmir for 40 years. Under the pernicious definition of "permanent resident", he was a second class citizen in the state of J&K. The disabilities that persons like Mr. Kalgotra suffered and continue to suffer, are truly astonishing:-
(a)he is not eligible to be a member of the Village Panchayat even though he is resident in J&K for 40 years;
(b)he is not eligible to take part in State Elections;
(c)he cannot purchase land in Jammu and Kashmir;
(d)under Rule 17 of the Jammu and Kashmir Civil Service Recruitment Rules, he is not entitled to any Government post.
The Supreme Court was itself shocked at this inequitable provision. However, in view of Article 35A, it expressed its inability to do anything in the matter. Article 35A gives a blank cheque to the Jammu and Kashmir Government with regard to permanent residents. Approximately 8% of the population of Jammu & Kashmir are persons like Kalgotra. All these persons are deprived of virtually all benefits, scholarships and other rights that were enjoyed by the ‘permanent residents’ of Jammu & Kashmir. It is a supreme irony that while Parliament has limitations on its powers, there are no such restrictions on the Jammu and Kashmir Assembly to practise this kind of discrimination which is clearly violative of the fundamental rights of the citizens of India.. For further details, the interested reader may refer to the decision reported as Bachan Lal Kalgotra v State of Jammu and Kashmir AIR 1987 SC 1169.
Article 370 and economic and social consequences:
Article 370 does no more than enable the Government of Jammu and Kashmir to determine which of the laws passed by the Parliament would become applicable to the State. To be fair, the Constitution (Application to Jammu and Kashmir) Adoption Order, 1954 has now made several Central Enactments applicable to the State of Jammu and Kashmir. At the same time, there are several other provisions which are not applicable at all. Socially and politically, Jammu and Kashmir is thus isolated from the main stream of Indian life. In terms of the economic well being of the people in Jammu and Kashmir, the consequences have been disastrous. This can be verified by empirical evidence. In his book, "My Frozen Turbulence", Shri Jagmohan, the former Governor of Jammu and Kashmir has given certain details pertaining to the financial year 1989-90. This data reveals the financial mess that the the finance of the State Government is in and also the lopsided assistance that the people of Jammu and Kashmir get in contrast to other States.
In 1989-90, the total revenue of the State of Jammu and Kashmir was Rs.239 crores whereas the salary bill for the same year was Rs.277 crores. Thus, the State resources are unable to even meet the salary of its staff. In that same year, the State Government got Rs.1003 crores as Central assistance by way of grants and loans. In the same year, the per-capita Central grant for Jammu and Kashmir was Rs.1,122/- while it was Rs.425/- for Assam, Rs.109/- for Bihar, Rs.99/- for Uttar Pradesh and Rs.67/- for West Bengal.
There is no reason to believe that the proportionate figures would be different today. Over the last 12 years, there is no evidence that such substantial Central grants have resulted in more economic prosperity for Jammu and Kashmir. There is also no data of the amount that actually reaches needy persons and how much is siphoned away through leakages on account of corruption.
Repeal of Article 370:
It is generally believed that Article 370 cannot be amended. This is incorrect. Article 370(3) itself enables the President to declare that Article 370 would cease to be inoperative either fully or with such exceptions or modifications. The proviso to Article 370(3) requires the recommendations of the "Constituent Assembly" before the President issues such a notification. The Constituent Assembly was formed and the Jammu and Kashmir Constitution has also come into force in 1957. Consequently, the Constituent Assembly has ceased to exist as a Legislative Body. With the proviso becoming inoperative, it is clear that there is no bar on the President issuing a notification fully or partially declaring Article 370 to be inoperative.
Apart from such a notification, it is open to the Union Government to delete Article 370 by an amendment of the Constitution itself. If the Privy Purses could be abolished, then there is no reason why Article 370 cannot meet the same fate. The Princely States joined India on the express guarantee that they would be given an annual sum, free of taxes as a Privy Purse. This amount was charged on the Consolidated Fund of India. Article 362 cast an obligation on both the Central and State Legislatures to have regard to the guarantees and assurances given to the erstwhile Rulers of the Princely States. In other words, the laws which were enacted in independent India would have to take into account the rights, privileges and dignities of the Rulers of the former Indian States. Despite the solemn guarantees and assurances given to these persons, the Privy Purses were initially abolished by a Presidential Order. This which was struck down by the Supreme Court in Madhava Rao Scindia v Union of India AIR 1971 SC 533. To overcome this decision, Parliament amended the Constitution itself and the Constitution (26th Amendment) Act, 1971 deleted Articles 291 and 362 provisions that guaranteed the Privy Purses. This amendment was subsequently upheld in Raghunathrao Ganpatrao v Union of India AIR 1993 SC 1267.
The Supreme Court made it clear that guarantees given to the Princes would not bind Parliament from amending the Constitution if it was necessary to do so. It also held that by abolishing Privy Purses, the amendment promoted equality as there would be no difference between the former Princes and the common man.
The same logic would apply to deletion of Article 370. If challenged in a court of law, it would be difficult to strike down such an amendment in view of the decision upholding the abolition of Privy Purses. If the solemn guarantee given to the previous rulers had no value, the position of Jammu and Kashmir is even worse. Article 370 itself is titled to be a temporary provision. There is no difference in the Instrument of Accession signed by Maharaj Hari Singh and the other Rulers. Lastly, there is no reason why Jammu and Kashmir continue to have a special status after 50 years.
Abolition of Article 35A- more important:
The major attention in the media is focused on repealing Article 370. It is submitted that even if Article 370 continues, it is of extreme importance that immediate steps are taken to abolish Article 35A which affects 8 to 10% of the population of Jammu and Kashmir. If the proposed Resettlement Bill is implemented, it would make matters worse and thousands of persons who are in Pakistan can now cross over to India and claim full privileges which would not be available to thousands of Hindus who have come back to India over 50 years ago. Even if there is some historical logic for enacting Article 370, there is absolutely no justification for continuing the perverse provisions of Article 35A. This Article must be amended immediately so as to reduce the inequality and the hardship faced by the people of Jammu and Kashmir who are not "permanent residents".
The situation in Jammu and Kashmir continues to lurch from crisis to crisis. The recent Indo-Pak crises has removed the spotlight from Jammu & Kashmir and shifted to Delhi. Killing of innocent people and the security forces continues unabated. The recent cease fire was a disastrous step. Thousands of persons have been forced to flee the valley completely altering the demography of the region. However, it is beyond the scope of this paper to suggest any political solution.
Legally, it is suggested that a step by step process must start for dismantling the special status given to Jammu and Kashmir. First, Article 35A must be deleted and the concept of permanent residents must be abolished. Slowly, the State must be fully integrated into the Indian Union. Keeping Jammu and Kashmir isolated will only aggravate matters. The autonomous status of Jammu and Kashmir has unfortunately become a prestige issue. It is said to be necessary to protect the Muslim community. There is not a single scheme that will enhance the security or promote economic growth that requires the crutches or the special protection of Article 370 or Article 35A. On the contrary, the interest of the people of Jammu and Kashmir will be served better by deleting Articles 35A and 370.
SHRI ARVIND DATAR (verbatim transcription of a part of the talk)
Hon’ble Minister of State for Home Affairs, Shri Swamy, my senior colleague, respected colleague Shri Habibulla Badsha, Shri Parthasarathy, ladies and gentlemen. I must thank ‘Vigil’ and Cifjkindia for inviting me to speak at this important seminar. Mrs. Rajan has made a passionate plea to take up a clear attitude to the problem. My brief as a lawyer is to explain the scope and ambit of Article 370 and I will try to make as clinical an analysis as possible. It is very difficult not to be emotional about J&K. but I will try to be as objective as possible.
When India became independent in 1947 and subsequently a republic in 1950, none of our leaders would have imagined that the state of J&K would become a living hell with total chaos for the people there and disastrous economic consequences for the rest of the country. We are here now to discuss, at least I am here to talk to you all about Article 370. And coming straight to the subject, Article 370 is contained in part 21 of the Constitution of India. This part deals with what is called in the Constitution, “Temporary, Transitional and Special Provisions”. Article 370 is titled “temporary provisions for J&K”. I don’t propose to discuss this article clause by clause. Briefly speaking, the article says it is a temporary provision. It says that several parts of the Indian Constitution will not apply to J&K; defense, external affairs and communications which were a part of the Instrument of Accession, with respect to these subjects alone, will parliament have the right to make laws for J&K. With regard to all other subjects, parliament may make laws for J&K only with the concurrence of the state assembly. In other words, let us assume that Article 370 applied to Tamil Nadu and were Parliament to make some law with regard to income tax, it would not be binding upon Tamil Nadu unless it had the concurrence of the state assembly which would also have the right to say, sorry we don’t need income tax in our state. That is the scope of Article 370.
We keep talking of Article 370 as being the problem but let me tell you that it is Article 35A of the Indian Constitution which is the real problem. And what does this article say, which all of us lose sight of. In J&K, there is a concept of ‘permanent residents’. If you studied Part 3 of the J&K constitution, section 6-11 deals with those considered ‘permanent residents’. Now I don’t want to go into great details about who or what constitutes ‘permanent residents’. The cutoff date for classifying permanent residents is May 1954. They have what are called Class I, Class II and Class III subjects, those that left the state before March 1947 and so on. I will make mention only of the simple fact that there is a section of Kashmiris who are called permanent residents. Now article 35A says that the government of the state of J&K can make any law with regard to these permanent residents in particular, the constitution of J&K can provide for special provisions for these permanent residents with regard to what – with regard to employment in the state, to acquisition of property, with regard to settlement in the state, and lastly with regard to scholarships and loans which may be given to these permanent residents exclusively. And what is most shocking is that this article 35A of the Indian Constitution is contained in the chapter on fundamental rights and this article says, even if the J&K government discriminates in favour of the permanent residents and to the detriment of its other people, this deprivation, this discrimination, why even this provision cannot be challenged in any court of law.
I will give you a real life example, which came up for hearing in the Supreme Court. A person by name Bachchanlal Kalgotra at the time of Partition migrated to J&K in 1947. He does not qualify to be a permanent resident as per the J&K constitution. He had been living in that state for 40 years and was still not eligible to be elected to the state assembly. As per the J&K constitution, he is not entitled to be elected to the state panchayat, he cannot acquire property because as per the J&K Land Alienation Act there can be no transfer of property in favour of anyone who is not a permanent resident. He is also disqualified from employment in the state government because Rule 17 A of the J&K Civil Services Rule states that if you are not a permanent resident of J&K you are not eligible for recruitment to state government jobs. Bachchanlal challenges this blatant discrimination in the Supreme Court and on 20th February, 1987, the Supreme Court delivers the judgement. It expresses its shock, it says this is a totally absurd and anamolous situation. Look at the paradox. Bachanlal has migrated to India in 1947 and is not entitled to any of the basic rights that any resident in any part of India is entitled to – to own property, to apply for government jobs, to claim loans and scholarships, to be elected to the state panchayat or assembly, But those of the Kashmiris who chose to leave India and migrated to Pakistan in 1947 and then subsequently decided to come back to J&K or may even now choose to come back, after 55 years, if they were permanent residents then, they are permanent residents now and are eligible for all benefits. The Supreme Court recognizes the weight of Bachanlal’s plaint but pleads helplessness to render him justice. The Supreme Court declares that because of Article 35 A of the Indian Constitution it cannot give him any relief and dismisses the petition.
