In July, 2001, I attended a seminar arranged by Nirmala Deshpande and Vice-Admiral Ramdass in Chennai. The seminar was purportedly to discuss peace in South Asia although it turned out to be an India–bashing seminar on J&K. There were 140 delegates from Pakistan and the Hurriyat was there too in the persons of Mirwaiz Umer Farooq and Abdul Ghani Lone. Not unexpectedly, it was India bashing all the way. I managed to make a lengthy intervention at the end of the day.

The remarks I made at the seminar drew very sharp reactions from the captive assembly. It became clear that these people prefer captive audiences at their meetings and seminars because they do not want any opposition to their version of the problem of J&K or to their prescription for solution. The Hurriyat and the National Conference (NC) occupy all the visible political space and the attendant media space because successive governments have so far failed to accord any perceptible importance to the voices of the Kashmiri Hindus, the non-Sunni Muslims of the state, the people of Jammu and Laddakh and the people of the rest of India (ROI), who continue to defend and die for the state. Given the fact that no national political party has the vision or the will to put a decisive end to terrorism in the state and resolve the issue keeping in mind our civilizational understanding of nation and nationhood, I see no other alternative but for nationalist Indians taking upon themselves the task of crafting the solution. The following paper is a small effort in this direction.

The problem in J&K is multi-dimensional. Secession, separatism, religious demography, the failure by the non-Muslim peoples of the state to come together to form a formidable political opposition to the NC as of today, the complications created by Art. 370, the abject failure of the Indian intellectual class in understanding the origin of the problem and its subsequent complexities compounded by the rootless ness and even pan/anti national proclivities of the intelligentsia, have all made the problem more and more difficult over the years to resolve. Forever lurking on the sidelines is the menacing and predatory presence of the USA, the UK and other Western nations and China to meddle in India’s internal affairs and in Jammu and Kashmir particularly. We must therefore employ a multi-pronged approach to finding a lasting solution not only to J&K but also to the existing religious demography in the state, which is the root cause of the problem. The problem posed by the emerging religious demography in the country, the sub-continent, and in Asia poses both an immediate and long-term threat to Asian nations that are not yet Christian or Islamic. The choice of the strategies to be adopted and the measures themselves must not only take into account all these dimensions, which have aggravated the problem, but must also have a far-sighted view of the shape of this nation and nation-state in the next 50 years.

I had earlier too written on this issue in which I had expressed the need for a combative strategy to win the war in J&K. This will entail not only dealing with Pakistan appropriately but also dealing with the situation internally. This in effect means we have to create an alternative to the Abdullah clan in J&K among other things. The most important thing to do would be to return the Hindu religion, specifically, Kashmiri Shaivism to the land where it was born. It has been India’s unique experience that whenever she has lost territory, Hinduism has been driven out from there and whenever we have failed to protect Hindus and Hinduism in any part of our civilization, we lost that territory. For us, our land and our religion are intertwined. When we lose one, we lose the other. It is therefore important that we think of ways to return Shaivism to the valley.

The following points may merit attention:

1. The refrain that the West, Pakistan and the Hurriyat are indulging in is ‘the Kashmir issue must be resolved by India and Pakistan, keeping in mind the wishes of the people of Kashmir’.

2. At the seminar, I told those present that it is not ‘Kashmir’ but J&K; and that it is not the people of ‘Kashmir’ but the people of J&K - which, I said includes the voice of the Hindus of Jammu, the Buddhists of Laddakh, the Gujjar Muslims and the Balt Muslims. And even if I accepted their term ‘voice of the people of Kashmir’, I want to hear the voice of the Kashmiri Hindus (KH) who are the real victims of the tragedy of J&K.

3. There is need for fresh thinking and an urgent need for combat and non-combat strategy. As I see it, the problem is multi-dimensional.
   
   We (the people from the rest of India {ROI} and the GOI) must begin to speak of the fact that the issue cannot be confined to Srinagar and New Delhi because the ROI has a stake in the state. Our cultural and civilizational roots lie as much in the state of J&K as they do in every other inch of this country; therefore what is the value/importance we, the people of India attach to our roots? Is it not worth defending and protecting fiercely? What have the intellectuals from the ROI done in this regard to create awareness about the need to fight for what is ours historically and legally? Therefore let us begin to exert intellectual pressure on the GOI demanding that the ROI be involved in any decision with regard to J&K
   
   The isolationist mentality that Art.370 has created in the Muslims of the state. We must talk loudly about that and also about why that state alone was considered special at the time of accession if not for the fact it was a Muslim majority region and partition in 1947 happened on the basis of religious demography. We must malign the philosophy behind Art.370. Art. 370 cannot be abrogated without the consent of the J&K state legislature, even if the Indian Parliament decides to abrogate it, which too I don’t see happening in the near or distant future, given the ‘secular’ nature of our polity and given that even the BJP is a party to this kind of politics.
   
   The predilection of the West, specifically the developed nations and of some religious ideologies to alter national borders violently, coercively, is the core issue here, not J&K, per se. The west must give up its penchant to create new nations from old using the often abused concept of self-determination.

4. A determined effort must be made to mobilize the people of Jammu and the Buddhists of Laddakh to become vocal in their demand for separation. They must highlight the inequities perpetrated against them because of Art. 370 which has enabled the political class to remain unaccountable for their crass misgovernance. These arguments can be effectively used as propaganda material to counter the Hurriyat and the NC. Let us not forget, the NC is as much our adversary as the terrorists within the Hurriyat. Like the DMK, the NC too will never change its spots. And this was best illustrated recently when Farooq Abdullah wept copious tears in the J&K Assembly and stated passionately how his people were caught between one country which attacks them and another country which watches silently. And it was not lost upon those who watch Farooq Abdullah and his clan closely, how very poised he was when women and children, relatives of our armed forces were massacred in Kaluchak. He even smilingly patted a little girl on her cheek when he made a perfunctory visit to the army cantonement There were no copious tears and no passionate and angry speeches demanding war with Pakistan. He and his clan will remain separatist. Only they will keep such ambitions dormant until they have attained their objective of securing the territory of J&K from Pakistan. They are using India to keep the territory of Jammu and Kashmir intact for their clan. It is time India used them. We must remember, if India rejects the Abdullah clan, they have nowhere to go. They need India to remain relevant in the politics of J&K. We must use this leverage to tame them.
   
   I realized that the threat by Jammu and Laddakh to separate from the valley drives them berserk. They keep telling you ‘don’t speak of us in parts. The people of J&K are one’. This threat to de-link jammu and Laddakh from the Kashmir valley must always hang over the J&K government as a strategy to force it to isolate the separatist elements among the Muslims in J&K belonging not only to the Hurriyat but also to the NC and other parties and groups.

5. Along with the loud demand to listen to the voice of all the people of J&K must also come the renewed demand for the abrogation of Art. 370. The idea being, so far, the pressure, both physical and psychological has been only on the GOI and the Hindus of the state and the ROI. Now let us work out a strategy to bring immense pressure on the government of J&K and the Muslims to listen to ALL THE VOICES OF THE PEOPLE OF J&K.

6. We need to think and plan afresh. We need to demand from the GOI that it use this strategy of beginning to respect the voices from the ROI and the people of J&K as a first step.

7. We must also begin to consider the idea of not just trifurcation but quadrification as the most powerful weapon to counter the Muslims who are threatening secession. Quadrification is the demand of Panun Kashmir for a homeland in the valley itself. The Pandits are from the valley. So any honourable solution must include their return to their homeland.

8. We must encourage and co-operate with large groups in PoK who want out of Pakistan’s control. Let us sow the seeds of discord first between the politicians of PoK and Pakistan. We can do the rest step by step.

9. Technically speaking, it is possible to trifurcate/quadrificate the state without getting art.370 abrogated. We need to apply art.3 of the Indian .Constitution to do this.

10. Art.3 of the Constitution says the GOI may table a Bill before parliament WITH THE RECOMMENDATION OF THE PRESIDENT to diminish or increase, or alter the name or borders of any state; The President has to send the Bill to the concerned state legislature for its views. THESE VIEWS ARE NOT BINDING ON THE PRESIDENT.

11. As per The Constitution (Application to Jammu and Kashmir) Order of 1954, though, Art. 3 of the Indian Constitution. while it is applicable to the state of J&K, such a Bill cannot be tabled in Parliament without the consent of the J&K legislature.

12. The good news is, the state legislature of J&K can ask the Indian Parliament to table and pass this Bill, even if the Indian parliament is unwilling to do so. Now why would the state legislature do this?

13. The people of Jammu and Laddakh must become very vocal and strident about wanting to separate from the present dispensation, forcing the state government to take note of them. Secondly, the people of Jammu can blockade violently any movement of goods to the valley. The GOI can threaten to withhold funds until the state government addresses itself to the demands of the people of Jammu and Laddakh. And as I said earlier, if the J&K state government continues to remain obdurate about its refusal to abrogate Article 370, then the government of India must begin to pay attention to the people of Jammu and Laddakh who want to de-link their territory from the valley and also that of the Kashmiri Hindus who want a portion of the valley to be carved out as their homeland. All this can be done if the GOI begins to deal ruthlessly with terrorism first and finishes it off before the next assembly elections are due.

But the big question here is, does the present government and the political leadership have the courage and the vision to do this? Can we exert pressure on the GOI at the highest level, (not K.C.Pant), to now make contact with the KH groups, Panun Kashmir group, and begin to talk in earnest with them to involve them in a strategy to isolate those Muslims who want greater autonomy or secession? The GOI has so far not been visibly in contact with the Hindus of the state, as partners in the process. The GOI has so far not involved Hindus of the state and the people from the ROI with the same publicity and fanfare as it has involved the Muslims. Unless the GOI involves the people of the ROI and ALL THE PEOPLE OF J&K, there can be no lasting solution to the problem of secession in J&K.

The Polity And Economy Of J&K
Kingsley Davis attributed the partition of India in 1947 to the country’s religious demography. And it is the religious demographic composition of the state, which has poisoned the social and political fibre of the state through terrorism, violence and even ‘jehad’. Islam in general and extremist Islam in particular alienates its adherents from all non-Islamic institutions and traditions, both past and present. This alienation has grave national security consequences for those nations where the Muslims constitute a religious minority. Devout Muslims hand over control of their lives to the clergy and both willingly and unwillingly alienate themselves from their immediate social contacts and institutions. Overarching loyalty to Islam is the only force determining the life of the average Muslim around the world. The problem of separatism and secessionism in J&K is a direct consequence of this alienation. This alienation poses a very major threat to social cohesion and national security whenever Muslims in a non-Muslim country have concentrated themselves in any one locality or region.

The politics of expediency and vote bank compulsions have hog-tied the political class of this country, which is avowedly ‘secular’, by paralyzing their mental process from acknowledging that the problem in J&K is extremist Islam. Even as Islamic terrorists continue to isolate, target and execute Hindus and Sikhs, and even as the terrorists declare that they are waging ‘jehad’ against the Indian nation, the political class flays its hands in desperation and pleads with the people of India “not to give communal colour to these killings”. It is obvious then that we must address ourselves to the question of religious demography in the state and think of strategies and means to effect demographic rationalization. Not that alone, we must also confront the dilemma of a secular polity’s in-built inability to squarely acknowledge that Islamic terrorism poses a major threat to nation-states, particularly non-Muslim nation-states and consequently the inability of such a polity to deal with this variety of terrorism.

The Sunni Muslims of the state, who occupy all the political space in J&K today, react violently every time they are asked to comment on trifurcation/quadrification of the state in the economic and political interests of the neglected people of Jammu and Laddakh. But the State Autonomy Report tabled by Farooq Abdullah in the state legislature and subsequently passed by it, envisages reorganizing the state of J&K by re-configuring the regions of Jammu, Kashmir and Laddakh into eight administrative zones, ostensibly for ‘good governance and rapid social development’. But what has escaped the notice of the political and intellectual class is that this re-configuration has been done to coincide with the religious demography obtaining in the state today. And if it has not escaped their notice then it is a sinister conspiratorial silence on their part or the silence of the secular, which will not see ‘minority communal overtones’ even when it punches the nation on the nose.

