First things first
Before everything, India and Pakistan must decide the nature of a joint mechanism, writes AG Noorani.india Updated: Jan 30, 2007 18:29 IST
The Jammu and Kashmir Chief Minister, Ghulam Nabi Azad, has made two statements that vividly reflect the clime.
On December 31, 2006, he said that while no one suggests joint India-Pakistan rule over the state, "joint management" is possible in the fields of trade, water, tourism and culture, and this could pave the way for a solution to the Kashmir issue.
On January 8, he went further. He urged that the latest proposals by President Pervez Musharraf should not be discarded without discussing them with a positive frame of mind.
"We are keen to see that the ongoing dialogue process succeeds and lasting peace and tranquility returns to the subcontinent in 2007.
But it would be a pity if we put aside any suggestions or proposals made on this subject without discussing it," he said, referring to Musharraf 's four-point proposal, set out on page 303 of his memoirs, In The Line of Fire.
On January 19, Mirwaiz Umar Farooq told the BBC that the next three months would be crucial.
There is a growing congruence between the ideas put forth by Prime Minister Manmohan Singh and those of President Musharraf, now codified in four clear points.
There is also a blurring of divide between the unionists and separatists. Rigging polls has become increasingly difficult.
The unionists have to woo the people, whose mood none can doubt, bar those in New Delhi, in government and in the media, who prefer a state of denial.
A former editor, Sunanda K Datta-Ray, reported from Srinagar on April 28, 2004, "No one in Kashmir's electoral fray would dream of denouncing the militants… but, of course, no one is as blatant as the National Conference in supporting the guerrillas."
Both the NC and the People's Democratic Party agree that there is a Kashmir dispute; Pakistan is a party to it; the militants must be brought on board; the Hizb chief Salahuddin's offer of ceasefire accepted; security forces and the army violate human rights; J&K's autonomy has been eroded; and New Delhi has been, and still is, unfair to Kashmiris. Both laud Musharraf's proposals.
History does not divide, but binds them together. On April 5, 2006, Mufti Muhammad Sayeed, the PDP's patron, said that the people of J&K had never had a self-government since 1947 and should be given the right.
Four days later, NC leader Farooq Abdullah said, "India has deceived the people of J&K every now and then during the last 58 years."
He cited Sheikh Abdullah's dismissal from office as PM in 1953, as did PDP leader Muzaffar Hussain Beig on April 27, 2003: "The Government of India has always been purchasing the leaders of the state. That can be done even today."
And he proceeded to mention the Sheikh's dismissal in 1953 as a forerunner of a sorry record.
He cited it again on August 27, 2004, and exclaimed, "What Kashmiri Raj are you talking about? Kashmiris have never ruled the state? New Delhi has never allowed genuine leadership to grow in the state."
On September 21, the NC's working committee, while praising Manmohan Singh, pleaded that the "initiatives taken by President Musharraf be matched with equal flexibility and good will.
India is bigger, mightier and a torchbearer of democratic principles.
Therefore, it has greater responsibility to foster peace and friendship." It made a constructive suggestion that "the cumbersome procedure of issuing permits for travelling across the LoC must be simplified". The buses run almost empty.
The PDP has made the same point. Yet, no two parties are more bitterly divided than the NC and the PDP.
Their debate on autonomy versus self-rule is as absurd as one on the sex of the angels. Four stark truths elude the unionists as well as the separatists.
The Kashmir issue is at the outskirts of a solution; the amnesty that will follow it will return Syed Salahuddin to state politics as a major player and alter the scene radically (he fought the rigged 1987 polls to the assembly); deep divisions rule out the kind of involvement in India-Pakistan talks that Kashmiris aspire; the congruence of ideas put forth by India and Pakistan render irrelevant those that do not fit into their basic framework.
Two of the four points of President Musharraf invite constructive analysis to which all the unionists and the separatists can, and should, contribute.
His proposal for "a joint management mechanism" has two objectives - "overseeing self-governance" and "dealing with residual subjects… that are beyond the scope of self-governance".
India-Pakistan oversight of self-governance will surely reduce its content. As units of a federal setup, each part of the state must be fully autonomous, with the Centre enjoying emergency power as a last resort with agreed checks.
Subversion of the accord will be an issue for an ad hoc tribunal to determine.
Fundamentally, we have to determine what a joint mechanism is needed for. The terms of reference must define its objects, functions and powers.
Obviously, it cannot wield executive powers; yet it must wield more clout than a purely consultative body.
This is the grey zone in which Kashmiri contribution can help. Once that is done, the composition and structure of the mechanism can be defined.
Musharraf's formulation that it would deal with "residual subjects" reverses the process.
India and Pakistan must first agree on the purpose and power of the joint mecha nism and the powers that they will exercise in their respective parts of J&K and then quantify the "residual subject" to be given to J&K.
On these two points - joint mechanism and quantum of self-governance - the people of J&K must have a voice. It cannot be expressed at a round table. That will make it the Tower of Babel.
The Northern Ireland model is apt. Britain and Ireland first settled the broad framework. On April 16, 1996, Britain promulgated 'Ground Rules for substantive All-Party Negotiations' to "determine which parties will participate in the negotiations" and ensure that "all parties with an electoral mandate" do so.
On April 29, the Northern Ireland (Entry to Negotiations, etc.) Act was enacted to elect a Forum for Peace and Reconciliation but with no "power to determine the conduct, course or outcome for the negotiations".
London and Dublin held the reins, but the delegate's consent was vital and ensured accord.
The best course is for India and Pakistan to settle the basic framework of joint mechanism and the residue left for self-governance; hold elections to the state legislatures in both parts and solicit their views; and finally hold an All Jammu & Kashmir Legislators' Convention.
In the light of their views, the accord can be finalised and implemented in accordance with their respective constitutional processes.
Two incongruities must be removed. The 42nd Constitution Amendment, 1976, enlarged the term of all state assemblies from five to six years.
J&K followed suit in 1977 with the 16th amendment to its Constitution. The 44th amendment restored the term to five years in the entire country but J&K retains the six-year term.
The other incongruity is the presence of renegade militants. India is justified in asking Pakistan to dismantle the apparatus of terrorism on its territory.
India should also disband the renegade militants whose services it has used for over a decade. They enjoy a licence to kill, maim and loot with impunity.
Ideally, all the parties should draw up a joint paper on joint mechanism and self-rule. The least they can do is to demand jointly that the rules for bus travel be made simpler and renegade militants sacked from service.