Therefore it may not be enough to just abrogate Article 370. The real mischief lies in the sinister provisions of Article 35 A. Now what is the legal justification for Article 370 and Article 35 A? Allow me to take recourse to legal flashback and go down memory lane. Mrs.Rajan mentioned the Instrument of Accession. Just a few details here in this regard. On the third June 1947, the British government announced that it would transfer power to the people and that this would take place on the 15th of August, 1947 and also that two dominions would be created – the dominion of India and the dominion of Pakistan. Now this was alright as far as ‘British India’ was concerned – those provinces like the Madras and Bombay provinces which were under the direct executive, legislative and judicial control of the British government. But what about the princely states? The princely states constituted 48% of the total landmass of India and roughly 30% of the total population at that time. The Indian Independence Act of 1947 gave the princely states three options – they could accede to India, accede to Pakistan, and what is very important and often forgotten, they could also choose to remain independent. And it was the prerogative of the rulers of the princely states to choose the future political status. On June 26, 1947, Lord Mountbatten called for a meeting of the princes and he advised them that in their own interests it would be better for them to accede to either Pakistan or India depending on the geographic contiguity of their states with either of the dominions. And also because many of the princely states did not have the economic resources to remain independent. If you read the history of the privy purses, the largest was that of the Maharaja of Mysore – Rupees 26 lakhs. The privy purse was based on a percentage of the total state earnings and while the Maharaja of Mysore received the largest purse, the smallest was to the Raja of Katodia, who received Sixteen rupees a month as a tax free privy purse. Nearly 400 of the 500 odd princely states did not have the economic resources to survive independently and by the 15th of August, as Mrs. Rajan mentioned, due to the heroic and fabulous efforts of Sardar Patel, almost all states had acceded to either India or Pakistan.
Jammu and Kashmir did not do so. On the 12th of August, just three days before independence, Maharaja Hari Singh of J&K sends telegrams to the governments of India and Pakistan proposing to them a “standstill arrangement”. This in effect meant that J&K would stand still – it would neither accede to India or to Pakistan and would take an appropriate decision at some future date. That was the proposal. On the 20th of October, a huge army of invaders, the so called ‘tribesmen’ from Pakistan invaded J&K with bren guns, sten guns and weapons of the kind which tribesmen could never own unless supported and provided for by the armed forces of a State. I don’t want to go into details of the international dimensions here but the long and short of it was that on the 26th of October, the Maharaja of J&K signs the Instrument of Accession to India because he needed the Indian government to help him to ward off the threat posed by the Pakistani invasion. Legally speaking therefore the Maharaja of J&K had acceded to India by signing the Instrument of Accession. The subsequent events in J&K, is thereafter a history of tragedy after tragedy not only for the state but also for our country.
For some inexplicable reason, when Maharaja Hari Singh wrote to Lord Mountbatten, enclosing the Instrument of Accession, he mentions that, he had in the beginning, decided not to accede to India or Pakistan because it was his considered view that it was in the interests of both India and Pakistan that he remain independent. For reasons totally beyond my comprehension, Lord Mountbatten in his response to the Maharaja’s letter writes to him saying that when normalcy is restored, and the valley is cleared of the invaders my government wishes to ascertain the wishes of the people of the state with regard to the accession.
(Shri Arvind Datar was kind enough to give us the text of his talk which has been uploaded before this version.)
KASHMIR – A PARADISE AT THE CROSS ROADS
Mr. HABIBULLAH BADSHA, Senior Advocate
The Jammu and Kashmir problem has become a very complex issue due to several factors. Before we deal with the question of Article 370 Terrorism etc., we have to briefly go into the historical aspects, which led to the introduction of Article 370 of the Constitution of India. In accordance with the Cabinet Mission Plan of May 1946, following partition, Kashmir bordering on both India and Pakistan had, like any other state, three alternatives, to assert complete independence, to accede to Pakistan, or to accede to India. Power to take the decision vested in the Ruler.
The State of Jammu and Kashmir did not accede to either dominion by the 15th of August 1947 and so became independent from that date. Both India and Pakistan were trying to persuade the Maharaja of Kashmir to accede to their country. The then Maharaja Hari Singh of Kashmir wanted to remain independent. The Maharaja was procrastinating matters, in order to buy time. However, there was a revolt against the lethargy of the Maharaja in Poonch. Sheik Abdullah was one of the Kashmiris who was carrying on a relentless campaign against the autocratic rule of the Maharaja. He changed the Muslim Conference to National Conference in 1948. Mr. Sheikh Abdullah sought Pundit Nehru's guidance but the Congress Party had declared that it was not going to interfere in the struggle in the Indian Princely States. On 28.6.1938, a meeting of the Working Committee of the Muslim Conference was held in which Sheikh Abdullah moved a resolution suggesting to change the name of the Conference to 'National Conference' and to amend the Constitution so as to 'throw its doors open' to non-Muslims. The result was it became a secular party. Several developments took place including the Proclamation in February 1939 by the Maharaja to give more democratic-rights to the people. The promulgation of the Jammu and Kashmir Constitution Act on 7th September 1939 by the Maharaja was an important event. However, the fact was he continued to be an absolute Monarch in whom all powers in relation to the State were vested. The National Conference regarded the Constitution as inadequate. In 1941, the National Conference became a formal member of the All India State People's Conference, with affiliations in most Princely States. Thereafter Sheikh Abdullah had close contacts with the Congress leaders in India, particularly with Pundit Nehru. This association strengthened the nationalistic policies of the National Conference. Inspite of several attempts made by the Maharaja to associate the National Conference with the Government, the attempts did not succeed. Sheikh Abdullah became more strident in his criticism and he challenged the authority of the Maharaja himself. He said that the Maharaja must quit Kashmir and leave Kashmiris alone to decide the future by themselves. The Quit Kashmir Movement of the National Conference in Jammu and Kashmir was on the lines of Quit India Movement in British India. On 20th May 1946, Sheikh Mohammed Abdullah, along with other prominent leaders of the National Conference was arrested and a case of sedition was instituted against him and the prosecution stated.
"That the accused with the object and intention of bringing into hatred and contempt His Highness the Maharaja Bahadur and the Government of Jammu and Kashmir as established by law and with a view to exciting dissatisfaction towards His Highness the Maharaja Bahadur and the Government of Jammu and Kashmir as established by law convened public meetings of the National Conference in different parts of Srinagar City and its suburbs on 9th, 10th, 13th, 14th and 16th of May 1946 (and on many other places as well) in which he addressed the assembled people."
Sheikh Abdullah pleaded 'not guilty' and gave a lengthy statement in which he admited having demanded a "responsible Government".
The tension was so great in Jammu and Kashmir that even Pundit Nehru was not allowed to come to Kashmir when he tried to do so on 18.6.1947. He was prevented by orders of the Maharaja. In fact, he was arrested and kept in detention for two days. When pushed into a tight corner, the Maharaja had no other go but to take a qualified letter of apology from Sheikh Abdullah and release him on 29th September 1947. Sheikh Abdullah was not inclined to join Pakistan and stated clearly that neither the Muslim League nor Mr. Jinnah could tell them to accede to Pakistan.
When the Maharaja was still vacillating, Pakistan brought trouble on itself.
On 20th October 1947, a large column of several thousand tribesmen armed with 'bren guns, machine guns, mortars and flame throwers, attacked the frontiers of the State. They were obviously aided by Pakistan. The tribal invasion caused great devastation. Maharaja Hari Singh was alarmed and it was a danger of him being exterminated. The raiders were now fast approaching Srinagar, the summer capital of Kashmir. The Dogra Army and the National Militia, which was a volunteer Militia force formed by the National Conference tried to hold the enemy's on rush but prolonged resistance to well trained and well equipped invaders was out of the question. The invaders were meanwhile pushing ahead, destroying and looting whatever came their way. The National Conference could not match the ferocity of the invaders. The Maharaja then realised that his dream of an independent State was an illusion and a mirage. The Maharaja left Srinigar on 25th October 1947 and went to Jammu, the Winter Capital of Kashmir. He left his beloved people to face the crisis. He appointed Sheikh Abdullah, the emergency administrator before leaving. Sheikh Abdullah advised the Maharaja that if the State was to be saved, he must accede to India and ask for immediate military help. Faced with such a crisis, the Maharaja had no other option but to write to Lord Mountbatten, the governor-general of India. He requested help from India and acceded to the Dominion of India. He attached to his letter the Instrument of Accession for acceptance by the Government of India. He also informed Lord Mountbatten that it was his intention to set up an interim Government and to ask Sheikh Abdullah to carry the responsibilities in the emergency, with the Prime Minister. Lord Mountbatten accepted the Instrument of Accession and it was dated 27.10.1947. However, Lord Mountbatten while replying to Maharaja Hari Singh stated that the question of accession should be decided as per the wishes of the people of the State. He added that it was the Government's wish that as soon as law and order had been restored in Kashmir and its soil cleared of the invader, the question of State's accession should be settled by a reference to the people. This was a forerunner of the problem, which ensued later. From a reading of the letter, it would appear that the decision was not final and a subsequent decision had to be taken by the people of India. The Maharaja offered to accede on the three subjects, viz., defence, civil force and communication. Pakistan however, was very upset and did not accept this position.
Accession of the State of Jammu and Kashmir to India made it obligatory for the people of India to defend the State. On the very day of accession, Indian troops were flown to Kashmir Valley to drive out the invaders. Though Pundit Nehru made conciliatory moves to Liaquat Ali Khan, the then Prime Minster of Pakistan, there was no cooperation from the other side. Series of allegations and counter allegations followed.
Lord Mountbatten urged Pundit Nehru to move with caution and restraint. He pointed out that war would be a set back for Pundit Nehru's independent foreign policy and progressive social aspirations. Pundit Nehru considered Lord Mountbatten's advice and on his suggestion decided to lodge a complaint to the Security Council. The Security Council passed a resolution on 17.1.1948, which both India and Pakistan accepted.
In this Resolution, the Security Council called upon India and Pakistan "to take immediately all measures within their power (including public appeals to their people) calculated to improve the situation and to refrain from making any statements and from doing or causing to be done or permitting any acts, which might aggravate the situation".