In the words of Smt. Nancy Kaul, a feisty Kashmiri Pandit and a committed member of Panun Kashmir, speaking at the seminar organized by Vigil” public opinion forum, in January, 2001 -“The nefarious plans of the state government do not end here. They went on to pass a state autonomy committee report under the garb of good governance and rapid social development. The report recommends reconstitution of the state into eight regions along ethno-religious lines for decentralization of political and economic powers. Presently the state of J&K is divided into three regions - Jammu, Laddakh and Kashmir. According to these recommendations, Kashmir itself is to be divided into three regions – ONE - Kamraze, comprising Baramullah and Kupwara, TWO - Nundabad, comprising Badgam and Srinagar districts and THREE - Maraze, comprising Anantnag and Pulwama. The committee also recommends carving out FOUR the Chenab valley comprising Doda and Mahore. FIVE Pir Panchal is to be created with Rajouri and Poonch and SIX the Hindu region of Jammu, comprising Jammu, Kathua and Udhampur, while Ladakh will be divided into Muslim majority Kargil and Buddhist majority Leh, SEVEN AND EIGHT. The report works totally against the interests of the Hindus of the state and Jammu is already surrounded by a Muslim umbrella, which was created systematically, and with the full knowledge and support of the state government. This division of the J&K state is nothing less than the Dixon Plan, which partitioned India at the time of independence”.

It is therefore of the utmost urgency for us to think of strategies to effect demographic rationalization to neutralize the political influence of the Sunni Muslims and also to protect the Hindus, Sikhs and Buddhists from further demographic aggression by the Sunni Muslims of J&K, PoK and Pakistan. The Sunni Muslims of the Valley, who constitute 45% of the population in the valley and a mere 22% of the total population of the state, have nevertheless managed to reserve for themselves a stupendous 46 seats in the state legislature as against just 41 seats for Jammu and Laddakh, whose people together constitute the remaining 78%. Not this alone, according to Professor Hari Om, the Sunni Muslims control the bulk of the trade and commerce in the state and corner a major portion of the benefits of higher education and of all employment opportunities created by industrialization. The Sunni Muslims of the valley who occupy only 6% of the total territory of the state of J&K live off the resources of Jammu and Laddakh by virtue of the fact that after Maharaja Hari Singh abdicated power, political power was transferred from Jammu to the valley – to the Abdullah clan, and effectively, to the Sunni Muslims of the valley. If this were not outrageous enough, the valley Muslims generally do not pay any revenue to the State. It is the regions of Jammu and Laddakh, which contribute over 90% to the state exchequer.

Religious demography continues to play a very major role in the politics and the economy of the J&K state. The regional autonomy report drafted by Dr. Riaz Punjabi and tabled by Farooq Abdullah in the state legislature was not the report submitted to him by the Chairman of the Regional Autonomy Committee, Shri Balraj Puri, who was appointed by Farooq himself. In an article titled ‘Jammu on the brink’, in ‘The Hindu’ dated 21st August, 2001, Shri Balraj Puri says –“Dr. Farooq Abdullah appointed me working chairman of the Regional Autonomy Committee. I submitted my report in June 1998 which proposed devolution of political power at regional, district, block and panchayat levels and allocation of funds according to an objective and equitable formula, based on social indicators such as health, education, share in State services and admissions to technical institutions, contribution to the State exchequer, area and population. Measures were also suggested to safeguard and promote cultures of various ethnic communities. For six months, the Chief Minister could not find time to discuss the report with me, despite many requests. After that, I was removed from the RAC and an officially drafted report was released which proposed division of Jammu and Laddakh regions on religious lines without proposing any devolution of political and economic powers. This was a final blow to the secular identities of these regions and the faith of the people in the ruling leadership of Kashmir”.

It does not require a genius to read between the lines and draw conclusions about the consequences of political power shifting base from Jammu to the Kashmir valley; nor does it take much imagination to decipher from these innocuous lines the damning indictment of successive state governments for having neglected completely the social, economic and political aspirations and well-being of the people of Jammu and Laddakh. And this notwithstanding that along with the states of the North East, it is J&K which gets maximum central assistance. Central assistance by way of per capita plan outlay for J&K is 11 times that of Tamil Nadu, and 14 times more than that of Bihar. And this does not include funds for centrally assisted projects and security related expenditure. The point is, where is all that money going? The familiar refrain of our secular intellectuals is that the ‘misguided youth’ (the Sunni Muslim men of the valley) of J&K who take to terrorism do so because of lack of opportunities, under-development, unemployment, poor economic prospects and so on. If that were true, these intellectuals and the state government will have to tell us where all that money went. What was it spent on? What kind of development projects were taken up by the state? Was this money invested in Jammu, Laddakh or the valley? If so what percentage of it was spent on these three regions? The answers to these lie in Balraj Puri’s report for the regional autonomy committee. Maybe it was because the report was a subtle indictment of the state government for the crass neglect and step-motherly treatment meted to Jammu and Laddakh, that Shri Puri was removed from the RAC and his report rubbished and bypassed. Meanwhile, the fiscal position of J&K is itself precarious, with its Chief Minister confessing in the interview to The Asian Age, Bombay, of 11th November 2000 that the State’s annual expenditure is ten times its corresponding revenue of Rs 700 crores.

Noted political commentator Shri Arvind Lavakare, in one of his weekly columns for Rediff titled “IT COULD FINALLY BE JAMMU vs KASHMIR” dated 12th September, 2000 has this to say about the socio-economic scenario in J&K as stated by two eminent public persons of J&K -"The charges against the Kashmiri clique are many. Writing in the May 2000 issue of “Voice of Jammu Kashmir” magazine, J.N.Bhat, retired judge of the J&K State High Court, alleged that,

1. Thousands of plots carved out in the suburbs of Jammu have been allotted to Kashmiris, all the beneficiaries belonging to one particular community.

2. In some localities of Jammu city, water is supplied after a gap of three to four days, and not even enough of it to quench the thirst of the people. Obviously, funds got for development get misused.

3. In the Jammu region the Hindu minorities of Doda and Poonch districts have been tortured and many of them have found, according to sources, conversion the only option, though they prefer death to forced conversion.

Another eminent person who has made more serious accusations is Shri Hari Om, Professor of History in Jammu University, and a member of Indian Council of Historical Research (ICHR). In a recent newspaper article, the Professor complains that

1. Though Kashmiris constitute roughly 22 per cent of the State’s total population, the mechanism cleverly devised by Sheikh Abdullah’s National Conference Party in 1951 enables it to capture nearly half of the total Assembly and Lok Sabha seats. The trick lies in 46 Assembly segments having been created in the small Valley as against 41 segments combined in Jammu and Ladakh regions that are far bigger and more populated than the Valley. This mechanism is apparently contrary to the rules framed under the Indian Parliament’s Representation of People’s Act and those under the relevant State Act of 1957.

2. Kashmiris hold over 2,30,000 positions out of a nearly 2,40,000 positions in government and semi-government organisations in the Valley. In addition, they corner nearly 25 per cent of the jobs in the regional services of Jammu and Ladakh.

3. All the professional and technical institutions, universities and all the big public sector industrial units like the HMT, television, telephone and cement factories located in the Valley are the sole preserve of the Kashmiris. Besides, they manipulate for themselves more than 50 per cent of the seats in Jammu’s ill-equipped and under-staffed medical and engineering college, and the Agricultural University in R.S.Pura. No such institution exists in Ladakh.

4. The Kashmiris control trade, commerce, transport and industry, and own big orchards as well as landed estates. None of them is without a house. Likewise, the per capita expenditure on woolen clothes in Kashmir is perhaps the highest in the world. Till date, none in Kashmir has, unlike in UP, Bihar and Orissa, died either of hunger or cold.

5. Interestingly, yet not surprisingly, a vast majority of the Kashmiris don't pay even a single penny to the State in the form of revenue due to it. It is Jammu and Ladakh that contribute over 90 per cent to the State exchequer, but a major part of this money is spent not in the extremely backward and underdeveloped Jammu and Ladakh but in the highly prosperous and developed Kashmir Valley "It is possible that the Abdullah clan may well now proclaim on the eve of state elections that development projects and infrastructure development will be undertaken in Jammu and Laddakh but it is more likely to be in the Muslim majority administrative zones of Jammu and Laddakh to be created as per the recommendations of the official and 2nd RAC report. The Abdullah clan has wielded total political control over the state in the last 53 years except for small periods of time when the state was under President’s rule and in the first few years of the last decade when terrorism was gaining momentum.

The following table of the position of J&K in comparison with the other states of India with regard to its economy and social indices is the most effective comment on how the Abdullah clan and the Sunni Muslims of the valley have bled the country white – literally and figuratively. This table is proof of the fact that the Abdullahs, past and present have little to show for the money that they and the valley Muslims have guzzled, money that came literally of the blood and sweat of the people of Jammu and Laddakh and money that came from the blood and sweat of the people of the ROI and which successive central governments have sunk into the state or for the enormous toll of lives of the people of the ROI who have died for the state in the last five decades and continue to die still, with no returns coming back from the state to the Indian Union except more and more untenable and unconscionable demands being made by the Abdullahs, Maliks, Geelanis, Lones and Bhats. It is perhaps a telling tribute to the traditional hospitality and equanimity of the longsuffering people of this nation that the Government of India takes upon itself the untenable financial burden of providing ‘y’ and ‘z’ category security to each one of these anti-national, secessionist terrorists.

Vital Socio-Economic Statistics of J&K State

Source: (a) “ Manorama Year Book 2000” for items 1,4 and 5 citing latest available figures from Directorate of Economics and Statistics and Central Statistical Organisation, New Delhi. (b) “Statistical Outline of India 1999-2000” of Tata Services Limited, Mumbai, for all remaining items 2,3,6,7,8 and 9

Unfazed by accusations of pervasive corruption, criminal neglect of Jammu and Laddakh, shameful indifference to the plight of Kashmiri Hindus living as refugees in makeshift tents in their own country, and other equally and more serious complaints about their lifestyle, their governance and their profligacy, the Abdullah clan continues with demands for more autonomy, greater autonomy, more powers, more central assistance, more special privileges; and there is not one member of the intellectual class who has the intelligence or the courage to ask ‘why’ or ‘what about…’. The state of J&K is an extortionist state. Successive Indian governments, starting with Nehru, have encouraged its parasitic behaviour. And we, the people of India have never asked our governments ‘why’.

The finance minister, Yashwant Sinha, on the 3rd September, 2001, while on a visit to Srinagar, declares that J&K enjoys special status within the country and therefore deserves a special financial package ‘not just for now but for all times to come’. It is a moot point whether Yashwant Sinha considered himself to be immortal and an eternal Finance Minister or whether he was presuming to commit all future Finance Ministers to this special package. The editorial class does not have the courage to point this out to Yashwant Sinha nor will it dare to ask him why is J&K so special that while the GOI will not lift a finger to do anything about pervasive hunger in several states of the Union, it will go against the wishes and the fears of the people of Jammu and Laddakh, it will ignore well-documented cases of corruption and misappropriation of funds by politicians and officials in J&K, it will turn a Nelson’s eye to the total neglect and poor socio-economic conditions of the people of Jammu and Laddakh, and completely impervious to the seething resentment of the people of these regions, go ahead with pumping many more hundreds and thousands of crores into this thankless state for the sole purpose of reviving economic activity in the valley. And just the valley. There is no mention anywhere that these funds are to be used for the overall economic development of the entire state. Not unless the central government succumbs to Abdullah’s pressure for more autonomy, which alone he says will ensure equitable development in all regions. And therein lies the threat.