On 27.1.1948, India and Pakistan submitted draft proposals to the President of the Security Council on the appropriate methods of solving the Kashmir Dispute. It was in this proposal that India agreed to the holding of a plebiscite in Kashmir as the ultimate determinant of Kashmir's status. The Indian representative observed on the floor of the Council "In accepting the accession they (India) refused to take advantage of the immediate peril in which the State found itself and informed the Ruler that the accession should finally be settled by plebiscite as soon as peace had been restored". It was this action of the Government of India, which has landed us into trouble and Pakistan has been stating every time that we had agreed for plebiscite.
On 21st April 1948 a Resolution was passed by the Security Council calling upon Pakistan "to use its best endeavour" to secure the withdrawal of tribesmen and Pakistan nationals, to prevent any "further intrusion" into the State, and to refrain from aiding "those fighting in the State". India was permitted "a minimum force to aid the Government of Kashmir in the maintenance of law and order." India's withdrawal of its forces was, however, not to begin until after the Commission (and not Pakistan) was satisfied that "the tribesmen are withdrawing and that arrangements for the cessation of fighting have become effective".
Next followed the Resolution dated 13th August 1948, which was a significant landmark in the history of the Kashmir conflict. Another Resolution dated 5th January 1949 was passed as a supplement to the Commission's Resolution of August 13, 1948. It is in this supplementary Resolution, that it is clearly mentioned that "The question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite". However, clause 2 very specifically stated that "A plebiscite will be held when it shall be found by the Commission that the cease-fire and truce arrangements set forth in Parts I and II of the Commission's Resolution of August 13, 1948 have been carried out and arrangements for the plebiscite have been completed".
An American, Admiral Nimitz, was chosen as Plebiscite Administrator. No work was however done and he finally resigned in the end of 1954 and no successor was appointed. In the meanwhile, in 1950, the Commission had been wound up and a single mediator appointed to take its place.
Pakistan has been making repeated references to the Resolution of the United Nations referred to above and has repeatedly insisted on self-determination by the Kashmir people. In other words, they want a plebiscite to be held in Kashmir. However, Pakistan cannot ask for plebiscite when it failed to carry out the obligations, cast on it to withdraw its troops from territories of Kashmir. This was a condition precedent before the question of plebiscite could be considered.
Sheikh Abdullah had however stated that the accession to India was final and there was no question of reopening the Issue. Even as late as February 11, 1975, he stated that the accession was not a matter in issue and that there was a firm belief that the future of Jammu and Kashmir lies with India because of the common ideals that they shared. It is important to point out that internal administration of the State was even after the accession, being governed by the Jammu and Kashmir Constitution Act, 1939. By Proclamation on March 5, 1948 Sir Hari Singh expressed his desire to replace the Emergency Administration by a popular interim government.
In 1949, the Indian Constituent Assembly was coming to the end of its task. A large number of Indian States had been represented in the Indian Constituent Assembly from the beginning and had taken their share in the framing of the Constitution. The Government of India conferred with the States and after detailed discussions, it became obvious that the subjects of the States desired their constitutions to form a part of the Indian Constitution. In June 1949, the Yuvaraj, on the advice of his Council of Ministers nominated four representatives to the Indian Constituent Assembly. Unlike those from the other States, Kashmir's representatives made it clear that Kashmir's association with India would be based only on the terms of the Instrument of Accession. It meant that though the accession was complete in fact and in law, it would apply to the subjects enumerated in the Instrument of Accession. The autonomy of the State concerning all other aspects outside the ambit of the Instrument of Accession should be preserved. Clause 7 of the Instrument of Accession clearly states as follows: "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 is therefore clear that the Government of Kashmir did not accept the Constitution of India as the Constitution of their State. Despite the accession, the State was still to be governed by the Old Constitution Act, 1939. This was because the Government of India had given an undertaking that the people of Kashmir can frame their own Constitution.
The Government of India could not force the State to accept the Constitution, for that would violate the agreed terms of the accession of Kashmir to India. The State had voluntarily surrendered three matters only and the Government of India could not enlarge the sphere of its Jurisdiction at its own discretion.
One must understand the immediate situation in which the Indian Government was placed. A vacillating Maharaja was almost forced to accede to India due to the tribal invasion and the attitude of Sheikh Abdullah. He still cherished the dream of being independent. India was a nascent country at that stage and did not want to get into a large-scale war with Pakistan. Thirdly, Lord Mountbatten had advised caution and Pundit Nehru, the large-hearted Indian that he was, did not want to endanger India's position in the international sphere by engaging Pakistan in a full-scale war. Fourthly, India on the advice of Lord Mountbatten had approached the Security Council and the Security Council had passed a Resolution. From the letter of Lord Mountbatten to the Maharaja Hari Singh, it was clear that the British were still of the opinion that Kashmiris could decide their fate in future and it appeared as if the accession was not final. Hence, the whole Kashmir problem hinged around the accession and if the Government of India at that stage took strong steps, the fragile fabric of accession and stability would have been destroyed.
It is very easy to blame the Government of India for the steps that it took. The Government of India should not be criticised for that. At that point of time, it had no choice but to act as it did.
Shri Gopalaswamy Ayyangar in debates in the Constituent Assembly clearly stated that all the other States had been integrated with the Federal Republic in such a manner that they did not have to accede or execute a document of accession for becoming units of the Republic. He further stated that it would not be so in the case of Kashmir, since that Particular State was not yet ripe for that kind of integration, due the social conditions prevailing in Kashmir. He stated that firstly there has been a war going on within the limits of Jammu and Kashmir State and part of the State was still in the hands of the enemies and secondly, the Government of India has committed themselves to the people of Kashmir in certain respects. It was under these circumstances that Article 370 was discussed and adopted. The future relations of India with Kashmir would be governed by this Article, which is clearly based on the Instrument of Accession. The Article still exists in the Constitution. The power of the Parliament to make laws for Kashmir was limited to those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State. The President may also make laws with respect to such other matters in the said lists, with the concurrence of the Government of the State.
According to Sardar Vallabhai Patel, this Article was a device to continue the existing relationship of the Jammu and Kashmir State with the Union of India.
Article 370(2) provides as follows:
"If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of Clause (1) or in the second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon."
The Article has been described as a temporary provision of the Constitution of India. This is because the power to finalise the constitutional relationship between the State and the Union of India had been specifically vested in the Jammu and Kashmir Constituent Assembly. The Constitution of India clearly envisaged the convening of a Constituent Assembly for Jammu and Kashmir State and also provides that whatever modifications, amendments or exceptions that might become necessary either to Article 370 or to any other articles in the Constitution of India in their application to Jammu and Kashmir State were subject to the decision of that Assembly. Therefore in my view it follows that though the provision is termed as temporary, it is not capable of being abrogated, modified or replaced unilaterally. This is a Charter of Rights, which the Constituent Assembly in its wisdom bestowed upon the people of Kashmir and hence, it will be a breach of that trust if it is sought to be abrogated, without the concurrence of the State of Kashmir. In law and in fact, therefore the abrogation of Article 370 will not be possible.
In AIR 1959 SC page 749 Prem Nath Kaul versus State of Jammu and Kashmir, the Supreme Court stated as follows:
"The effect of the application of the present article (Article 370) has to be judged in the light of its objects and its terms considered in the context of the special features of the constitutional relationship between the State and India. The Constitution makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself…."
The Supreme Court further reiterated in AIR 1970 SC 1118 - Sampat Kumar versus State of J & k that Article 370 is a special provision for amending the Constitution in its application to the State of Jammu and Kashmir. Article 368 does not curtail the power of the President under Article 370. The matters over which the Union Parliament had to make laws for the State were basically the matters already covered by the Instrument of Accession, namely "defence, external affairs, communications and the like matters". On 14.5.1954, the President of India acting under Article 370 issued an order endorsing the relationship of Kashmir with India, as defined in the Delhi Agreement. Although by this order, the powers of the Union Parliament in relation to Kashmir were enlarged and most of the provisions of the Indian Constitution were applied to the State, yet, the internal autonomy of the State was not interfered with.
Several orders have been issued by the President of India in exercise of the power conferred under Article 370(1)(b)(ii) and specified the matters with respect to which the Parliament will be competent to make laws for the said State. It is not necessary to go into all these orders because from time to time, certain laws were made applicable to the State of Jammu and Kashmir. The fact remains that the State of Jammu and Kashmir enjoys a special position in the Union of India.
Examining the overall perspectives of Articles 370 and 371, we have to conclude firstly that Article 370 gives special autonomy powers to the State of Jammu and Kashmir. Article 371 gives similar autonomous powers to at least six other States, namely Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim and Mizoram. These autonomous powers enable the concerned States to function outside several constitutional parameters. Secondly, it is not the State of Jammu and Kashmir alone who has been given greater autonomy. Thirdly, it is not only the border States such as Sikkim and Arunachal Pradesh where abnormal conditions could be likely to exist, which have been blessed with special powers, but also a State like Andhra Pradesh. Hence, it cannot be construed that a special status has been gifted to the State of Jammu and Kashmir alone as a reward for acceding to India.
There were several vicissitudes in the relationship between Sheikh Abdullah and Pundit Nehru. Sheikh Abdullah, was destined to be imprisoned for most part of his life either under Hari Singh or under the Government of India. From 1953 to 1958, he was in prison under the State Preventive Detention Act. He was released four years later in 1958 but shortly re-arrested on a charge of "conspiracy to overthrow the Government". He was ultimately released.
The Kashmir conspiracy case came to an abrupt end and Sheikh Abdullah and others who were arrested were released. Some dramatic developments took place thereafter. There were dialogues and talks between the then Prime Minister of India, Smt. Indira Gandhi and Sheikh Abdullah so as to secure "the active cooperation and involvement of all democratic, secular and progressive forces in the country". By virtue of the dialogue, an Agreement was arrived at with respect to certain matters between the Prime Minister of India and Sheikh Abdullah. This Agreement came to be known as the Kashmir Accord. In the text of the Agreement dated 13.11.1974, it has been clearly stated that (1) the State of Jammu and Kashmir which is a constituent unit of the Union of India, shall in its relations with the Union, continue to be governed by Article 370 of the Constitution of India. (2) The residuary powers of legislation shall remain with the State, (3) Where any provision of the Constitution of India had been applied to the State of Jammu and Kashmir with adaptations and modifications, such adaptations and modifications can be altered or repealed by an Order of the President under Article 370, each individual proposal in this behalf being considered on its merits; but provisions of the Constitution of India already applied to the State of Jammu and Kashmir without adaptation or modification are unalterable. It is seen that the autonomy of Kashmir was retained. After the Kahmir Accord, an Agreement was reached between the Congress (I) and the National Conference, concerning the Government of the State of Jammu and Kashmir. Syed Mir Qasim, who was the Congress (I) Chief Minister, of the Jammu and Kashmir State, agreed to step down, to enable Sheikh Abdullah to form the Government in the State of Jammu and Kashmir. Consequently, Sheikh Abdullah was invited by the Governor to form the Government in February 1975. The Government of Sheikh Abdullah was supported by the Congress (I) in the Assembly. However, because of the political developments in the rest of the country, in 1977, the Congress (I) withdrew its support to the Government, because of which the Government fell and on the advice of Sheikh Abdullah, the Governor of the State, Shri L.K. Jha dissolved the Assembly. The Governor of the State being of the view that there had been a break down of the constitution in the State, assumed the administration of the State to himself and Governor's Rule followed in the State. However, in the elections that were later held in 1977, the National Conference returned to power with an absolute majority and again Sheikh Abdullah formed the Government in the State. He remained the Chief Minister until he died on 8th September 1982. Thereafter his son took over as Chief Minister on 9th September 1982. However, due to some political manipulations, his brother-in-law, G.M. Shah with the help of a few members split the party and was installed with the help of the Indian National Congress to form the Government in 1984. This was the start of the unrest and dissatisfaction of the people. Until then there was no militancy whatsoever worth the name in Kashmir. G.M. Shah however, could not carry on with the Congress party due to which he had to step down in November 1986. Consequently, the Assembly was dissolved and fresh elections were held in March 1987. This time Dr. Farooq Abdullah aligned himself with Shri Rajiv Gandhi and won the election. This was however not appreciated by several parties at the Centre and many of the groups in Kashmir. In the year 1989 the internal security of the State was threatened by militant activities due to which Governor's Rule was imposed, which remained in force till October 1996, when elections took place in the State to restore the Parliamentary Government, after an unprecedented turmoil of seven years. This time again the National Conference came to power after getting two-third majority. Dr. Farooq Abdullah was sworn in as Chief Minister of the State on 9th October 1996.
It is clear from the political developments of Kashmir State that till Sheikh Abdullah was alive, he had a strong hold on the people of Kashmir. Although his relationship with the Government of India was not happy from time to time, he nevertheless managed to keep his firm grip on the State of Kashmir. No other leader, other than Sheikh Abdullah was able to make an impact on the minds of the Kashmiri people until he was alive. He was a hero to the Kashmir people. Whatever he did was in the interest of Kashmir and he never wavered in his belief that Kashmir was an integral part of India. Trouble only started due to the political upheaval caused in the State due to the installation of G.M. Shah as Chief Minister. After the hostile atmosphere started, militancy raised its ugly head. Due to the political manipulations indulged in, the people of Kashmir felt that their identity was in danger and this led to discontent. Neither the State Government nor the Government in Delhi ever addressed themselves to the problem of the feeling of discontent and economic, educational and social deprivation of the people of Kashmir. This naturally led to the growth of militancy. Of course Pakistan, which also always liked to fish in troubled waters gave support from across the border and created more trouble.
One must understand that militancy or terrorism does not grow in a vacuum. It is because the people feel that their legitimate rights, their poverty and their troubles have not been solved that discontent arises. Whether it is Punjab, or the North East regions or Kashmir or areas infested with naxalites, it is not merely terrorism perse. The neglect of the people's rights like liberty and failure to remove the shackles of poverty, educational and social backwardness that resulted in militancy challenging the power of the Government. History is replete with examples of how this kind of guerilla warfare cannot be put down by force. We have seen this happen in Palestine, in Ireland, in Srilanka, in Cuba, in Nicaragua, in Spain, in Indonesia, in Iran and in every part of the world. Wars can win territories but never the hearts of people.
The Constitution of Jammu and Kashmir came into existence in 1957. Section 3 of The Constitution of Jammu and Kashmir, 1957 (hereinafter referred to as the Constitution of Jammu & Kashmir) clearly states that the State of Jammu and Kashmir is and shall be an integral part of the Union of India. Under Section 4 "The territory of the State shall comprise all the territories which on the fifteenth day of August 1947, were under the sovereignty or suzerainty of the Ruler of the State". Under Section 5 "The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the Provisions of the Constitution of India". Section 6 defines who the permanent residents are. Section 10 clearly states that the permanent residents of the State shall have all the rights guaranteed to them under the Constitution of India, which means that they are entitled to the Fundamental Rights guaranteed in Part III of the Constitution of India. The Constitution has clearly separated the powers of the executive, the legislature and the judiciary. Section 26 defines "The Head of the State" as the Governor and states that the executive power of the State shall be vested in the Governor. This is pari materia with Articles 163 and 164 of the Constitution of India. Section 27 provides for the Governor to be appointed by the President by warrant under his hand and seal. This is pari materia with Article 126 of the Constitution of India. Section 35 deals with the Council of Ministers, which is pari materia with Article 163 of the Constitution of India. Section 46 deals with Legislature for the State and it is pari materia with Article 168 of the Constitution of India. Thereafter there are various Sections, which deal with the composition of the legislature, the disqualification of members etc. These have been modeled on the various provisions of the Constitution of India. Section 92 is an important provision, which provides for as to what would happen in case of failure of constitutional machinery in the State. If at any time the Governor is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the Governor may by Proclamation assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by anybody or authority in this State. Under Sub clause 5 "No proclamation under sub-section (1) shall be issued except with the concurrence of the President of India."
The Constitution of the Judiciary and its powers are dealt with at Section 93 of the Constitution of Jammu and Kashmir. Section 93 states that there shall be a High Court for the State, consisting of a Chief Justice and two or more other Judges. Sections 93 and 94 are pari materia with Articles 214 and 216 of the Constitution of India. Under Section 95 every Judge of the High Court will be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. This is in pari materia with Article 217 of the Constitution of India. Under Section 103 of the Constitution of Jammu and Kashmir, the High Court has powers to issue various Writs. This is in pari materia with Article 226 of the Constitution of India.
The Supreme Court of India occupies the same position and status in Jammu and Kashmir State as in the rest of India and is the final Court of Appeal even for this State. The Original and Appellate Jurisdiction of the Supreme Court extends to the State of Jammu and Kashmir with a slight difference in so far as the Appellate Jurisdiction in criminal matters is concerned. In the case of Jammu and Kashmir any additional powers, which are conferred on the Supreme Court extends to the State of Jammu and Kashmir only if there had been a request from the State's legislature to that effect. The right of Appeal by Special Leave under Article 136 has been extended to the State of Jammu and Kashmir with effect from 26th January 1960.
Before 1954, the High Court in Kashmir had no Writ Jurisdiction at all and after 1954 (i.e. after the Constitution (Application to Jammu and Kashmir) Order, 1954 and before 1957 (before the Constitution of Jammu and Kashmir came into force), the High Court of Jammu and Kashmir did not possess any power to issue Writs for any purpose other than those of the enforcement of the Fundamental Rights. After the Constitution of Jammu and Kashmir, 1957 came into force, the High Court of Jammu and Kashmir got the powers to issue Writs, Orders and directions for "any purpose other than those mentioned in clause 2 of Article 32 of the Constitution of India." (Article 32A states constitutional validity of State laws not to be considered in proceedings under Article 32. This proviso was inserted by Constitutional (42nd Amendment) Act, 1976. This was however omitted by the Constitution (43rd Amendment) Act, 1977.) With this provision, the position is the same as in other States of India.
Part X of the Constitution of Jammu and Kashmir deals with Elections. The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to either House of the State Legislature held under this Constitution shall vest in the Election Commission of India. Thus, it is clear from the salient features of the Constitution of Jammu and Kashmir that Jammu and Kashmir is an integral part of India. Governors have to be appointed by the President of India, the High Court Judges are appointed by the President of India, the elections are subject to the control of the Election Commission of India, the people of Kashmir have the same Fundamental Rights as those of the people of India as in Part III of the Constitution, the High Court has the power to issue Writs in the nature of Certiorari, Mandamus, Habeas Corpus etc.
Therefore, it is not known how anybody can argue that Kashmir is not an integral part of India or its accession to India is not complete. The Constitution of Jammu and Kashmir was made with the will of the people. The Constituent Assembly reflects the will of the people. When the Constituent Assembly of Jammu and Kashmir decided that Kashmir is an integral part of India, no one in the world including Pakistan can say that the question is open and the will of the people should be ascertained again. This is neither practicable nor legally correct and Pakistan has no business to influence the Kashmiri people on communal basis, thereby harming their own interest. The will of the people of Kashmir has been very clearly codified in the Constitution of Jammu and kashmir. When such is the case, nobody can challenge the authority of the Government of India over Jammu and Kashmir. The Kashmiri people are our brothers and sisters like other persons residing in other States. They are no different from any other Indian. Hence, even the people of Kashmir, cannot now say that a plebiscite has to be held and that they want independence. It will amount to abrogation of the Constitution, which their own, Constituent Assembly has certified. This is not permissible under law. Hence, the territorial integrity of Kashmir, which has thrown its lot with the people of India, cannot be questioned. Kashmir is a part of India and will remain so. I do not know whether the Kashmiris themselves understand this aspect and whether we have taken pains to explain to them the provisions of their own Constitution.
The militants have been misled by a few disgruntled elements and due to the neglect on the part of the Government of India to pay attention to the economic, educational and social needs of the Kashmiri people. One has to see the poverty of the Kashmiri people, and then one can realise the hostility of the Kashmiris. One may very well ask what happened before militancy. Why did we allow things to deteriorate rapidly?
I have been to Kashmir in 1963. It has a special place in my heart. I spent my honeymoon there. I found that the Kashmiri people were the most friendly and docile people. They used to entertain me with stories. They held Pundit Nehru in high-esteem. Sheikh Abdullah and Nehru were the two heros. However, when I visited in 1984, I noticed a dramatic change in the minds of the people. They told me "You Indians do not care about us. You have neglected us. See our roads, our infra structure, our economy and our poverty. You are only interested in milking the State and taking the earnings from tourism. Tourists are also not coming because of the poor infra structure in the State. There are no major educational institutions or hospitals. Our economy is shattered. How do you expect us to be with India?" I told them that there could be a solution. They should project their ideas to their elected representatives. They said that they had lost faith in their elected representatives. This was the scenario in 1984. There was no militancy at that time. There was no terror lurking in any corner of Kashmir. All of us moved freely. The Kashmiris were hospitable people. Then what happened is the question? It is sad that due to political manipulations and power grabbing politicians, Kashmir became a fertile ground for disenchanted Kashmiris to take to the streets. It first started with peaceful protests and then the leadership passed into the hands of separatists and militants. Our army has been stationed for over 15 years. We read in the newspapers that militants have received a serious jolt and they have been exterminated. We have built all the barricades. There have been stories of political excesses and military excesses. We cannot push them under the carpet. They have to be dealt with seriously so that the confidence of the people is restored. The military will not solve the problem of Kashmir. We can fight against invaders, but not against our own people. We will have to win the hearts of the Kashmiris. This is a question, which we have to seriously consider.