If, in spite of the perfidy perpetrated by the Abdullah clan on the people of Jammu and Laddakh, we allow the NC to effect the proposed re-configuration of the districts of J&K into eight administrative zones, we are in fact sowing the seeds of and condoning any future delimitation in favour of the Muslims that the state government may effect to the detriment of the political and social interests and survival of the Hindus, Buddhists and other non-Muslim people of the state. Today, Muslims constitute 30% of the population of Jammu and have also managed to concentrate themselves in Kargil, Laddakh, and are reportedly perpetrating religious conversion of the Buddhists through terror besides terrorizing the Hindus away from large areas of Jammu too. Demographic rationalization and crafting an effective political opposition to the NC alone will loosen the stranglehold of the Sunni Muslims and the Abdullah clan over the state of J&K.

THE PROBLEM BEFORE INDIA
There are two broad aspects to the problem of secession confronting the Indian nation and the Indian State. The first is extremist Islam’s inability to co-exist peacefully with adherents of other faiths, particularly when Muslims are a religious minority of a country. The second is the West’s proclivity to redraw national borders by encouraging the making of new nations from old. To this end it has played the game from both ends. On the one hand, American and other western thinkers and think-tank organizations have given ‘nationalism’ a bad name whenever nationalism has resisted their attempts at neo-colonial economic and political ambitions. On the other, they have encouraged and even goaded subversive ‘nationalism’ in those nations where they have a strategic objective, by sanctioning and legitimising demands for self determination by every kind of minority group which claims it is a separate nationality. Only sometimes, it will be cloaked in the language of ‘legitimate rights of minorities’ or the ‘right to self-determination’ - from Chechnya and Kashmir to Xin Xiang and East Timor. And this doublespeak is practiced unabashedly in the name of American or western interests. And this double-faced ness was to the fore in the role of the UN Security Council in the problem of J&K. More on this a little later.

The Government of India is thus impeded at every step of the way in dealing decisively with Pakistan and terrorism in J&K by both world opinion (read unwarranted interference) and the politics of secularism, aided and abetted by the secular intellectual establishment in academia and media. Let us look at the domestic elements, which have made the problem of J&K what it is today.

There has never been any convincing answer on why Kashmir and Kashmiris are more special than the rest of India. If the Instrument of Accession was the same for the princely state of J&K as it was for the rest of the 562 princely states which integrated with the Indian Union after Independence, (the Constituent Assembly debates speak of 565 princely states), what was the rationale for granting that state alone the right to have its own constitution and its own flag? What was the rationale for Art.370, and why did the Constituent Assembly consent to this potentially isolationist provision without a vigorous debate, in spite of the fact that there was strong opposition to the provision from Sardar Patel, Dr. Ambedkar and from even among the Congressmen of the day? When all other princely states transcended the separatist provisions of the Instrument of Accession by integrating themselves totally with the Indian Union, why was J&K alone allowed to have its own flag, its own constitution and the crippling provision of Art.370? Why are we even tolerating the demand for more autonomy, if it weren’t for the fact that it is a Muslim majority state and somehow the ROI must be eternally grateful to it for choosing to stay with ‘secular’ India instead of Muslim Pakistan! Or was it the fact that Nehru, with his characteristic arrogance compounded by whimsical decision-making, did not have the intelligence or the vision to imagine the price that this nation would be paying for long afterwards for the benighted ignorance and stupidity which he brought to bear on all his decisions with regard to the state of J&K – whether it was running whining and squealing to the UN to get Pakistan to vacate the territory of J&K it had forcibly occupied, or to foolishly announce a plebiscite in J&K to enable the people of J&K to ratify the accession, whether it was railroading the Constituent Assembly into accepting the special provision of Art. 370 or whether it was granting his home state the right to have its own flag and constitution. Nehru then and Nehruvian politics and intellectualism today are solely responsible for the monstrous dimensions that the problem has assumed over the years. We, the retrograde and rootless intellectuals of India were shocked out ofur ignorance and indifference induced stupor when a very toothy, very junior member of the US State Department, at the time of Bill Clinton’s first term as President, and known for her pro-Pakistan leanings, breezed into our country and brazenly declared that she (and the US by inference) did not accept the validity of the Instrument of Accession by which the Kingdom of J&K became an integral part of the Dominion of India. This was the time the USA, intoxicated by its success in having finally broken up the communist monster into chewable bits, decided that it will arrange the rest of the world according to its design. Thus began Clinton’s interventionist role in the middle-east, in Ireland and in J&K. We understand now that Clinton’s invitation to Gerry Adams to Washington and their inter-personal bonhomie offended the sensibilities of patriotic British who were offended to see the President of the USA covorting with a terrorist. And it was around this time that the US created the Hurriyat Conference out of a motley group of pro-Pakistan indigenous Islamic terrorists. Clinton’s (and by inference the USA’s) reasoning being, these respective national governments must sit across the table with terrorists and negotiate peace. Perish the thought that the USA has never negotiated peace or anything else with those it considered its enemy – Libya, Iraq, Somalia, or Afghanistan! It is noteworthy that not one of these countries has been able to ‘negotiate’ peace with terrorists till today. However, the USA has managed to aggravate the problem for the GOI since then because the Hurriyat, a majority of the Sunni Muslims of the valley, anti-Hindu members of media and academia and writers of subaltern history, are also now openly questioning the Instrument of Accession and India’s claim to J&K.

THE LASTING LEGACY OF COLONIALISM
The lasting legacy that the British left in India, which continues to fester even today, is thehavoc it wrought to the newly independent nations when it created new nations from old. Our Marxist and rootless intellectuals have for long parroted the opinion that India became a nation only because the British colonised her. This contention borders on the obscene. Far from being the truth this claim stands truth on its head. When the British were forced to quit this country they wreaked their vengeance by dividing and fragmenting a culturally and socially cohesive nation. At the time of independence, this nation was torn apart in three segments – those regions that were under the direct administrative, executive, legislative and judicial control of the British, namely ‘British India’ was partitioned into India and Pakistan and the third segment comprised all the princely states, more than 500 of them. These were not a part of British India but had accepted colonial paramountcy over them, and in 1947, the British played their most devilish move so far when they left these princely states free to choose for themselves whether they wanted to ‘accede’ to India or Pakistan. Implicit in the decision to allow them to choose to accede was the assumption that these states were not a part of the Indian nation. This evil intent to leave behind a disharmonious, fragmented nation was realised through Partition of the Indian nation on the basis of religion and the Instrument of Accession by which the left-over princely states were to decide their future. The Instrument of Accession was a legal document to enable these states to accede to India or Pakistan if their hereditary rulers so desired. The third option, to remain independent has not survived in the collective memory of this nation and we therefore fail to appreciate the extent of Britain’s evil intentions when it began to plan to quit India or the super-human and super-heroic endeavor of Sardar Patel who welded the fragmented nation into a cohesive whole again.

The Instrument of Accession, Sardar Patel’s God-inspired task, and the problem of secession and self-determination, demands for autonomy, art. 370, the UNSC resolutions, the plebiscite issue, must all be considered against the background of what the British intended would be the legacy of Independence for India and the West’s conception of the emerging, post-colonial, new world order. Their intentions were realised beyond their expectations with the active co-operation of Nehru. It is a sad commentary of the times that towering nationalists and nationalist Hindus could not prevail upon Nehru to desist from practicing his own brand of the two-nation theory in J&K when he foolishly committed the nation to a series of measures which sowed, sustained and strengthened the state’s isolationist and separatist tendencies.

THE INSTRUMENT OF ACCESSION
Text of Instrument of Accession

“Whereas the Indian Independence Act, 1947, provides that as from the fifteenth day of August, 1947, there shall be set up an independent Dominion known as INDIA, and that the Government of India Act, 1935, shall with such omissions, additions, adaptations and modifications as the Governor-General may by order specify, be applicable to the Dominion of India;

And whereas the Government of India Act, 1935, as so adapted by the Governor-General provides that an Indian State may accede to the Dominion of India by an Instrument of Accession executed by the Ruler thereof;

Now, therefore, I, Shriman Indar Mahandar Rajrajeshwar Maharajadhiraj Shri Hari Singhji Jammu Kashmir Naresh Tatha Tibbet adi Deshadhpathi Ruler of JAMMU AND KASHMIR State in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession and

1. I hereby declare that I accede to the Dominion of India with the intent that the Governor General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this, my Instrument of Accession, but subject always to the terms thereof, and for the purposes of the Dominion, exercise in relation to the State of Jammu and Kashmir(hereinafter referred to as "this State") such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India on the 15th day of August 1947 (which Act as so in force is hereinafter referred to as "the Act").

2. I hereby assume the obligation of ensuring that due effect is given to the provisions of the Act within this State so far as they are applicable therein by virtue of this my Instrument of Accession…”

In the Indian Dominion the accession was made under Section 6 of the Government of India Act, 1935, as adopted by Section 9 of the Indian Independence Act, 1947. The Instrument of Accession was thus the legitimate offspring of the Government of India Act, 1935 and the Indian Independence Act, 1947. When Robin Raphael put her foot in her mouth, she probably did it knowing full well that this would open a can of worms. But not in the way she had hoped. One senior BJP politician had the presence of mind to retort promptly that if the USA did not accept J&K’s accession to India as being final, India was not beholden to accept partition as being final either. But unfortunately, this was not the official Indian reaction to American bumptious ness, which questioned the contours of the Indian nation-state.

It is the same unwillingness to treat a malaise at its very beginning, which created the problem of separatism in J&K in 1947. The Instrument of Accession was drafted in a manner intended to keep the princely states from integrating wholly into the Indian Union. Our intellectuals then and now have never questioned the decision to allow the British to decide on the arrangements to be put in place in 1947. Thus we never asked ourselves, if the terms of the Instrument of Accession could have been different. Justice Anand’s book states that the draft of the Instrument of Accession had been circulated for discussion when Lord Mountbatten, as the Crown Representative, addressed the Chamber of Princes on 25th July, 1947. As per the terms of this Instrument, those princely states which acceded to the Indian Union would have to surrender Defense, Foreign Affairs and Communication to the jurisdiction of the Center and all other subjects would be in the absolute control of the monarchs unless otherwise decided by the monarch and the GOI through mutual agreement. Unlike the Provinces, which were uniformly governed by the Constitution of India, the princely states, even after acceding to India, thanks to the terms of the Instrument of Accession, remained outside the purview of the Indian Constitution in all aspects of administration and polity except those pertaining to Defense, Communications and Foreign Policy.

The consequences of this provision in the Instrument for the administration of the fledgling nation-state in the throes of the trauma of partition and total economic, social and political chaos, was there for all to see. And yet, we accepted the Instrument of Accession as it was designed, with no demur. Sardar Patel then set about the stupendous task of integrating all the princely states into the Indian Union, transcending the separatist provisions of the Instrument of Accession. But not J&K. That state was Nehru’s personal fiefdom then as it is the Abdullah clan’s fiefdom now.

To illustrate the kind of mindless ness with which we uncritically accept grave decisions and events I will quote from Jagmohan’s book ‘My Frozen Turbulence’, from the chapter on Art. 370. “The format of this Instrument of Accession was exactly the same as was executed by other heads of the princely states. On the insistence of the Government of India, it was agreed that the final decision with regard to accession would be taken by the Constituent Assembly of Jammu and Kashmir. For the intervening period, that is, from the time of the execution of the Instrument of Accession to its consideration by the Constituent Assembly of the state, temporary provisions had to be made in the Constitution of India. And this was done by incorporating Article 370.”