This is not peculiar to Kashmir alone. It applies equally to the North East regions, the State of Andhra Pradesh and Bihar where the naxalites are active. The poverty of the people and their disenchantment leads them into the arms of the so-called saviours of the down trodden, who take to the gun to promote their own cause. What is happening in Kashmir is neither a freedom fight nor vendetta. The Kashmiri people are not guilty of terrorism but if anyone is guilty of terrorism, it is only the mercenaries in Kashmir.
If we try to abrogate Article 370 of the Constitution, this will only lead to disenchantment of the Kashmiri people. They will feel that this is one other step that the Government has taken to suppress them and to destroy their identity. The historical background, which I have set out and the Constitution of Jammu and Kashmir themselves makes it impossible to take such a drastic step. In any case, is it worthwhile now? My answer is no. If Article 370 has to be abrogated or removed, it should be done with the approval of the people of Kashmir. Otherwise, this will provide a handle to the anti-Indian elements to propagate the view that we are destroying the culture and identity of Kashmir, which we are not. Hence, let things be as they are. Let wisdom be our guiding light, and love and patience our two weapons with which to win the hearts of the people of Kashmir.
SHRI G.PARTHASARATHY, FORMER INDIAN HIGH COMMISSIONER TO PAKISTAN
Friends thank you very much for inviting me here to speak on J&K being an integral part of India. I left Chennai 38 years ago, when I completed my college education, moved on to the army and then to the Foreign Service and swore allegiance to the Constitution. And since Article 1 of the Indian Constitution says very clearly that J&K is an integral part of the Indian Union, there can be no discussion on this issue. And to reinforce that assertion we have the parliamentary resolution of 1994 which was passed unanimously and which stated unequivocally that the entire territory of J&K as it acceded to India in 1947, is an integral part of India. We are very fortunate to have with us today Minister Shri I.D.Swamy because in Delhi it has always been a pleasure to participate in discussions with him if only to learn from him how to put across all points polietly but strongly.
The thing I want to focus on really today is the external dimension, the Pakistan dimension of Kashmir. Because I found that in many parts of India there is a naïve approach to dealing with Pakistan. There is also this naïve tendency, I found, with the media of Chennai, to accept everything that the redoubtable Gen. Musharraf says. People forget that nothing that he says is accepted by his own people. But before coming to this let me just address myself to the legal framework of the UN Resolutions. There has been much discussion in this country on whether we should have gone to the UN at all with the problem created by Pakistan when it forcibly occupied large areas of J&K in 1947. We have to bear in mind that had we not gone then to the UN as the complainant, given the British propensity to play mischief, Britain may well have moved the UN as a situation having arisen threatening international peace and stability; in which case, any resolution passed then would have been a Chapter VII resolution of the UN, which would have been mandatory and binding upon us. I have a friend and colleague, Shekhar Dasgupta who is doing a lot of research into this period at the India Office Library. Incidentally, one of the documents that he came across was Nehru’s assertion that if Pakistan continued with its aggression, we would cross the LoC if the need arose and how that was subverted because the Indian army was commanded by a British officer then.
So since the Minister is here and we now have an Indian army chief, I hope he will bear these thoughts in mind when the need arises. Coming to the UN Resolutions itself, the most important resolution was that of August 13th, 1948. That resolution had three parts. The first part was the cease-fire. The second part was a truce agreement and part three was the question of the plebiscite. What is interesting is that Part II said and I quote: “As the presence of the troops of Pakistan in the territory of the state of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council, the Government of Pakistan agrees to withdraw troops from that state”. It also refers thereafter in another sub-para not just to the troops but also to ‘irregular’ invaders sent into the state by Pakistan. I wish to make here a distinction between the Pakistan State and its people because I have good friends in Pakistan whose friendship I cherish. But falsehood is a matter of state policy with successive governments of Pakistan. They denied in 1948 that they had sent in any ‘irregulars’ or even their troops. They acknowledged it 6 months later. They denied just very recently that their soldiers and volunteers were fighting alongside the taliban. 8000 of their men have been killed so far in the American offensive in Afghanistan. They denied that their troops went into Kargil. Four months later when I was in Pakistan, I knew that at an investiture ceremony, 72 members of Pakistan’s Northern Light infantry were presented with awards for gallantry in Kargil.
But to come back to the issue of plebiscite, as per Part III of the August 13 resolution in 1948, the plebiscite was to be held only on the withdrawal of Pakistani troops. At that time the UN gave us several assurances during private discussions which included the agreement that the responsibility for the security for the whole of the territory of J&K would be that of the Government of India, that there shall be no recognition of the government of the so-called Azad Kashmir, and that the territory occupied by Pakistan should not be consolidated within Pakistan and that Pakistan would have no say whatever in the conduct and holding of the plebiscite and most importantly, the plebiscite proposals would not be binding upon India if Pakistan did not comply with parts I and II of the August 13 Resolution, which it never did, if I may add. This resolution was passed under Chapter VI of the UN Charter and not under Chapter VII which would have made it binding upon India. We should also bear in mind that when this happened in 1948, we had no friends. The UK and the USA, for whatever reasons, sided with Pakistan. As for the Soviet Union, I remember reading about the conversation between Stalin and Dr. Radhakrishnan when I was in Moscow. Stalin is reported to have asked Dr.Radhakrishnan if our army was independent now or if it still functioned under British command. The Soviet Union too did not back us completely in 1948. So situations do have international complexities which can’t be ignored.
Now what is the challenge posed by Pakistan? India has for centuries been a civilizational-state. We have not been a nation-state in the western sense of the term. There has been civilizational unity and not mere constitutional unity. This came about however when we became independent of British rule and gave ourselves a constitution. Let us remember, that in the 51 years since our constitution came into force, our democratic experiment has been the most unique experiment in India and in world history – binding together people of different religions, different ethnic compositions, and languages into one democratic State. Unity in India we have to remember, is not based on homogenity or uniformity of religion, race or language. That is not the basis of our nationhood as it is for most nation-states of the world. The serious mistake that Pakistan made which led ultimately to its break up and which is the root cause for all its problems is that it equated unity with uniformity. Religion was the basis for its creation and nationhood but it did not last long and Bangladesh was born.
Now coming to Pakistan itself, when it realised that it will never get Kashmir politically, the war of 1965 started. Again authored by the Pakistani army and again they failed! The Soviets brought us together in Tashkent. A serious miscalculation that Pakistan made in 1965 was in underestimating the resolve of Prime Minister Shastri and also in their analysis of the domestic situation in India at that time. They saw the troubles in J&K after the Hazratbal incident, the language riots in South India, and the Punjabi Suba demands in Northern India as signs of weakness of India’s pluralistic, secular and democratic order. That was the reason for the timing of Pakistan’s strike against India at that time, in 1965. It failed. Then came 1971. What happened in 1971? I don’t see India’s victory in ’71 so much in military terms as a victory for the choice we made in 1947 to arrange our polity as a secular democracy, which celebrates the rich diversity of our cultures. But to Pakistan it was a grievous blow because it struck at the very roots of the two-nation theory on which Pakistan’s creation was based and on which it breathes and sustains itself vis a vis India. It struck at Pakistan’s premise that religion alone can be the basis of nationhood for Muslims. They had not, unlike us, undertaken to arrange their polity on democratic principles and it is to the full credit of our political leaders of the time and all political parties cutting across the ideological spectrum that respect for democratic norms and the diversity of Indian society has been the hallmark of our national life. The ’71 conflict caused and put into place the Shimla Agreement. The Shimla Agreement had certain crucial provisions. It said firstly that all issues and differences would be resolved through bilateral negotiations; which in effect meant, that the UN Resolutions had been ruled out as being relevant for any solution to the problem in J&K. The UN’s role in J&K was eroded because the cease-fire line which came into effect in 1948 was replaced by the LoC meaning the UN had no locus standii to monitor something that was agreed upon bilaterally. This was decided solely by Indian and Pakistani military commanders after the Shimla Agreement. This is extremely important because of the crucial role it played in the context of what happened in Kargil. Apart from that we agreed to resume diplomatic relations. But we made a crucial decision at that time; we decided that if relations had to be improved with Pakistan, it had to be an all-round improvement we have to improve trade, improve travel and cultural exchanges, exchanges between youth, between the people and thus to create an atmosphere of understanding and trust on the basis of which even complex issues like J&K can be resolved.
Around this time, in 1973, I think, when the Akalis passed the Anantpur Sahib Resolution, the Pakistanis came to the conclusion, that just as they could stoke Punjabi separatist sentiments in 1965, they could start playing this game once again. Even as Pakistan was contemplating fishing in the troubled waters of the Punjab, it was continuing its assistance in every way possible to the insurgents in the North-East. The Minister is here and he will bear me out on this. I recall, when I was the Ambassador to Burma in 1995, the ULFA, the PLA, the NSCN, were all being trained by the ISI in Bangladesh, and being pushed into the North-East regularly. It was really the Myanmar army, which helped us to deal with that menace at that time. Therefore find it very strange when I come to Madras that people here, who really ought to know better, are willing to place their faith in Gen. Musharraf and yet hold the position that Myanmar is ruled by a military dictatorship, when it comes to our doing business with the Burmese government or inviting their leaders here, and declare that we ought not to be doing so in spite of the fact that it is the same military government of Myanmar which has helped India consistently in dealing with insurgency.
Pakistan’s objectives towards India soon became very clear. The Punjab was to be destabilised at all costs. Starting from 1977, Gen. Zia-ul Haq made it a point to play upon Sikh religious sentiments by inviting jatas, I have seen those jatas and been with them in Pakistan, and this was done with the sole purpose of inciting them and promoting separatism by constantly referring to the Anantpur Sahib Resolution. He would tell them, in your Resolution, like Jinnah said much earlier, you have all declared that the Sikhs are a separate nationality and of a different nation. Pakistan exploited this to the hilt. My point here is, for those of you who believe that if we listen to Gen. Musharraf and hand him Kashmir on a platter, our problems with Pakistan will be over, well, they won’t be over. The existence of a pluralist, secular, united India, is considered by the military establishment in Pakistan to be a threat to its very raison-d’etre. There are no short-cuts in dealing with Pakistan or its military establishment. I find it very naïve that some of us believe that feeding Musharraf with tandoori chicken in Agra would bring about a turn-around in his attitude or objectives with regard to India. I don’t know if you know that separatism in Tamil Nadu is a subject of study in the National Defense College of Quetta in Pakistan. Gen. Musharraf, I am told, is one of those who has delved deeply into that subject. So let us be clear that what we are in to with Pakistan, is an ideological war with political dimensions which can succeed only when we succeed as a pluralistic, secular, democratic State. And I would urge that we develop a political consensus on troublesome internal issues with the potential to cause communal and social tensions, so that any political rift or division among ourselves may not be exploited by hostile, external forces to our detriment. I will leave that thought with you.