Just like that! We commit the first folly of accepting the Instrument of Accession with all its separatist provisions and then we decide that the people of J&K, must ratify the decision of their Maharaja, (the people of the other princely states which acceded to India were not called upon to ratify the decision of their rulers) and then we allow that state to have its own Constituent Assembly to formulate its own Constitution, then we allow that state to have its own flag, and then we create the monster of Article 370. And even Jagmohan narrates the sequence blandly. These were the momentous decisions, which went into the making of the horrendous problem of separatism and secession in J&K and no Indian parliament, and at no time has the nation as a whole, ever discussed or debated the folly of these decisions. We don’t want to debate them even today. Our establishment intellectuals in the media and academia don’t even know the finer details of these events and continue to blather about alienation and autonomy.

“On the insistence of the Government of India” says Jagmohan, the final decision on the accession was to be taken by the people of J&K. Why so? Is Jagmohan then contradicting himself when he says that the Instrument of Accession was the same for all the princely states? There is no mention in the Instrument that the accession needed to be ratified by the people. Then the question arises, what was so special about the people of J&K that they alone were given the option to ratify or reject the decision on accession?

This option to reject or ratify the accession was given to the people of J&K because the GOI had decided that they would have their own constitution. An untenable reason given for this momentous decision was that even much before 1947, the Maharaja of J&K was intending to craft a separate constitution for J&K. It is possible that the Maharaja may have wanted J&K to have its own constitution as a protective measure against the British. Or even that the Maharaja was moving away from conventional monarchy and wanted a modern framework for administration. But after 1947, the situation was different and it was not as though every decision made by the rulers of the princely states before 1947 was relevant after they had all acceded to the Indian Union. Just as there was no conceivable reason why the people of J&K alone could review the accession, there was no conceivable reason why J&K alone should have been given the special privilege of having its own state constitution though Justice A.S.Anand in his book on the constitution of J&K, which was his doctoral thesis for the London university, seems to justify it on the grounds that the people of Kashmir had known much suffering and had by their sheer courage and fortitude deserved their own constitution. The separatism intrinsic to the Instrument of Accession is thus further sharpened by the state preparing to have its own constitution with the sanction of intellectuals like Justice Anand who cannot tell us how the suffering of the people of J&K is somehow more special or more acute or painful than that of the people of the rest of India.

The Constituent Assembly of the state of J&K was constituted in August 1951 by having its members elected through the democratic method of universal adult suffrage and the first meeting of this assembly was held on 31st October, 1951. On that day the terms of reference for the constituent assembly was spelt out by Sheikh Abdullah – not only to give themselves a state constitution but also to decide on the status of J&K and to make constitutional arrangements for the future of the state. Sheikh Abdullah specified the three options available to the people of the state (and these options were made available to the state by the GOI, let us remember, after the state had acceded to the Indian Union) – to ratify the accession to India, to choose to accede to Pakistan or to declare independence.

The Indian government went to the rescue of the Maharaja and the people of J&K in October, 1947 when Pakistan invaded that territory, only because the Maharaja signed on the Instrument of Accession. The question which posterity is asking now is then how could the GOI allow the state to elect its constituent assembly which could very well have opted to accede to Pakistan or declare independence in 1957, when that constitution became operative? Why should the people and Government of India defend and protect a state which was given the option to secede from India? It is another matter altogether that the people of the state of J&K ratified the accession. They may so easily have opted not to do so. This country has not discussed the utter casualness with which the political leadership of the country in 1947 allowed the state of J&K to have its own constitution, the absolutely root cause for the separatism plaguing the state and the country today.

The state constitution of J&K was established in November 1956 and became fully operative on the 26th January, 1957. Not to put too fine a point of it but the Hurriyat and other groups which keep harping on ‘heeding the wishes of the people of Kashmir’ forget that the people ratified the accession through Section 3 of the constitution of J&K which declares categorically that the state is and shall remain an integral part of the Indian Union. And Section 3 of the state constitution is non-amendable under Section 147 of the same constitution.

So much for the wishes of the people of the J&K. It is not as though the UN respected the democratic verdict notwithstanding its pious claims of worship at the altar of democracy. The Security Council Resolution of March 30, 1951 made two critical observations with regard to the formation of the Jammu and Kashmir Constituent Assembly. In the third paragraph of that Resolution, the Council observed that "the area from which" the proposed "Constituent Assembly would be elected is only a part of the whole territory of Jammu and Kashmir." The fifth paragraph of the Security Council Resolution of March 30, 1951 had the unmitigated gall to make its second inexplicable observation on the exercise. It said therein that "any action that the (Constituent) Assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the above principle" ("of a free and impartial plebiscite"). The sum and substance of this piece of imperialist impertinence being that the UN was not obliged to respect the state constituent assembly or its proceedings.

Not content with taking momentous decisions with little thought to their consequences, we committed the ultimate folly on allowing the international community a foot-hold in J&K when in January 1948, India’s representative in the UN Security Council allegedly committed the country to a plebiscite in J&K to ascertain the views of the people of J&K on the state’s accession to India.

"In accepting the accession they (India) refused to take advantage of the immediate peril of the Ruler 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”, he is supposed to have reported.

The Instrument of Accession, the defining provision by which the princely states acceded to the Indian Union is thus made a temporary provision by the Government of India (the truth about who exactly was responsible for this foolishness needs to be verified), for no sound political reason, with regard to the state of J&K alone. There is a lesson in this here and in the subsequent events, which unfolded, for all of us who must devise strategies to keep the nation together. We made it easier for the UK, the USA and the UN to serve us ill through our own incompetence and wilful cupidity.

THE UN RESOLUTIONS AND HOW A ‘SITUATION’ BECAME A ‘DISPUTE’.
There are several lessons for us in the events of 1947 – not the least of them being that it is the leadership of a nation which determines the course of history and that national security can be defended and protected only by that nation itself. This is as true today as it was in 1947. National security was given the go by when Nehru listened more to Mountbatten than to Sardar Patel and ran to the UN to do his work for him while national integration was achieved and strengthened because Sardar Patel relied on nothing but his own courage and counsel. And faith in his own destiny.

The events which led up to December 1947 are well recorded and do not warrant repetition. Suffice to say that after India won the Battle of Shatlang, after Baramulla was recptured from the marauding Pakistani hordes, and after our troops had reached the heights of Uri, all that remained to be done was for our troops to move into Pakistan and deliver the ultimate, punitive blow for daring to invade Indian territory. The GOI did indeed warn Pakistan on 22nd December, 1947, that it would move into Pakistan if Pakistan did not forthwith cease to wage this terrorist war in J&K. Gandhi ji too is reported to have written to Atlee asking Britain to restrain Pakistan from embarking on this destructive path but Mountbatten and Nehru’s arrogance changed India’s course of history.

Gandhiji’s letter to Atlee squarely put the onus on the British government to rein in the monster that they had given birth to. But Gandhiji’s tactical political move, clearly understood by Mountbatten was beyond Nehru’s comprehension. Pakistan was created by the British not only as a puppet state of strategic geographical importance vis a vis Russia, to protect the West’s interests in oil in the middle east but also as a permanent lever with which to check India; and Kashmir was meant to be the proverbial thorn in India’s flesh. The British government had everything to gain in keeping the tensions running high between India and Pakistan via J&K. The British government therefore could not afford to have India moving into Pakistan and crushing it nor could it afford to be drawn forcibly into the situation forced upon it by Gandhi ji, compelling it to deal with Pakistan.

It was at this very crucial moment in India’s history that Mountbatten, Nehru’s Rasputin dissuaded him from attacking Pakistan and instead persuaded him to approach the UN to deal with Pakistan’s transgression. This effectively mitigated the pressure, which Gandhiji had put upon the British government to get Pakistan to back off, and more importantly succeeded in keeping the problem of J&K unresolved. And it has remained unresolved even in 2001 because the Government of India has not applied its mind to free itself from the legal tangle created by Art. 370 and the state constitution of J&K. to say nothing about its ineptitude in dealing with the international community. The gratuitous interference of the UN with the P5 lurking sinisterly in the background have further debilitated this country’s will to resolve the problem firmly and with its own strength.

Nehru decided, on Mountbatten’s advice, and to India’s eternal shame and misfortune, to lodge a complaint with the UN Security Council. That was done in January 1948 when India invoked Article 35 of the UN Charter. The text of India’s complaint is recorded in the Security Council document of 2nd January 1948. India’s complaint said, “Since the aid which the invaders are receiving from Pakistan is an act of aggression against India, the government of India are entitled, in international law, to send their armed forces across Pakistan territory for dealing effectively with the invaders”. The Government of India appealed to the Security Council to ask the Government of Pakistan ---

(i) To prevent Pakistan Government personnel, military and civil, participating in or assisting the invasion of Jammu and Kashmir State;

(ii) To call upon other Pakistani nationals to desist from taking any part in the fighting in Jammu and Kashmir State;

(iii) 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.”

To understand the scope for intervention in the affairs of J&K by the international community, provided by the UN, one must read Articles 33, 34, 35, 36 and 37 of the UN Charter together. India, as a member of the UN, availed of her right under Article 35 of the UN Charter to lodge a complaint against Pakistan for invading J&K with the malevolent intention of grabbing territory, which rightfully and legally belonged to India.

Although Article 35 has three clauses, clauses 2 and 3 are irrelevant because clause 2 applies to those countries that are not members of the UN while clause 3 refers to matters arising out of a discussion in the UN General Assembly. Hence it is under the following Article 35.1 that the complaint was made.

Article 35
1.Any Member of the United Nations may bring any dispute, or any situation of the nature referred in Article 34, to the attention of the Security Council or of the General Assembly.

India’s complaint, stated above to the Security Council, was so clearly situation-centric and Pakistan-centric that no one ought to have deemed India’s complaint to have been about ‘a dispute’. Thus the Security Council had the right under Article 34, below, to investigate the complaint but only in terms of it being a ‘situation’.

Article 34 of the Charter specifies the right of the UN to investigate for itself the situations under which a nation has brought to the notice of the UN General assembly or the UN Security Council, situations and/or disputes causing tension between nations.

Article 34
The Security Council may investigate any dispute, or any situation, which might lead to international friction or give rise to a dispute, in order to determine whether the continuation of the dispute or situation is likely to endanger the maintenance of international peace and security.

Thus, if Articles 34 and 35 of the UN Charter are read together as they should be, for a complete understanding of what is involved, then what emerges is that India brought to the notice of the UN, a ‘situation’ and not a ‘dispute’, as is mentioned in the first line of Art. 34. The ‘situation’ was that which arose from Pakistan’s aggression against India and its forcible occupation of territory that legally belonged to the Indian Union as of 27th October, 1947, under the provision of the British Government’s Indian Independence Act, 1947. And all that India expected the UN to do was to “investigate the situation” as per Art 35, and then prevail upon Pakistan to vacate the areas under forcible occupation and to withdraw its troops from Indian territory. The first folly was thus committed when we permitted the UN the right to investigate under Article 35.1 a ‘dispute’ instead of insisting that it should investigate our complaint only in terms of it being a situation. The right to investigate our complaint as a ‘dispute’ implied that the UN would not take India’s word about Pakistan’s aggression into J&K but would go farther and investigate too Pakistan’s claim that J&K’s accession to the Indian Union was disputable. We had stumbled at the very first step in the process, which would subsequently cause the J&K issue to slip out of our control.

The UN Perfidy and India’s subsequent Follies

It is amazing how passive and inept we are when it comes to dealing with the international community. When Iraq moved into Kuwait a decade ago, the USA and the UK carpet bombed Iraq and laid to waste a prosperous, modern Islamic nation. And this was done not for any lofty motive but merely to protect its oil and gas interests in the middle-east. India did not applaud the American move but it did nothing to condemn it unambiguously either. India also failed to remind the world and the UN in particular that its case in the UN against Pakistan similarly invading J&K in 1947 was dealt with differently, and far from getting Pakistan to give back the territory it had pirated from India, the UN converted the ‘situation’ into a ‘dispute’ and made J&K a disputed territory, made Pakistan a party to the dispute and in effect, questioned India’s claim to the territory of J&K by questioning the validity of the Instrument of Accession. Aggression, invasion and terrorism are concepts which are defined differently it seems, depending on whose interests are involved.

This ineptitude in dealing with the international community was just as marked in January 1948 when after we lodged the complaint with the UN, events moved so rapidly, that we failed to respond to them with intelligence or vigour. Just as we meekly and unqualifiedly accepted the Cabinet Mission report, the Government of India Act, 35 as the basis of our Constitution, just as we accepted unquestioningly the terms of the Instrument of Accession, the terms of Partition, so too did we accept passively the rapid moves that the UN made with regard to J&K.

Shri Arvind Lavakare quotes from a Times Of India news report which gives us the background of these events as declassified from US archival material.

“Some secret US archives mentioned in an article published in The Times of India, Mumbai, of 11th August 2000 are said to reveal that it was Britain, and its influence over the USA, which back-stabbed India in the Security Council. Yes, the sway of the Council’s permanent members on UN actions may well have begun almost with its inception in 1945.” And Shri Lavakare describes the unfolding of these events thus – “Now to Britain’s perfidious role in the Security Council. According to Narendra Singh Sarila, the author of the earlier mentioned edit page article in The Times of India, Mumbai, 11th August 2000, the US State Department’s archives reveal that ----

· By December 1947, the American Embassy in London was reporting to Washington that “Mountbatten was endeavouring to persuade India to agree to appointment of UN intermediates including USA (for Kashmir).” General George Marshall, the US Secretary of State, was known to have suggested that a reference to the UN “would complicate the issue.”

· Carrying tales about Nehru’s Brahmin logic issuing threats to Pakistan, Britain succeeded in making the US address a note on 30th December 1947 to Nehru “not to take precipitous action that would seriously prejudice international goodwill and prestige.”

· Throughout 1948 Britain pressed America to recognise Pakistan’s occupation of Kashmir’s Northern Territories and to disregard the Maharaja’s accession to India. When General Marshall as well as his assistant, Dean Rusk, continued to be unwilling to challenge the validity of Kashmir’s accession to India or to recognise Pakistan’s presence in any part of J&K, the British Foreign Secretary, Ernest Bevin, let the cat out of the bag that the issue was strategic and not merely one of constitutional or legal propriety. Britain’s reasoning was that India would not support it to counter a Soviet thrust towards the oilfields along the Gulf, and wanted a “loyal” government in the strategic north-west abutting Iran and Afghanistan.

The most stunning blow of those American archives is that the US State Department’s continued persistence that Pakistan should withdraw from the entire state (of J&K) before the holding of a plebiscite, changed later -after India agreed to the cease-fire and Nehru expressed willingness to consider partitioning Kashmir leaving Gilgit in Pakistan.”

The result of the deliberations on the floor of the Security Council after India lodged the complaint against Pakistan, was the resolution of 17th January 1948 in which the Council called upon both “ to take immediately all measures within their power …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…” (Note the use of the word “situation” twice in that sentence.)

That resolution of 17th January 1948 was clearly interim action on our complaint of a “situation” in terms of Article 35 and was accepted by both India and Pakistan.

FOLLY # 3
If folly number 1 was India’s failure to deal ruthlessly with Pakistan in November 1947 itself, folly number 2 was running to the UN with the hope that it will render justice. But it was folly number 3 which set in motion a series of events which spun the situation out of our control.

It was on 20th January 1948 that India allowed the UN to take an attitude that was to dramatically impact the content of future UN debates and decisions.

On that day, the Security Council’s resolution established a three-member Commission (called United Nations Commission on India and Pakistan---UNCIP) and invested it with a dual function, one of which was “to investigate the facts pursuant to Article 34 of the Charter of the United Nations.”

Now since India had brought attention to a ‘situation’ – and not a ‘dispute’ the UNCIP should have been expected to pursue the facts only of the ‘situation’ created by - (i) Pakistan’s aggression into J&K at a time when that Princely Sate was independent and (ii) Pakistan’s continuance of that aggression even after that State had acceded to India through a legal document crafted by the British and recognised by the British Parliament.

Instead, the above UN resolution of 20th January 1948 asked its Commission, as its second function, to also investigate facts of “the situation in the Jammu and Kashmir State set out… in the Pakistan Government’s letter dated 15 January 1948”, which stated that not only did Pakistan reject India’s charges but also made counter-charges about

(a) India’s persistent attempts to undo the Partition scheme; (b) a pre-planned and extensive campaign by India of genocide against the Muslims in East Punjab and Punjab Princely States; (c) the acquisition by India of Kashmir’s accession was by fraud and violence.

The impertinence of it all! Barely two months after independence, Mountbatten was still the governor-general of India, it was he who presided over partition, he who presided over the formulation of the Instrument of Accession and its operation, it was he who advised Nehru to carry the complaint against Pakistan to the UN, he, more than anybody else knew that the Instrument of Accession was the offspring of the Government of India Act, 1935 and the Indian Independence Act 1947 and yet there are no records which suggest that Mountbatten protested to the UN about its distorted (perhaps wilful) understanding of the situation in India with regard to J&K.

It is not clear why India accepted without demur not only the appointment of the UNCIP but also the terms of reference of its task. India had brought to the attention of the UN Pakistan’s invasion of Indian territory and all that it asked of the UN was that the UN should prevail upon Pakistan to withdraw from the territories it had forcibly occupied. All that the UN had to do was to verify the situation from the governor-general, Lord Mountbatten and then force Pakistan into compliance.

Why did Mountbatten not report the facts of the invasion to the British parliament, and if he did, why did the UK not uphold India’s claim to the territory of J&K? Why did Mountbatten not present India’s case to the UN? And if the UN did indeed possess all the facts of the situation, why did it appoint the UNCIP at all instead of demanding of Pakistan that it surrender to India the territories it had occupied and send its troops back to the barracks? Most importantly, why did India not fight its case with vigour? Why did India not put Mountbatten and the UK in the dock? Why did India allow the UNCIP to be constituted and why on earth did we allow the UN to make Pakistan a party to the dispute by allowing the UNCIP to investigate the truth or otherwise of Pakistan’s allegation that India had “acquired J&K by force and violence”.

Pakistan’s allegations were made not formally under any article of the UN Charter. These wild allegations were made through a letter dated 15th January 1948, the contents of which I have quoted above. The silence of the UK then as now, is sinister, as was that of Mountbatten while India’s ineptitude by allowing the situation to spin out of our control in the UN was nothing short of the most criminal.

Let us quickly recap the events between 22nd December 1947 and 20th January, 1948 to underscore not only the perfidy of the UK and the UN but also India’s criminal ignorance of the import of the UN’s machinations.

In November 1947, when Pakistan was routed from Shatlang and Baramullah and Tanmarg and Gulmarg, all that remained to be done was for India to move into Pakistan and inflict a crushing blow before retrieving the territories occupied by Pakistan in J&K. Indeed , on the 22nd of December, 1947, India issues a stern warning to Pakistan to withdraw its troops from India or else India will be compelled to move into Pakistan. But Mountbatten persuades India not to invade Pakistan; instead to lodge a complaint with the UN, which, he probably assured Nehru, will bring pressure to bear on Pakistan to surrender occupied territory and withdraw troops. India lodges the complaint in January 1948 with the UN under Art.35 of the UN Charter. Pakistan responds with a letter to the UN dated 15th January 1948, rejecting India’s accusations and making wild allegations of its own against India. On the 17th, The UN Security Council passes its first resolution on the complaint by asking both sides to exercise restraint (asking both sides to exercise restraint has been the refrain of the international community every time Pakistan goes on the offensive and India threatens retaliation. The ‘exercise restraint’ advice is thus always aimed at India, starting from 1947 up until October 2001) and not to do or say anything to aggravate the situation. It is of course beside the point that the situation had already been aggravated when Pakistan invaded J&K. The UN, far from ascertaining the facts of the situation from India’s Governor-general, the last Englishman in India, goes ahead to constitute the UNCIP with its dual tasks, exactly three days later. Between the 17th of January and the 20th, the UN converted the aggressor into ‘a party to the dispute’ by asking the UNCIP to investigate Pakistan’s claim that India had occupied J&K by force and violence. If the UN and UK displayed criminal duplicity on the invasion and forcible occupation of J&K by Pakistan, India’s passive acceptance of the UN’s duplicity was equally criminal. For what the political leadership was squandering away was not an opportunity or the nation’s liquid assets, which could have been created again but our land, our bhoomi, which has been ours since Creation. This vision, this seriousness was lacking in our political leaders then, it is lacking in them today.

Our anger should be directed more against our own leadership, not only for failing to tackle the problem posed by Pakistan ourselves immediately and effectively in 1947, but also for the lack of intelligence and vision to foresee the wild goose chase on which the UN was taking us. From then on, India lost the initiative and the will to fight to the finish and retrieve what was lost. Articles 33, 36 and 37 of the UN Charter when read together state what nations must do bilaterally to resolve the issue. If they fail to thus resolve it, they may submit the matter before the UN Security Council and if in the event of even the Security Council not succeeding in getting the dispute resolved, then the parties to the dispute can resort to the option of placing the dispute before the International Court Of Justice which will resolve it “ in accordance with the provisions of the Statute of the Court”.

Mountbatten, the UK and the UN had succeeded in disarming India. We allowed them to make us impotent and allowed them to seize the initiative on an issue, which had national security and national integrity implications. They managed to put the thorn of J&K deep into our body politic and our political leadership has allowed it to remain there and fester.

It was seen earlier how India not only allowed the UN a foothold on the question of J&K’s accession to the Indian Union, by allowing it the right to question India’s veracity about Pakistan’s aggression into J&K, but also allowed it subsequently to designate Pakistan, as a party to the dispute. This effectively transformed J&K into a disputed territory and from being an issue which concerned just India and Pakistan, we allowed the UN to transform it into an “issue which threatened international peace and security”. And once that happened, the UN is now in a position to take recourse to one or all of the following Articles of the UN Charter.

Articles 33, 36 and 37 of the UN Charter.

Article 33
1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means

Article 36
1. The Security Council may, at any stage of a dispute of the nature referred to in Article 33, or of a situation of like nature, recommend appropriate measures or methods of adjustment.

2. The Security Council should take into consideration any procedures for the settlement of the dispute, which have already been adopted by the parties.

3. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court

Article 37
1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council.

2. If the Security Council deems that the continuation of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate.

Folly after folly after folly……Folly number 4
Within a matter of a month India was reduced from a position of unassailable strength and control, to a position of total loss of initiative and helplessness. Not content with having allowed the UN to make fools of us, Nehru, to compound the folly of running to the UN in the first place, on the 27th of January, 1947, one week after the UN constitutes the UNCIP, announces over the All India Radio that India will conduct a plebiscite in J&K to ascertain the wishes of the people. An announcement he had no right to make, according to M.C.Mahajan, India’s first Chief Justice of the Supreme Court and the erstwhile Prime Minister of J&K. The Instrument of Accession was signed by the Maharaja of J&K, who did so on behalf of the people of J&K. Nehru violated the Instrument of Accession by calling into question the Maharaja’s right to decide on behalf of his subjects. Ultra Vires is the legal jargon to describe Nehru’s whimsical action. It is the stick which Pakistan in the last five decades and its domestic stooges in the Valley for a decade now, have been using to beat us with.

There is worse to come. There really was no need for the UN to constitute the UNCIP because the veracity of India’s complaint could have been borne out by the UK or by the then Governor-general of India. The UN, at the instigation of the UK had embarked on a deliberately malafide delaying process intended towards not delivering prompt justice to India. India should have read the writing on the wall; instead, it blunders on from one folly after another. Having allowed the UNCIP to be constituted, in itself a slap in India’s face, India then goes on to publicly committing herself to a plebiscite in J&K. and then, even after failing to get the UN to act expeditiously on its complaint, India continued to be the mute spectator in the dangerous charade played out by the UN and Pakistan.