Coming to the more recent situation in dealing with Pakistan, I think the US must take a fair share of the blame for the predicament in which the world finds itself in. Through the 1980s, armed fundamentalist groups, led by the jamaat-e-islami were armed, trained and provided logistics support by the US, the CIA, to be specific, to take on the Soviets in Afghanistan. But what did it lead to? It led to a gun culture in Pakistan, where I remember in 1981, when I attended a marriage at the residence of a zamindar, his security guards had twelve bore weapons. Today if he is a small zamindar, his guards would have AK 47s, if he is a big zamindar, his guards would have AK 56s and if you were to go to Peshawar, then you would see that the guards probably have rocket-propelled grenades. That is the degree of the weaponisation of Pakistani society which has also spawned, in the meanwhile, a large number of fundamentalist groups. What I find strange is that when Indians go to Pakistan, they pay one visit to Lahore, meet some friends, have a drink (I have had more drinks in Zia’s islamised Pakistan than anywhere else in the world), and then come back and tell us that they are just like us, how Musharraf is so nice and plays golf, and how we should just talk to him and all our problems will be over! I will tell you, that what has happened is that from 1990 onwards, a mutually reinforcing nexus has been built up between the ISI on the one hand and the fundamentalist groups within Pakistan on the other. If it was Benazir Bhutto, she used the Deobandis of the Jamiya Uloom e- Islami to support the Taliban, (she helped to create the Taliban although she denies it now), and if it was Nawaz Sharrif, he found Maulana Fazlur Rehman somewhat embarrassing and so he arms the Lashkar-e-tayyiba, and all this with the active collaboration of the ISI. The net result is that the Frankenstein monster created by the CIA and the ISI can no longer be remote controlled by them and even its creators cannot determine the directions in which this monster will move.
Pakistan today is growing at the rate of 2% per annum. Its population is growing at 2.75% per annum. Over the last six years there has been stagnation, some experts would say even a decline in the per capita income. The expenditure on debt repayment and defense alone exceeds current revenues. So where is the money to invest in schools imparting modern primary education, secondary and higher education? Poor families therefore send their children unsuspectingly to the mushrooming madarasas where they are taught lessons in hate. Huge numbers of them go in support of the Taliban into Afghanstan and huge numbers of them enter India from across the LoC. After 1993-94, in Kashmir, and I am sure the Minister will once again bear this out, the bulk of the so-called militants (I don’t like the term militants, I prefer to call them terrorists), are not Kashmiris, they are all Pakistanis, and the very presence of these Pakistani terrorists is a violation of the UN resolutions and also a violation of the Shimla Agreement. By arming, aiding and sending in terrorists into Jammu and Kashmir from its soil, Pakistan is violating and disregarding the word and spirit of all agreements it has entered into with India. And so, as I said, the Harkat-ul-Mujahideen came into prominence during Benazir Bhutto’s reign, the Lashkar found a sponsor in Nawaz Sharrif and is a Lahore based group and both groups had the backing of the ISI.
Today I see a different situation emerging in J&K as far as Pakistani involvement is concerned and as far as other external forces are concerned. Over the last ten years and more of terrorism in J&K, very few people realise this, our armed forces have captured more than 25,000 AK series rifles, 3 million rounds of ammunition and those that sit in air-conditioned offices in Chennai and pontificate to the nation on wrongful arrests by our armed forces, for Gods sakes go yourselves or send your children to know what it is like to fight this war there. You are fighting foreign aggression there, nothing less! Liberalism is all very nice but not as a cultivated attitude to impress foreigners. The challenge we are facing today in J&K is externally sponsored terrorism. It is not an indigenous Kashmiri movement. There is a small group yes, a very small group but the monster acting in J&K is Pakistani by birth. We therefore need an integrated approach to deal with this menace.
There is no harm in having a dialogue with whatever or whoever is in control in Pakistan and let us do so from a position of strength. When I was in Pakistan, the ISI had persuaded itself that after more than a decade of fighting terrorism in the Punjab and in J&K, the Indian army is fatigued and really cannot continue the fight for too long. The words, which the military establishment uses in its internal documents to describe their strategy is “to bleed India, to bleed the Indian army”. I think we must understand the nature of the adversary we are dealing with. Unfortunately for the people of Pakistan, the civil society institutions within their country are very weak. Unlike in India, the relations which that country may choose to have with India are determined predominantly by the military establishment. I accompanied Rajiv Gandhi in 1988-89 when he visited Pakistan and Benazir Bhutto was the Prime Minsiter, and it was clear to us that in spite of being democratically elected by the people, whether it was the country's nuclear programme or the trouble being fomented by Pakistan in the Punjab, these decisions were out of her hands. The country was being run, even when there was a democratically elected government, by the military establishment. And really therefore, we must recognize that until this army establishment is forced to see that what it is doing in the Punjab, in J&K and in other parts of India is going to cost Pakistan more than it is going to gain, their adventurism in exporting terrorism via the jehadis into India will continue. Just after the Lahore summit, 15 days after the summit to be precise, a group of Sikh yatris were visiting Pakistan on a pilgrimage. Nawaz Sharrif was the Prime Minister then. What does he do? He appoints Gen.Javed Nasir, the chief of the ISI as the head of the Pakistan Gurdwara Prabandak Committee! For the Sikhs, the Nankhana Sahib is one of the holiest shrines! And they invite every separatist Sikh on the Pakistani payroll like Ganga Singh Dhillon and Jagjit Singh Chauhan (Chauhan was not there that time) and get them to incite the pilgrims to separatism against India. This was in February 1999, twelve days after the so-called historic Lahore Summit!
This is interesting because on April 12 1999, Gen.Musharraf proclaimed India was a hegemonic power and that low-intensity conflict with India will continue even if Kashmir is resolved. Self-styled peace activists and amateur Track II diplomats need to inform themselves first on the ground reality in Pakistan and keep this in mind. There was a Director General of the ISI, a good friend of mine (I had a lot of dubious company when I was in Pakistan), he remarked at a seminar, in response to a question on what was the single most important aim of the ISI, that it was their aim to weaken India from within and that they could do it. There was another Director General of the ISI who hosted a very gracious lunch for me at his residence, and I asked him if he knew that India’s governance was secular and that what Pakistan was doing in J&K and elsewhere in India was not to the liking of Indian Muslims, because they did not want another religious holocaust in India. His reply in Urdu which I will quote and which I shall translate for you ( Parthasarathy sahab, aap janobi hindustan ke hain aur yeh hindustan hai hi nahin. Ham Kashmir ke masle ko ek din ka masla banayenge) – meaning you are a South Indian from Chennai and don’t know Northern politics. We will make Kashmir a religious issue among the Indian Muslims. And despite what I heard earlier, shortly thereafter, Shabana and her husband visited Pakistan and gave them a mouthful on Kashmir. And it may interest you to know that at the World Deobandi Conference, Maulana Madhani told the Pakistanis “Don’t give your territorial ambitions in Kashmir, a religious colour. I will not be a party to any resolution on Kashmir.” The World Deobandi Conference Resolution, which declared support for Libya, and for the Taliban, however did not make any mention of Kashmir.
Now how do we deal with Pakistan? Before going into that I would like to say something and I hope the Minister will excuse me for saying this. The Pakistanis think differently from us. The series of measures taken by us like the prolonged cease-fire in J&K, where our intelligence assets were wiped out, when our troops had to fight not only with one hand tied behind their backs but with their eyes virtually blinded, the talks with the Hurriyat during this time. The entire focus of the government during the cease-fire was on the Hurriyat, as though they were the sole representatives of the Kashmiri Muslims! Who are the Hurriyat Conference? Syed Shah Gilani? He wants an Islamic state in J&K and he is avowedly for J&K acceding to Pakistan even now. Not very different from the Taliban. Others whom I will not name, so scared of their own shadows that they will not take an open stand on anything. In private they will tell you, we cannot be seen with you, we cannot be seen talking to you, because we will be shot. You know when the Hizb announced the cease-fire the Hurriyat was instructed by telephone from Rawalpindi not to support the cease-fire and to reject it if they knew what was good for them. So when people talk of reviving the democratic process in J&K and I hear our bleeding-heart liberals say that, that will be the ultimate panacea for all its ills. How can you have a credible democratic process when people with guns are instructed to mow down anyone who participates in the democratic process?
I will now come to the situation in Afghanistan and the impact it has had in J&K. Since the Minister is here with us, I would like to draw his attention to UN Resolution 1373 under Chapter VII of the UN Charter, which mandates severe action against States that condone or support terrorism. Pakistan today is home to the murderers of Chief Minister Beant Singh, am I right Mr.Minsiter, Pakistan is home to the architects and perpetrators of the Mumbai bomb blasts, Pakistan is home to the hijackers with whom we so generously dealt with in Kandahar, Pakistan regularly provides haven passports and visas to the ULFA and other terrorists of India’s North East, the list is endless. I would submit that the time has come for the Government of India to publish a compendium of all this and make it available not only to world governments but also to our own people. So that we don’t have this rather naïve talk of being nice to Pakistan and Gen. Musharraf. This is the first step that needs to be taken. September 11 has compelled the international community to take note of our concerns. I must also compliment the Government for its handling of the Afghan crisis. I have heard so much about why should India offer support and help to the USA in this war against the Taliban in Afghanistan? I mean, why not? What do we lose if the Americans knock out the Taliban? Its good for us, good for the world. We should help it in any we can, to do so. What are the favours that the Taliban did us anyway? They lied to me throughout the hijacking, in Kandahar. Those five hijackers, I know went into Pakistan through Chaman, I know that the baggage of the hijackers was unloaded and put into Taliban Foreign Minister Muttawakil’s car, all under the supervision of the ISI. I know for a fact that all the five hijackers are today in Pakistan. The Minister will corroborate this, we have intelligence reports telling us where the hijackers went, the Americans know it too.
Another fallacy I find here is that if we confront Pakistan militarily, it will become a nuclear war. It isn’t true. Gen.V.P.Malik, the former army chief, had worked on what is termed ‘strategic space’. Right now Pakistan is waging a low-intensity conflict on Indian soil. We are fighting continuously on our soil. Gen.Malik brought in a range of options, which we can credibly use in a measured manner when the situation was appropriate to deal with it across the border. I think what the Americans have done and what Israel has done makes it clear that terrorism can’t be fought exclusively from our own soil. I am not suggesting any kind of adventurism or that we do this tomorrow morning. We should just bide our time. The Americans have wiped out 8000 Pakistanis on Afghan soil. Fine! May they succeed some more. But you should never, in the conduct of state affairs, rule out options. Any option. I know what I am saying may sound very strong to the Minister, but that is the way I feel about it, particularly after having dealt with the situation. So keep that option open, at a time, place and method of your choosing. The other thing is, and once again I would request the Minister to bear with me. How did the MQM movement start in Pakistan? The Mohajjirs have friends and relatives in India. And they have been fed on the staple diet that in India your Muslim brethren are eaten for breakfast, lunch and dinner. Here I must say a word about Mr.Vajpayee. When he was the Foreign Minister, he had instructed the consulate general to freely issue and in Karachi we issued around 300,000 visas annually.