Folly Number 5
The outcome of it all was that

· Without attaining our military objectives we agreed to a cease-fire on 1st January 1949; on 27th July 1949 we agreed to a Cease-Fire Line that was only some 15 miles from Srinagar.

· We agreed to a UN Military Observers Group being posted on the Cease-Fire Line. It’s a different matter that the Group’s purpose all along has been so nebulous that no one ever even mentions it --- not even when Pakistan perpetrates another invasion as during the Kargil War.

· Pakistan retains about one-third of the independent territory it invaded in October 1947 while India --- to which that independent territory legally belonged from 26th October 1947 --- has been left high and dry by the UN and the international community. Both these august bodies from January 1948 until October, 2001, have nothing but patronising advice and admonitions to give to India.

Who is to blame? Nehru, for his stubborn arrogance, which would not permit him to seek wise counsel or the towering leaders of the time, none of whom could individually or collectively stop Nehru from committing this nation to a self-destructive course of actions? Or the intellectual leadership, which had sold its soul at the altar of the cult-worship of Nehru?

The Last Folly – Criminal Passivity
The criminal passivity with which we accepted all humiliations and injustices was crowned in 1964, when Pakistan gratuitously gifted away to China over 2050 sq. miles of the territory of J&K it had pirated from India in 1947. The most stunning blow that the UN and the international community must be considered to have delivered to India was their sinister silence over the black deal between China and Pakistan. That black deal between Pakistan and China came about in February 1963, a year before Nehru’s death.

It is not as though we have learnt our lessons. Pakistan’s agenda for India is well-known and unambiguous. It will continue to invade our territories, its ISI will penetrate our organizations, and continue to perpetrate terrorism until it has achieved its objective of getting India fragmented. In the beginning wrenching J&K from India was an end in itself. Today, J&K is only the gateway for its stated objective of bringing about India’s disintegration. The UN and the international community continue to use Pakistan as a lever to check India. And India continues with her mindless acceptance of the international community’s diktat with regard to J&K. We have accepted the LoC to be sacred. We have assured the world that we will never cross it, and we have assured the world that we will never ever invade Pakistan to teach it a punitive lesson. We have given them all these assurances without getting anything in return. The political leadership today, as in 1947-48, is still hoping that the international community and world organizations will persuade Pakistan to see reason and persuade/compel it to give back the territory it has occupied through aggression.

The nation has to break the shackles and the manacles it has placed upon itself. The nation and her people must be galvanised into defending and protecting our territories. Simultaneously we must also work out strategies to get back lost territory and also work towards the disintegration of Pakistan. History is never written objectively, no matter what scholars may say. Events are recorded and recounted in the context of Time and how those events affected the narrator. I have attempted to narrate the significant events of 1947-48, which continue to plague us still, from the point of view of a Hindu who has a political identity and who feels that the political leadership then and now has failed to fulfil the political aspirations of Hindus. To put it bluntly, the political leadership has gone out of its way to thwart and stunt the Hindu’s political identity. This paper is an attempt to goad some of us into becoming active thinkers so that we enable ourselves to become proactive in J&K. To become proactive we must first understand the depth of our inactive ness, lack of initiative and helpless ness. We must also understand clearly how easy it is for a leader or leadership to do grave injustice to the nation by choosing a self-destructive course of action. We must also understand why it is criminal to remain silent when injustice is done to Hindus and to the land of the Hindus. And our Constitution is the best example of wilful negligence of Hindu interests. But that is another issue which merits total attention in itself. Suffice it to say that Article 370 of the Indian Constitution is indicative of how the framers of our constitution were willing to go out of their way to accommodate Muslim demands with little thought to how this provision may evolve in the future.

ARTICLE 370 AND THE DEMAND FOR GREATER AUTONOMY
The BJP impacted upon the political scene of this nation as a champion of Hindu political interests; because it owned up as its agenda, the demand of Hindu religious leaders for a temple in Ayodhya and also for the removal of the mosques from the temple premises in Kasi and Mathura. The other issues which the BJP took up and which distinguished it from the Congress and other national and regional parties was its call for implementing the Uniform Civil Code and for abrogating Article 370 of the Indian Constitution. The BJP was labelled a “right-wing, pro Hindutva” party and therefore “communal” and “anti-minority”. In the process, the calls for abrogating Article 370 and implementing the Uniform Civil Code were also simplistically dubbed as being anti-minority and communal.

Unfortunately for national interests, when the BJP, as the single largest party in the present coalition government came to power in Delhi, it fell into the trap of this name-calling and succumbed without a whimper to the pressure of its coalition partners and gave up its distinctive political agenda. It distanced itself from the Ayodhya temple issue, it no longer asked for the abrogation of Article 370 and maintained silence on the issue of the uniform civil code mandated by the Indian Constitution. What concerns us here is the consequence of the BJP’s ill-considered silence on Article 370.

ARTICLE 370 – WHAT LIES BENEATH
The BJP’s silence on these issues has been disappointing because it was the BJP which first brought to the fore in political public discourse the issue of Article 370, its deleterious effects in the affairs of J&K and therefore the need to abrogate it. The problem confronting the Indian nation in J&K is far too complex and involves too many issues to allow anyone the luxury of thinking that abrogating Article 370 will somehow resolve the problem. It was nevertheless a very important political issue because a public discussion of Article 370 and its consequences for J&K and for the Indian nation would have removed the cobweb from the issues put away from sight in the country’s public life. In the course of debating the need to continue with or abrogate Article 370, the nation’s intellectual and political class and the Indian Parliament would have been compelled to acknowledge the perfunctory manner in which this article was placed before the Constituent Assembly and adopted as a part of our Constitution.

Pandit Nehru, the prime mover behind Article 370, did not himself table it before the Constituent Assembly; he was out of the country on that momentous day and so entrusted the task to Shri Gopalaswamy Ayyangar. Gopalaswamy Ayyangar, before tabling it in the Constituent Assembly, had it whetted by the Congress Working Committee where it faced stiff opposition from almost all its members. In despair, Gopalaswamy Ayyangar appeals to Sardar Patel to get the Congress Working Committee to agree to the proviso and allow it to be passed in the Constituent Assembly without opposition. Sardar Patel points out to the angry congressmen that it would not be fair to make Gopalaswamy Ayyanger the butt of their justified anger because it was Nehru who had assured Sheikh Abdullah that such a proviso would be included in the Indian Constitution and that since Nehru was out of the country then, they should allow Article 370 to be tabled in the Constituent Assembly. He also assures them that Article 370 was only a temporary provision in the Indian Constitution and that it would erode over time and J&K would indeed be integrated wholly with the Indian republic in the same way as all the other princely states. Article 370 is thus tabled in the Constituent Assembly by Gopalaswamy Ayyanagr on the 17th October, 1949 and adopted on the same day with barely a demur, a protest or reservation.

Discussing Article 370 would also have compelled our politicians and intellectuals to discuss the need for J&K to have its own constitution despite the fact that the Indian Constitution which was in the process of being drafted would have ensured equality in terms of all constitutionally guaranteed rights for all peoples and all regions. The nation would also have been compelled to look at the state constitution of J&K with its highly controversial section on fundamental rights, the Delhi Agreement of 1952, the Jammu and Kashmir Resettlement Act and its implications for the demography of the state and national security implications, the severely discriminatory attitude of successive state governments of J&K with regard to Jammu and Laddakh, the all-pervasive corruption in every area of administration and governance, and the political arrangements within the state. All these issues are either directly or indirectly connected to Article 370 and the J&K state constitution.

By giving up its stated political agenda with regard to Article 370, (the BJP may say that it has merely pushed it to the back burner until such time when it can govern the country with an absolute majority, an argument that does not hold water), the BJP has served only to reinforce the idea that Article 370 is a Muslim issue and calls for its abrogation are anti-minority and communal while demands to retain it are in the highest traditions of a pluralist, secular polity. This argument doesn’t hold water either.

ARTICLE 370 – THE TEXT
PART XXI OF THE INDIAN CONSTITUTION
Temporary, transitional and special provisions.

370. Temporary provisions with respect to the State of Jammu and Kashmir.

(1) Notwithstanding anything in this Constitution,

(a) The provisions of article 238 shall not apply in relation to the state of Jammu and Kashmir

(b) The power of Parliament to make laws for the said state shall be limited to-

(i) 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; and

(ii) Such other matters in the said Lists as, with the concurrence of the government of the state, the President may by order specify.

Explanation: For the purposes of this article, the government of the state means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948;

(c) The provisions of article 1 and of this article shall apply in relation to that State;

(d) Such of the other provisions of this Constitution shall apply in relation to that state subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the state referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the government of the state:

Provided further that no such order, which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) 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.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the state referred to in clause (2) shall be necessary before the President issues such a notification.

WHAT DOES ARTICLE 370 MEAN
Simply put, Article 370 lays down the ground rules for the jurisdiction of the Indian Constitution and the Indian parliament in the state of J&K. All princely states, when they signed the Instrument of Accession, surrendered Defense, Foreign Affairs and Communications to the sovereignty of the central government. As mentioned earlier in this paper, all princely states except the state of J&K chose to integrate themselves with the Indian Union by consenting to adopt the Indian Constitution.

But even as early as in 1948, Nehru had conceded to Sheikh Abdullah his demand for a separate state constitution for J&K. The country is not clear till today, why Nehru conceded this dangerous demand although Gopalaswamy Ayyangar, on the 17th of October, 1949, when this proviso is tabled and adopted in the Constituent Assembly, makes some rather very vague and unsubstantiated remarks about the extraordinary situation prevailing in J&K. One would have thought that given these ‘extraordinary circumstances’, all the more reason why the integration of the state into the Union should have been effected unambiguously and without delay. Conceding to this demand made by Sheikh Abdullah must surely rank as one of the most unforgivable of Nehru’s serial follies with regard to his dealings with Sheikh Abdullah on J&K.

It was because the state of J&K was allowed to have its own constitution that a need was felt to create a mechanism which would link the national constitution with the state constitution. Article 370, according to Sardar patel, was supposed to be this integrating mechanism. And let us never forget the criminal negligence of our leaders who allowed Nehru to concede to this demand without

Caring to know the nature of the contours of this state constitution,

Without knowing or caring to intervene in the terms of reference of the state constituent assembly, and

Without having set the pre-condition that the Indian government would have its representatives as observers in the state constituent assembly proceedings to ensure that the state constitution was in line with the basic structure of the federal constitution. And not that alone, that the state constitution would clearly define not only the rights of the state under Article 370 but also the responsibilities of the state towards the Indian Union and by implication, towards the fundamentals of the Indian Constitution.

Without ensuring any of the above, the Indian Constituent Assembly, in 1949, long before the state constitution came into force, drafted the draconian provisions of Article 370. Article 370 states:

1. Parliament can make laws for the state of J&K even with regard to those subjects surrendered by the state to the Centre, only in consultation with the state government.

2. Parliament can make laws for the state on subjects not surrendered to the Centre only with the concurrence of the state government.

3. The Indian Constitution will not apply to the state of J&K in its entirety. The President of India, by the power granted to him under Article 370, will, through the mechanism of CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER specify which Articles of the Indian Constitution will apply to J&K as they are, which Articles will apply with modifications and alterations, and which will not apply to J&K altogether.

2.Article 370 also states that notwithstanding anything in the said Article, the President of India, may, by a public notification, abrogate Article 370 or may make any changes to it BUT, and this ‘but’ hog-ties the nation, the President can do so only if the recommendation for its abrogation or amendment comes from the state constituent assembly.

The nation’s legal and judicial luminaries have not told us, how, in the name of all that is sacred, can this be done at all when the state constituent assembly has been dissolved and no longer exists!

QUESTIONS THAT COME TO MIND
There has been so much heat and dust over Article 370 that neither the Constituent Assembly then, nor the Indian Parliament subsequently have ever debated it substantively. The country’s political and educated class have also shied away from discussing it for fear of being labeled anti-Muslim and communal. In Indian public life to be labeled communal is a fate worse than death. The following questions come to mind when one begins to analyse Article 370 and the need to continue with or abrogate it.

1.These are the problems in J&K today – runaway corruption, negligible industrial investment and even more negligible economic development, inequitable regional development, inequitable representation of regions and peoples both in the state legislature and in parliament, terrorism, and threats of secession.

2. The root causes for these problems are - Article 370, the J&K constitution, extremist and jehadi Islam.

3. Is Article 370 bad in itself or is it the symptom of the malaise of a sovereign state constitution? A privilege not allowed to other components in the federal structure and therefore not well defined in its relationship to the Federal Constitution?

4.When did the question of Article 370 first come up for consideration?

5.What are the implications of Article 370? Which parts of the Indian Constitution apply to J&K and which don’t?

6.What are the consequences of these acts not applying to J&K? Have they contributed to or aggravated any of the problems listed above?

7.Were not puppet/pliant state governments an inevitable consequence of Article 370 because we needed them, in the absence of a visionary leadership in the state, to use Article 370 to integrate the state progressively with the Union?

8.If we abrogate Article370, and allow the J&K constitution to remain, will we resolve the problems created by Article 370?

9.If Article 370 goes and the J&K constitution remains, what will be the instrument and framework of center-state relationship with regard to J&K? What will be the mechanism for integration?

10. Therefore, should not Article 370 and the J&K state constitution be removed together?

To understand the vicious circle into which Article 370 has cast the Indian government and to understand the enormity of the problems created by Article 370 and its parent, the J&K state constitution, it will be necessary to make a study of the laws that do not apply to J&K and also those sections of the Indian Constitution which do not apply to J&K at all or apply with severe restrictions. It may shock most readers to know, indeed I was shocked when I realised that the phrases ‘secularism and integrity’ which are an integral part of the Preamble of our Constitution, do not apply to the state of J&K. This in effect means that the state of J&K has no responsibility whatsoever to uphold and protect the integrity of the Indian nation and also that the state has no responsibility to uphold secularism, which is widely believed to be the basic structure of our Constitution and our polity.

What is even more shocking is that we still do not know if the umpteen amendments made to the Constitution with regard to J&K are a part of the Constitution itself. The Constitution (Application to J&K) Order issued by the President of India was first issued in 1950. Subsequently as a consequence of the infamous Delhi Agreement of 1952, when more and more changes were made to the Constitution with regard to J&K, the President of India issued the benchmark Order titled Constitution (Application to J&K) Order, 1954. Subsequently more and more Orders were issued which called for Constitutional amendments. But NONE OF THESE Orders were ever sent to parliament for legitimacy. We thus have a perversion of the very fundamentals of a functioning democracy in that major Constitutional amendments were effected by the pen of the President without being authored or approved by parliament, which is ultimately the highest legislating authority in a democracy. It is certainly the highest legislating authority in India.

Worse to say, the Constitution (Application to J&K) Order, 1950 and the Constitution (Application to J&K) Order, 1954, (which is titled the ‘Restatement’) do not form a part of several publications of the Indian Constitution. Some publications print these major constitutional amendments as Appendix I and Appendix II of the Constitution. And the amendments which were effected to several important Articles in the Indian Constitution in their functioning in the state of J&K, are also not carried as a part of these Articles in the text of the Constitution!

The polity of this country and the politicians have failed the people with their continued, stubborn refusal to open their eyes to the havoc that the J&K constitution and Article 370 have caused to large sections of the people of J&K and to center-state relations.

THE ORIGINS OF ARTICLE 370
When the rulers of the Princely states signed the Instrument of Accession, they surrendered legislative, judicial and executive control of three subjects – Defense, Communication, External Affairs and Ancillaries. This in effect meant that the princely states would have the right to decide upon policies, implementation and administration with regard to other issues, through such arrangements as they deemed fit. One such arrangement would have been for the rulers to frame constitutions for their erstwhile kingdoms; state constitutions, which would have given their arrangements a modern, legal framework.

But Sardar Patel, in the course of integrating all these princely states into the Indian Union, persuaded the rulers to accept the Indian Constitution in toto and integrate completely into the Indian Union, assuring them that not only would there be no minimising of their royal stature and privileges but that they could and indeed they should send their representatives to the Constituent Assembly and participate actively in the drafting of the Indian Constitution. The rulers of the princely states were assured by Sardar Patel that the Constitution would provide for all their concerns and guarantee equal rights to all regions and all peoples. The Princely states acceding to India thus accepted the Indian Constitution totally. Except the state of Jammu and Kashmir. That was Nehru’s personal fiefdom and Patel was intentionally kept away from dealing with that state.

A brief glance at the history of J&K at the turn of the century leading up to Sheikh Abdullah hounding the Maharaja out of the state and negotiating individually with Nehru will throw a great deal of light on the imponderables that caused Article 370 to be included in the Indian Constitution. The root cause was Nehru’s intense hatred of Maharaja Hari Singh – we’ll see that next week.

THE HISTORY BEHIND ARTICLE 370
The RSS and its parivar organizations, except the BJP, is convinced that the only way to render justice to Jammu and Laddakh which have been victims of the Abdullah clan, is to trifurcate/quadrificate J&K into Jammu, Laddakh, the Kashmir valley and a homeland for the persecuted and displaced Kashmiri Pandits, carved out from the valley itself. Demands for such a division of J&K causes the Abdullahs, senior and junior to react hysterically. But what they conveniently choose to ignore is that the two-nation theory of which the J&K constitution, the separate flag, Article 370 are all symptoms, was already implemented in J&K when Nehru conceded every one of Sheikh Abdullah’s untenable demands which made the Muslim-majority state of J&K a special state in the Indian Union. And when the RSS calls for trifurcating the state and when the VHP calls for quadrificating the state , it is not to hand over the remains of the state to Pakistan. Hindu majority Jammu will be fully integrated with Indian Union without the provision of the separatist Article 370; Laddakh will be made into a Union Territory while the Kashmir valley alone can retain Article 370 and its illusory privileges. In what is left of the valley after the state is divided, the valley is free to retain Article 370, its separatist flag and its state constitution.

The Abdullahs and the secular section of the Indian intellectual class are thrown into a panic as demands for division of the state gathers momentum. They declare that such a division would deal a mortal blow to secularism. Implied is the proposition that it is a victory for secularism that the Muslim majority state of J&K chooses and continues to be a part of the Indian Union. If this is not subscribing to the two-nation theory, tell me what is. And as for secularism, who are they kidding? The J&K state has rejected, from behind the fig-leaf of Article 370, that part of the 42nd amendment to the Indian Constitution by which certain core changes were made to the Preamble which now includes the words ‘ socialist secular’ and ‘unity and integrity’. The state has washed its hands off any responsibility towards defending and upholding the ‘socialist secular’ and ‘integrity’ parts of the Preamble which concern the Indian Union. That this does not apply to the state of J&K has been stated in the Restatement of the Constitution (Application to J&K) order, 1954, which is Appendix II of some publications of the Indian Constitution. What does the secular brigade have to say about that considering they lose no opportunity to declare that secularism is the basic feature of our Constitution and the underlying principle of governance.

Beginning with the Preamble of the Constitution, Article 370 has defined the jurisdiction of the Indian Constitution in J&K. Let us quickly take a look at some of the more important laws that apply and those that do not apply to the state of J&K. This will help us to understand better the implications and the utter futility of granting any ‘greater autonomy’ to the state or to even consider a return to the pre-1953 status.

THE JEKYLL AND HYDE OF ARTICLE 370
Article 370 has two personalities, so to say. It is a double-edged tool. It is a legal paradox which both integrates and divides the state from the rest of India. Like Sardar Patel said, it is a mechanism by which the President of India can issue special Orders which extend several Indian constitutional provisions that prevail in the rest of the country, to the state of J&K too. Under Article 370, the President, through the Constitution (Application to J&K) Orders of 1950, 1954 and several times thereafter up until 1994 has so far brought the state of J&K under the purview of 205 national Acts and laws. These include several important laws concerning Labour, laws concerning Customs, excise and other Taxes, The Negotiable Instruments Act, The Census Act, The Reserve Bank of India Act, The Imports and Exports (control) Act, The Banking Companies Act, The Finance Commission (Miscellaneous Provisions) Act, The Representation of People Act, The Companies Act, and Narcotic Drugs and Psychotropic Substance Act being some of the more important acts which has integrated the state of J&K with mainstream national laws. This is the Dr. Jekyll face of Article 370.

But, as I said, this integration is only one side of the tool, pardon the mixed metaphors. The other side is a dangerous weapon. It is this side which has caused the maximum damage not only to the state but to the national fibre. While on the one hand Article 370 has enabled the extension of several laws to prevail in J&K, it has also kept the Indian Constitution from being implemented in toto. The Mr. Hyde face of Article 370 states that Parliament may make laws for that state only with the consultation or concurrence of the state government. There are several parts of the Indian Constitution which do not apply to the state at all or apply with modifications. A very major section of the chapter on the Fundamental Rights of a citizen, enshrined in our national Constitution, does not apply to the state of J&K. I will go into this shortly. But two very important provisions of our Constitution which deserve attention in this context, and which either do not apply to J&K or apply with modification, are Articles 352 and 360 relating to declaring a state of Emergency in the country as a whole or in any part of the territory of this country.

As per Article 352, if the president of India is convinced that there is an imminent danger to national security either because of external aggression, possibility of war or because of armed rebellion from within the country, he may, upon receiving a written communication from the Union Cabinet, proclaim a state of emergency in the whole country or in any part of the country which is so threatened. But Article 370 has enabled the modification of this Article with respect to J&K in that while the President may declare emergency in the whole country in the event of a war or external aggression, he may not declare emergency in J&K without the consent of the state government in cases of internal armed rebellion. This means that even when terrorism brings the state to a point of total anarchy or breakdown of law and order, the President cannot declare a state of emergency in J&K without the permission or request of the state government.

As for Article 360 by which the President may declare a financial emergency in the whole or part of this country, it does not apply to the state of J&K at all. Given the runaway corruption in J&K afflicting all areas of governance and administration, and given the lack of political will to deal with it, a state of financial emergency can never be declared by the President even when the state teeters on the brink of a complete economic or financial breakdown. The CBI has no jurisdiction in J&K and neither do the CVC nor the Indian Penal Code. Not that alone; The Prevention of Corruption Act, 1988 also does not apply to J&K.

If this were not enough, what has escaped media and academic scrutiny is the delimitation of Assembly and Parliamentary constituencies in Jammu and Kashmir. Though Kashmiris constitute roughly only 22 per cent of the State’s total population, the mechanism cleverly devised by Sheikh Abdullah’s National Conference Party in 1951 enables it to capture nearly half of the total Assembly and Lok Sabha seats. The national Conference, with the full complicity of Nehru and successive Congress governments has violated every norm set by the Delimitation Act (which had no jurisdiction in J&K then, courtesy Article 370), and carved out 46 Assembly segments in the small Valley as against 41 segments combined for the Jammu and Ladakh regions which are far bigger territorially and several times more populated than the Valley; and three of the six seats to the Lok Sabha have been cornered by the Valley Muslims alone. This discriminatory nature of representation in the Assembly and Parliament is totally contrary to the rules framed under the Indian Parliament’s Representation of People’s Act, 1951, and those under the relevant State Act of 1957.

This cornering of the major chunk of Assembly segments and Lok Sabha seats has ensured once and for all that the Muslims of the state have a decisive say in all affairs of the state. This not only violates all democratic norms but is also a violation of the principle of pluralism to which passionate lip service is paid by the secular brigade in the media and academia. Because the valley is a sunni Muslim majority region and even the remnants of Hindus in the valley after five centuries of violent and coercive Islam have today been hounded out of the valley altogether. And in Indian public life you are considered an exemplary secularist when you never look at the Muslims of the country critically, not even in J&K and not even when they choose the terrorist path to attain their objectives.