Let us not take our conflict with the army in Pakistan or the Pakistani State to affect our relations with the people of Pakistan. The MQM movement arose in Pakistan from Karachi because of our liberal policy with regard to visas in Karachi and as a result of which we had thousands of Karachi ites visiting their relatives in India every year. I think it is very important. Just after the Lahore Agreement I was working on a tourism agreement. I think we should get Pakistanis here on group tours. We should get their youth to visit India and most importantly, we should get their army to come and meet our people. Let them learn that India is not a State about to collapse. And in this will lie our success. Let them not mesmerise themselves into believing that we are being pushed around or pushed out of Kashmir because we are a weak nation. On Kashmir itself, let us talk to them. Let us talk to them about the fact that Pakistan occupied Kashmir and the northern areas do not have representative governments. They are ruled by a Kashmir Council from Islamabad. We should tell Islamabad to give PoK and the northern areas the same kind of autonomy that Farooq Abdullah’s government enjoys here under Article 370. I am personally not in favour of moving ahead on any proposal for autonomy for J&K till such time as the Constitutional Review Commission headed by Justice Venkatachaliah submits its recommendations. Till such time as the political parties agree to implement the Sarkaria Commission’s recommendations. Kashmir can be resolved when India and Pakistan become as close to each other as England and Ireland have become in recent years. That is how the problem in Northern Ireland has been resolved, is being resolved rather. Let us take on Pakistan on everything they say. We have a strong case but there is one thing we should take note of. The USA has always been wrong in its policies and judgements in this sub-continent. In the 1950s Gen.Ayub was the great benevolent dictator, we know what happened to Ayub. In the 1980s, Gen.Zia was the leader of a frontline state helping the United States to fight international communism. We know what happened to him. I will therefore not speculate about Gen.Musharraf.
If the battle against Pakistan has to be fought at home we have to ensure the following: that on some crucial issues concerning national interests, our polity has to be united, we have to constantly work to strengthen our democratic and pluralist society, we have to go beyond the stagnating 5% growth and begin to grow at 7% per annum. If we continue to do all this and don’t let up, Pakistan is a problem, which will resolve itself. They have lost in recent months, their control over a territory of immense strategic importance to them. In its terrorism export business, Pakistan operated largely from Afghan territory. With the Taliban gone, I don’t think the Northern Alliance is going to be very charitable towards Pakistan. Finally, about terrorism in Kashmir. I don’t think that those who have received such a thrashing from the United States in Afghanistan are going to be in a hurry to rush into Jammu and Kashmir. There is an important ideological reason for this. The majority of those that received this hammering are Pushtuns and they feel that by co-operating with the USA in the war against the Taliban, Gen.Musharraf has betrayed the Pushtuns. Second, they are mostly Deobandis and the Deobandi leadership in India has made it abundantly clear, and more recently the statement by the grandson of Asad Madhani that they don’t want Pakistan to interfere in Kashmir will deter the Pushtuns defeated in Afghanistan from rushing into India.
Maulana Fazlur Rahman, the Deobandi leader in the NWFP is also reported to have remarked that when the Pakistan army has betrayed them in Afghanistan, they have no reason to trust it in Kashmir. So what I expect therefore is that notwithstanding the lavish praise heaped upon Gen.Musharraf by the Indian media and the excellent breakfast which they partook with him in the full glare of global TV, my assessment is that the Pakistani State Mr.Minister, will continue to aid the Lashkar-e-Tayyiba in its stated objective in J&K and the rest of India. But after the universal condemnation of their attack on the J&K state assembly on the 1st of October, they will now focus their attacks primarily on military targets. And I would only request that our very disciplined armed forces are not once again compelled to fight these terrorists with one arm tied behind their backs.
That’s about it. Let us talk to Pakistan, let us talk to Gen.Musharraf, let us try and improve relations between our two countries but let us also keep our powder dry. Thank you.
SHRI I.D.SWAMY, UNION MINISTER OF STATE FOR HOME AFFAIRS
I do not know what aspect of the problem in Jammu and Kashmir remains to be discussed yet. This eminent panel of speakers has already dealt with, in an erudite manner, the problems posed by Article 370, issues of internal security, the emotions and sentiments of the people of J&K and the rest of India, the legal and Constitutional issues involved, the role of Pakistan and the international community, every nuance has been raised and discussed. The three intellectual giants present on the dais today, all specialists in their fields, have lucidly and succinctly placed before this august gathering, their scholarly views on the above issues. I really must express my gratitude to ‘Vigil’ for inviting me here today because this has provided me with the opportunity to listen to this intellectual treat, to listen to the scholarly talks by Shri Datar, Shri Parthasarathy and Shri Badsha. Their analysis of the problem has been educative, informative and even enlightening. Parthasarathy ji in particular, with his vast experience in diplomacy, his vast experience in dealing with various peoples, understanding their psychology, their temperament and his first hand knowledge of Pakistan and its State apparatus, has helped us to understand the genesis of the trouble in J&K.
As Parthasarathyji pointed out, even if Kashmir is handed on a platter to Pakistan, the problem will not be solved because the problem lies elsewhere, to deal with which the nation has to prepare itself, the people have to prepare themselves. That is why I can only say, that this so-called proxy war, I prefer to call it covert war, because it is nothing less than a war, only the means adopted are cowardly. Pakistan has to take recourse to this kind of cowardly covert warfare because it is no match for India when it comes to conventional warfare. And it is no longer easy to launch a full-scale conventional war against any nation because of the immediate attention of the UN and the rest of the world governments. And the possession of nuclear arms deters conventional war because of the fear of the war escalating into a nuclear war. Therefore if conventional warfare is ruled out and nuclear war is virtually impossible, it leaves only covert war as the only option. And India has been fighting this covert war by Pakistan for close to two decades now. Sabotage, espionage, attempts to ruin the Indian economy through fake currency, planting and spreading dangerous rumours to provoke riots in our cities, creating terror among our people, Pakistan has tried every one of these methods to wage this war through other means.
I am sure you will all agree with me that with the most advanced technologies available to terrorists and other national adversaries, there really is no old-fashioned ‘border state’ as a frontline state not only against the advance of our adversary but also as the most vulnerable states of our nation to enemy attacks. The penetration and infiltration by Pakistan’s ISI and our own internal security dangers have made every state a border state. From Mumbai to Manipur, from Kashmir to Coiambatore, the threat from these terrorists is pervasive. In this war, it is not just our army and our security forces but the intellectuals, the media, each one of us has to fight this war so that with your help, when you become aware of the real nature of the threat, when you become prepared to fight this war, I know then that we as a nation will find the strength and the will-power to defeat the Pakistani state’s evil intentions towards India. We can defeat Pakistan’s covert war against India just as decisively as we defeated it in three conventional wars in the last 50 years.
We have listened to the historical roots of the problem in Jammu and Kashmir including the legal and constitutional implications of Article 370. We also heard from Shri Habibulla Badsha about how Sheikh Abdullah was instrumental for J&K acceding to the Indian dominion. Yes, granted that Sheikh Abdullah had his own reasons in 1947 for working towards the state’s accession to India but let us also not forget that it was the same Sheikh Abdullah who addressed the J&K state constituent assembly in 1952 and instructed it to review the accession! And also that it was the same Sheikh Abdullah who was arrested soon after by no less a person than his best friend Pandit Nehru on charges of sedition. So I will not go into the historical aspect of it again. The most unfortunate part of discussing this controversial provision is that anybody who raises the issues of discussing or abrogating Article 370, he is immediately branded to be communal and fundamentalist. And if you go into the history of Article 370, if you go into the constitutional debates, if you read the explanations given to justify its inclusion in the Indian Constitution, by the then Home Minister Sardar Patel and Prime Minister Pandit Jawaharlal Nehru in the floor of the house, you will know that they themselves called Article 370 ‘temporary and transitory’, “Yeh ghiste ghiste ghis jayegi” said Panditji, meaning that it will wear out over time with constant chipping away of all its isolationist aspects.
It was a devise to integrate the state of J&K with the rest of India because the state constituent assembly had not been formed at the time and in the interim, the Indian Constitution had to be made applicable to the state through the provision of Article 370. This was the intention that part by part, the Indian Constitution would be made applicable to the state of J&K. This devise therefore, was not meant to be a permanent feature of the Indian Constitution. And this devise, as one of the speakers already pointed out, was very aggressively, very vociferously opposed unanimously by the Congress Working Committee. When Pandit Nehru was away abroad and Gopalaswamy Ayyangar, Minister without Portfolio, in charge of Kashmir Affairs, as appointed by Nehru himself, was given the task of getting the draft of Article 370 approved by the Working Committee. And when it was placed before the CWC there were very strong objections raised to it by the CWC unanimously – “It was torn to pieces” was how Sardar Patel’s secretary recorded it. And today when demands are made for its abrogation, those that opposed it then would label us communal and fundamentalist.
The very chapter in the Indian Constitution under which Article 370 finds place is titled ‘temporary and provisional’. It is unfortunate that many of the provisions in the Constitution made keeping in view its more than 5000 year history, the culture of this country, are merely in the form of directives given to the Central and state governments. The provisions under the ‘Directive Principles” of the Constitution, which in my view, reflect the concerns and ethos of this country, are not justiciable and mandatory. Where directives were given, we have failed to implement them, while temporary provisions are now becoming entrenched and permanent.
Just to drive home the point about the intractable nature of political opposition today, just as demands for abrogation of Article 370 are dubbed communal, when the government wishes to bring in a stringent law to fight terrorism, cross-border terrorism, the opposition political parties instead of coming forward to join hands with the government in fighting terrorism seem determined to fight the Ordinance to prevent terrorism, POTO. And this notwithstanding the fact that the UN has passed a unanimous resolution under Chapter VII of its Charter, which makes it mandatory upon all member States to comply with it, to pass such laws as may be necessary to deal effectively with such acts of international terrorism as shook the USA on the 11th September. We are happy that wisdom has finally dawned upon the UN and the rest of the world about the need to fight cross-border terrorism collectively but sorry that the world had to pay such a heavy price for it.
India has been a victim of this kind of terrorism for more than a decade now in J&K and in the North East and our Prime Minister, in his address to the US Congress this year had remarked that this fight against terrorism is not India’s war alone but that it needed the collective will and action of all the civilized world to end it. The day has come now for all countries faced with international terrorism, to come together to fight it. And today, we are all witnessing the war against the Taliban which the creators of the Taliban have been forced to wage – against the monster that they created.