But by far the most offensive and the root cause of all major problems in J&K lies in the modification of Article 35 of the Indian Constitution through the mechanism of Article 370. Not that alone, to Article 35 is added 35 A which carries the cancerous cell that has sapped the state of J&K of its vitality and life-force. Changes made to Articles 35 and the inclusion of the new provision, Article 35 A, you may all be surprised to know, like other amendments effected through Article 370, are not a part of the text of the Constitution; and therefore any casual reader of the Constitution who does not care to read Appendix II of the Constitution of India, will never know that a very pernicious and undemocratic change has been made to article 35 or even that there is a 35 A and that together they constitute the root cause of the evil side of Article 370. And it is because of the changes made to Article 35 and because of Article 35 A of the Indian Constitution that Article 370 has to go and its roots, the J&K state constitution. This may be the right moment to raise the question whether these major changes and amendments made to the Indian Constitution through Article 370 and which are contained only as Appendix I and II, are even a part of the Indian Constitution. And as such, are these changes constitutional?

The modification made to Article 35, the inclusion of Article 35 A and the fact that Articles 12 to 15 of the Indian Constitution do not apply to the state of J&K must be taken together and read together to understand why the J&K constitution is a perversion of democracy. Democracy’s underlying principle is equality before law. By completely disregarding the fundamental democratic principle of equality, the National Conference, whose brainchild the state constitution is, continues to preside over a feudal political arrangement. The ultimate perversion lies in the fact that there is no judicial redress for the affected people of J&K whose fundamental rights have been violated and who have been denied the basic right to equality. Let us take Articles 35 and 35 A apart, piece by piece to see the perversion clearly.

As per Constitution (Application to J&K) Order of 1971, clause (3) of Article 32 will not apply to the state of J&K. Article 32 specifies the remedies available to every citizen for enforcement of rights conferred by the Constitution and contained in the chapter on Fundamental Rights. Clause (3) of Article 32 says that while any citizen whose fundamental rights have been violated or who has been denied his fundamental rights may approach the Supreme Court for redress and while the Supreme Court shall have the power ‘to issue directions or orders’ for the enforcement of these rights, Parliament too “ may by law empower any other court to exercise within its local limits all those powers conferred on the Supreme Court to enforce these rights. What does this mean? It means not just the Supreme Court alone but any other court in a state or union territory can be empowered by parliament to assume the very same powers as those of the Supreme Court to enforce the fundamental rights enshrined in the Constitution.

The chapter on Fundamental Rights in the Indian Constitution lists the constitutional rights to which every Indian citizen is entitled. These rights can be enforced through judicial intervention and parliament has the right to make laws for any part of the country or for the country as a whole to protect and enforce these rights. These rights are inviolable except in situation of a state of Emergency in the country. Article 35 declares that parliament has the right and state legislatures do not have the power to make laws for enforcing these rights, for prescribing punishment for acts declared to be offences under this part and so on. But using the provision of Article 370, the state of J&K has refused to allow Parliament to make laws for the state under clause (3) of Article 16 and clause (3) of Article 32, both of which, besides Articles 33 and 34 are matters mentioned in Article 35 a (i) as being areas for which Parliament has the right to make laws.

By refusing to accept the jurisdiction of clause (3) of Article 32, the state of J&K has violated the fundamental rights of a section of the citizens of India residing in J&K, and who do not belong to a category created by the National Conference called ‘permanent residents’. The National Conference may disclaim any responsibility for the creation of this category with the explanation that ‘permanent residents’ is the new name given to the category of residents of J&K previously known as ‘state subjects’ which was created in 1927 when the state was ruled by the Dogras. But this argument will not wash because while the Maharaja may have had very good reasons for creating this category (and I shall come to this shortly), there was no reason for continuing with this classification of the residents in J&K as ‘state subjects’ and non-state subjects’ in post-monarchy J&K, in independent India.

What are the implications of clause (3) of Article 32 not being applicable to J&K? It means that those citizens of India who are resident in J&K but who are not ‘permanent residents’ as defined by Section 6 of the J&K state constitution, cannot challenge the denial by the state government of the fundamental rights guaranteed to them by the Indian Constitution because the J&K state constitution has its own version of fundamental rights which is not guaranteed to all residents of J&K. Only the ‘permanent residents’ of J&K are so privileged. And those residents of J&K who are denied these fundamental rights, cannot approach either the Supreme Court or any local court within J&K for redress because a CO under Article 370 has made it impossible for any court to offer redress. The fundamental rights as per the J&K state constitution is discriminatory and there is nothing that any court can do for those who are denied these rights in the state.

And it is this defiance of the basic spirit of the Indian Constitution which has been sanctified and legitimised as Article 35 A about which nobody knows, certainly not the shouting secular brigade, and which is not a part of the official text of the Constitution. Article 35 A says :

Saving of laws with respect to permanent residents and their rights.- Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,-

(a) defining the classes of persons who are, or shall be permanent residents of the State of Jammu and Kashmir; or

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects-

(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,

shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.".

Look at the tone and content of Article 35 A. It says the state government has classified its residents as first class and second class citizens. Those that are categorised as ‘permanent residents’ are first class citizens with special privileges. We have enshrined them in our state constitution and notwithstanding anything contained in the Indian Constitution, no law existing in the state of J&K and no law which may be made in the future with regard to the matters contained in Article 35 A, can be rendered void by Parliament or the Supreme Court on the grounds that it violates or abridges the rights guaranteed by the national Constitution to all citizens. What Article 370 is doing is enabling the state constitution to thumb its nose at the Supreme Court and at Parliament, and above all at the Indian Constitution. It is in effect saying that the denial of the fundamental rights of the Indian Constitution to a section of Indian citizens in J&K is not justiciable and cannot be enforced. Sardar Patel saw only the Dr. Jekyll side of Article 370. He either did not see or remained silent about Mr.Hyde. Article 370 derives its evil nature from the state constitution. There is no point in demanding abrogation of Article 370 without demanding that the J&K state constitution be rendered null and void too. Article 370 is only the symptom. The malaise is the state constitution which is completely out of line and not in tune with the basic spirit or structure of the national constitution.

This is the reason why I remarked earlier in this monograph that it was criminal culpability on the part of our leaders then that they did not stipulate any conditions for the state constitution, had no say in the terms of reference of the state constituent assembly and did not insist on representatives to be observers of the proceedings in the state constituent assembly to ensure that the state constitution was in line with the basic structure of the national constitution. Article 370 thus is the root cause of some of the more acute problems in J&K. The root cause with the roots being Article 35 A leading in turn to the state constitution.

Article 35 A tells us by inference that persons categorised as non-permanent residents of J&K cannot buy immovable property in J&K, are not eligible for employment by the state government, cannot contest or vote in local body or Assembly elections, cannot avail of scholarships and other grants offered by the state government to its state subject residents and above all cannot seek redress in any court, local or national. This then is the reason why there is little or no economic or industrial development in the state. No businessman or industrialist from the rest of India will ever invest a rupee in a state which will not allow him to own property there. How can the state hope for any private enterprise to set up shop or industry in the state if its laws regarding purchase of immovable property is anachronistic, not to say downright senseless and self-defeating.

The state of J&K is wholly dependent therefore on Government of India funds not only to meet Plan expenditure but also non-Plan expenditure. Any investment in industry or economic development comes solely from the GOI. Whatever little indigenous trade or industry existed in the state by way of its orchards, carpets and tourism, have also been almost destroyed by terrorism and continuing self-pity and apathy. Considering that the state of J&K has neither the financial nor natural resources to exist independently of the rest of India, it is greater integration with India that is called for and not greater autonomy. And this can be effected, some thinkers believe, only by abrogating Article 370. But they have no answer to my question about what will be the mechanism by which you integrate the state constitution with the Indian constitution if you abrogate Article 370 but allow the J&K state constitution to remain? They think they can do away with Dr.Jekyll but have no idea how to deal with Mr. Hyde. They are unwilling to see that Mr.Hyde’s strength, like Samson’s hair, lies in the state constitution of J&K.

But let us for arguments sake, academically consider if it is possible to abrogate Article 370.

1. The first and most obvious course of action would be that which is contained in Article 370 itself. That the President of India, by a public notification can declare that the Article ceases to be operative. But here is the catch – the President can issue such a notification only upon the recommendation of the state constituent assembly. But the state constituent assembly has been dissolved and no longer exists. The question then is, can the President issue this notification unilaterally considering that it is not possible to procure the recommendation of a non-existent body? Or should we understand that because the state constituent assembly has been dissolved, the President can never ever issue such a notification? It is a crying shame that as a nation, we have still not worked through the nuances of Article 370.

2. The second option rests on the assumption that the rights and responsibilities of the state constituent assembly have been handed over to the state legislature. In which case, the state legislature can issue the recommendation to the President asking him to issue the notification which will render Article 370 inoperative. But considering that the National Conference has given the Muslim majority valley 46 assembly seats against the 41 allotted to Jammu and Laddakh together, no state legislature dominated by the Muslims of the valley will ever seek to abrogate Article 370 under whose dispensation they are the most privileged category of the residents of J&K.

3. The third option would be to take recourse to Article 368 of the Indian Constitution which empowers Parliament to amend the Constitution and also lays down the procedure to be adopted. One would think that Article 368 empowers Parliament to adopt the procedure laid down in Article 368 and amend the Constitution by abrogating Article 370. But Article 370 itself has enabled through the Constitution (Application to J&K) Order, an amendment of the Constitution in such a way that Article 368 applies to J&K only in a modified manner. Clause (2) of Article 368 says that after the Bill for amending the Constitution is tabled in either house of the Parliament and after it has been passed by a two-thirds majority in both houses of Parliament, the President may give his assent to the Bill seeking amendment to the constitution. But, and here is the catch again, the President’s Order on the applicability of the Indian Constitution to J&K says that as far as J&K is concerned, the President may issue such an assent only as per clause (1) of Article 370 itself which means that the President can issue amendments to the Indian Constitution through his Constitution (Application to J&K) Order, only in consultation with or with the concurrence of the state government. Back to square one. Even Article 368 takes tortuous twists and turns and comes back to Article 370 again.

4. But the cutest trick lies in the amendment effected to Article 249. Article 249 declares that Parliament is empowered to legislate “in the national interest” even on matters enumerated in the state list. Article 370 has made this Article applicable to J&K with the modification that instead of ‘state list’ the clause should read that Parliament, in the national interest may legislate on that matter “which is not enumerated in the Union List or in the Concurrent List”. Very clever, this, really very clever. I mean, who will read the fine print of Appendix II to understand the ‘puppy chasing its tail’ futility of trying to get rid of Article 370 through the constitutional route. “Any matter not enumerated in the Union List or Concurrent List” indeed! As far as these two lists go, the final position has been stated and adopted by the Restatement of the Constitution (Application to J&K) Orders up until 1994. The only list that remains is the State list and the state list does not apply to J&K at all because unlike the other states in the Indian Union, the residuary powers with regard to J&K, lie not with the Center but with the state, rendering the state list meaningless. So how can Parliament legislate with regard to any matter in the national interest as far as J&K goes, if it should not find place in the Union List or the Concurrent list? What other list is there pray?

As I said, trying to get rid of Article 370 taking the constitutional path is futile and unproductive. We have created and fattened the grossest aberration whereby the miniscule part is larger than the whole. Article 370 is larger than the Constitution because there seems to be nothing in the Indian Constitution into which Article 370 can be subsumed or by which it can be made to go away. We also have the grossest aberration in that the interests of one state outweighs collective national interest. Our legal and constitutional experts have not even begun to apply their minds on how to get rid of Article 370. Ignorance is indeed bliss.