Panditji, that great man, created a monster too, a monster called separatism in Jammu and Kashmir, a monster that is taking a heavy toll of this nation. Jawaharlal Nehru was a great human being, one of the leaders of our freedom movement, but he made several mistakes with regard to J&K in the crucial years of 1947-48, and these mistakes have assumed the proportions of a Frankenstein which has turned itself upon this nation. To quote an Urdu poet, “Centuries have to pay for mistakes made in a moment”. Nations suffer for generations to come. Article 370 apart, J&K is plagued by this low-intensity war which, as Parthasarathy ji correctly pointed out, is intended to bleed India. This is not just dangerous but costly too. This is the costliest war that India has had to fight. Not only in terms of the money involved, but in terms of lives lost – the lives of our defence persons, our police, civilians, the number of lives lost in this low-intensity terrorist war, we have lost more lives than in all wars put together that we have fought against Pakistan in the last 50 years. We have lost over 61,000 people in this decade-long war of secessionism and separatism in J&K. and we have lost over 8000 of our brave soldiers in J&K, more than we lost in all our conventional wars. Which is why experts like Shri Parthasarathy believe that this war is intended to bleed India in more ways than one.
Sometimes it may appear that the terrorists operating in J&K picking their targets at a time and locale of their choosing, have the upper hand and that they are succeeding in their intent to keep our security forces bleeding. Because the element of surprise is with them. Let there be no mistake, this war has been designed, engineered, funded and executed by the Pakistani State, with the help of local elements no doubt, but this war is master-minded by Pakistan. It is Pakistan which is the epicentre of Islamic terrorism. And as I said, while it may appear that the terrorists are succeeding, they are failing, let me assure you, and this war against India will cost Pakistan very dearly. Very dearly. And the fact that the USA has solicited Pakistan’s help to fight the Taliban in Afghanistan is an excellent opportunity for us to deal with Pakistan through the USA. But in this strategy too, our government did not get the unqualified support of the opposition. Why did you offer to help the USA, we are asked, what is the nature of the support that you are going to offer, are you going to send Indian troops, are you going to make our airports available to American forces, your support to America to fight the Taliban will be seen to be anti-Islam – these are the kind of criticisms that we have had to face.
The Prime Minister and our minister for External Affairs have been impressing upon world governments at every available opportunity for the need to fight the global network of terrorism collectively; and when events have taken such a shape that today there is now a world coalition against terrorism should not India offer to co-operate in any way that will serve our national interests? The criticism of the opposition parties about our readiness to co-operate with the US and other governments to fight terrorism is as baseless as their opposition to the Ordinance to prevent terrorism POTO which we soon hope to convert into an Act. We really do need this tool in our legal armoury to strengthen the hands of our security forces. On the one hand we all bemoan the fact that our security forces are often fighting the terrorists with one hand tied behind their backs and on the other when the government takes measures to strengthen their hands legally, there is a hue and cry about the need for such an act of parliament. At times of grave national crisis the hands of the government can be strengthened by the intellectual establishment, the media in particular. Another emerging trend is shrill campaign for human rights. We have the National Human Rights Commission which is a statutory body to keep a vigilant eye open for abuses. But there are some NGOs with dubious reputations and even more dubious pan national connections whose sole objective is to hamstring our security forces and the government from dealing with terrorists effectively. These human rights organizations and NGOs take up the cause of the human rights of the terrorists and there are sections of the media which give them the publicity they don’t deserve. What about the human rights of the victims of terrorism? What about the human rights of our police and armed forces who are either critically maimed or even die in their war against the terrorists?
Look at what happened in the USA as a study in contrast. They made their PATRIOT law in three days. On the first day it was passed in the House of Representatives, on the second day the Senate passed it 98-1. And on the third day it received the presidential assent. Not a murmur anywhere. No shrill dissent or criticism about the law being draconian and violative of human rights. Dissenting has become the fashion in this country. Dissension and thoughtless criticism. Lets go back to the Kargil war. At the height of the Kargil war, a full-scale war with Pakistan, we have the ridiculous demand from the opposition, “we want an enquiry, was it intelligence failure or political failure, or was it dereliction of duty by our security forces”. There is a time and place for everything but sadly, the opposition parties today, particularly the Congress and the communists believe in shrill dissention and detractive politics completely oblivious to the need for national unity at such times. Lok Sabha was not in session then, but the opposition wanted the house to be convened, they demanded a discussion in Rajya Sabha, not so much a discussion as an inquisition.
Look what happened in the USA on the eleventh September. The CIA, one of the best equipped and the most advanced technologically, was unable to prevent the terrorist attacks on the WTC and the Pentagon. They could not prevent the simultaneous hijacking of four airplanes from different parts of the USA. The tallest building of the lone super power nation was brought down with its own airplanes on its own soil. No media criticism, no political dissension, no demands and accusations – the country pulled together as one in its moment of tragedy, in that war-like situation in spite of the fact that its polity is also characterized by bi-partisanship. Politicians indeed wanted Congress to meet but only to send the signal to its enemies that not twenty million dollars but forty million or whatever is required will be made available to the government to avenge the attack. That is how nations think. That is how nations behave. This war against terrorism cannot be fought by governments alone. The people will have to participate too. They must contribute to creating an atmosphere to bring together all of us unitedly to confront our enemy.
Now coming to the Jammu and Kashmir Resettlement Act, it is a classic case of the impediments placed by Article 370 before the Government and the Judiciary when they have to deal with it. This is a dangerous Act with grave national security implications and yet the central government cannot do anything unilaterally about it in spite of the fact that it is dangerous because Article 370 mandates that whatever law parliament may pass with respect to J&K can be done either with the concurrence of the state government or in consultation with it. J&K can thus be integrated with the rest of India only if its leadership is visionary. In the absence of a visionary leadership we have had to install puppet governments who would not resist the making of such laws that would enable progressive integration of the state with the nation. We had one of the most progressive, one of the most democratic constitutions in the world. It is therefore utterly undemocratic to have inserted this isolationist Article 370 into our constitution. This Act was sent by President Giani Zail Singh to the Supreme Court for its opinion under Article 143 (1) of the constitution 18 years ago. Because when Sheikh Abdullah wanted to table it before the state assembly, he did not receive the consent of the Governor. But overruling the objections of the Governor, the state assembly sent the Bill back to the Governor for the second time for his assent. The Bill thus became an Act. Prime Minister Indira Gandhi, who understood the dangerous game being played by the Abdullah government, requested the President to make a Presidential Reference to the Supreme Court about its implications.
To put it in a nutshell, if this Act is ever implemented by the J&K state government, it would mean that those persons from J&K who in 1947, had opted to migrate to Pakistan can come back even now, after 55 years. After sitting on the presidential reference for over 18 years, the Supreme Court returned the reference to the President last month after ‘respectfully’ declining to answer it on the grounds that since it was already an Act and a fait accompli, there was no point in answering the special reference! Let me assure you all we are very aware of the consequences that may follow if this Act were ever to be implemented. The government has three or four options before it and we will consider all options to see to it that it is never implemented.
I would like to thank ‘Vigil’ for having given me this unique opportunity to listen to legal and constitutional experts today. And I have been privileged to share the dais with a man of eminence like Parthasarathy ji whose talk was fully informative and shed light on the Pakistani State. Thank you all once again.
INTERVENTION BY ‘VIGIL’ ON THE JAMMU AND KASHMIR RESETTLEMENT ACT
With the permission of the Hon’ble Minister and the speakers on the dais, I would like to add a few comments on this infamous Act. The J&K constitution classifies the residents of J&K into several categories with decreasing privileges. The most privileged of them all are those that the state considers its citizens. This means there is a section of residents who are citizens of J&K. of all the states in the Indian Union, the state of J&K alone has the right to grant citizenship to a section of its residents. As per the Constitutional (Application to J&K) Order of 1954, citizens of J&K would be automatically granted Indian citizenship.
Let us see what this means exactly. All citizens of J&K are automatically citizens of India. When you and I say we are citizens of India, iy means we are citizens equally of its constituents too – I am as much a citizen of Tamil Nadu as I am of Maharashtra or Karnataka. The fundamental Rights guaranteed to me by the Indian Constitution is enforceable in evry nook and corner of India. BUT NOT IN J&K. While the citizens of J&K become citizens of India automatically, assured of every privilege and right guaranteed to all citizens, the people of the rest of India do not enjoy the same privileges in J&K as enjoyed by its citizens. It means I cannot acquire property in that state, I cannot simply decide one fine day that from that moment on I will make J&K my home like I may decide to make Bihar or Gujarat my home.
But as per this Act, any Pakistani claiming to be a citizen of J&K prior to 1947 and who had migrated to Pakistan can come back to India and the J&K state government will not only confer citizenship on him as per this Act but will also guarantee him his right to stake claim to any property he may have abandoned in 1947. Think of the disturbance this will cause to civil society in J&K. think of the serious religious demographic changes that can occur in Jammu and Ladakh. And above all think of the fact that these people and their children have been fed on a daily diet of hate India propaganda for the last 55 years.
Also please consider this. A section of the Muslims of the valley and today in Jammu have driven the Hindus out. The Kashmiri Hindus are living in pathetic conditions in refugee camps even today – ten years down the line. And Farooq Abdullah has not visited them once in all these years and has not even begun the process to bring them back to the valley and return to them their dignity, their property and their right to life. But he is in a desperate hurry to bring back Pakistani Muslims to the state. If this doesn’t make our blood boil, let us consider this too. In 1947, not only did the Muslims of J&K as from the rest of India choose to migrate to Pakistan but there was a very large number of Hindus who, fearing for their lives had moved into J&K. EVEN AFTER 55 YEARS, THE Hindus who had made J&K their home have not been conferred their citizenship by the J&K state. Living as they do, the rights guaranteed to them under the Indian constitution cannot be enforced in J&K. They have no privileges that the state constitution gives to its citizens. This is not acceptable to ‘Vigil’. It is not acceptable that this country’s intellectual establishment will not discuss anything that concerns J&K without making a hue and cry about it being communal or anti-Muslim. When there is deliberate indifference and neglect of the Kashmiri Hindus who are still living in refugee camps, when there is no discussion on the plight of those residents of J&K who have still not been granted state citizenship, the studied silence of the media and the intellectuals of this country to the injustice and dangers of this Act and its hiding behind the convenient provision of Article 370, deserve to be condemned in the strongest possible terms. ‘Vigil’ requests the Hon’ble Minister to convey to the government the strong sentiments of this audience with regard to Article 370 and the J&K Resettlement Act. Thank You all.
The Seventh Schedule of the Constitution of India consists of three lists. List-I is the Union List. It has Entries 1 to 97A which sets out the topics on which Parliament has the exclusive powers to legislate. The Concurrent List is List-III which sets out topics on which Parliament and the State Government can legislate.