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Undisputed obstacle

india Updated: Oct 10, 2006 00:36 IST
AG Noorani
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It would be a grave mistake to ignore the rot within Kashmir while talks with Pakistan progress. The problem is two-fold —  popular alienation and militancy. As Mehbooba Mufti told the Hindustan Times Leadership Summit last year, militancy “cannot sustain itself unless and until the people of Kashmir don’t (sic) support it, which has been happening for the last 15 years”. No foreigner “can move around without the support of the local people … there is a political reason behind the gun”.

On April 4, 2006, Mirwaiz Umar Farooq candidly cited the reason: “It was due to militancy that India is talking on the Kashmir issue.” Sri Lanka’s Tamils have a similar sentiment, as an Indian correspondent reported: “They feel that the LTTE has to display its military prowess to get anything substantive from the government on the ethnic question.” The correspondent added, “Most believe that if the LTTE were to be defeated militarily, the Sinhala political establishment would close the chapter on the Tamil problem and bury their political aspirations forever.” Kashmiris, right across the political divide, feel much the same way.

Militancy cannot force India to concede secession; equally, as Mufti Mohammed Sayeed said on April 5, 2006, the movement cannot be crushed by force. Two former army chiefs, Generals VP Malik and S Padmanabhan, expressed the same view. Hence, the need for talks. Mufti Sayeed uttered a crie de coeur — the J&K people have never seen their own government since 1947 and they should be given the right to self-governance. The sentiment is universal. Two years earlier, on August 27, 2004, the former Deputy Chief Minister, Muzaffar Hussain Baig, had 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.” He recalled Sheikh Abdullah’s dismissal from office as Prime Minister of J&K in 1953.

Article 370 of the Constitution of India is the only provision that was the product of negotiations. It recorded a solemn compact after parleys between Prime Minister Jawaharlal Nehru, Sardar Patel and Gopalaswamy Ayyangar on the one hand and J&K Prime Minister  Sheikh Abdullah, Mirza MA Beg and Justice MA Shahmiri from May to October 1949. It was amended unilaterally, moments before its passage in the Constituent Assembly, while the Sheikh was away. The amendment facilitated his ouster. Nehru told the Lok Sabha on November 27, 1963, that Article 370 “has been eroded. We feel that this process of gradual erosion of Article 370 is going on. Some fresh steps are being taken and in the next month or two they will be completed”.

Four decades later, Article 370 is a total wreck. Designed to guarantee J&K’s special status and its autonomy, it was perverted unconstitutionally to subvert both. It is the only state that can be subjected to constitutional amendment by a mere executive order. That is its ‘special status’. President Rajendra Prasad, a distinguished lawyer, registered his protest to Nehru in a lengthy Note dated September 6, 1952, on the Delhi Agreement. Nehru overruled him.

Nehru’s use of the metaphor ‘erode’ is deceptive. Article 370 is not something that time and the elements can ‘erode’. It is a constitutional provision that can be subjected to abuse or amendments. His remark was a tacit admission that the Union-state compact of 1949 had been, and would continue to be, violated. The Indira Gandhi-Sheikh Abdullah accord of 1975 was a feeble effort to salvage the wreck to a small extent. It was a political accord and died a political death in 1977, when she withdrew support to the government he had formed under the accord.

But Article 370 can yet be used constitutionally to record a final ‘Grand Settlement’ with J&K, which revives it, makes it permanent and makes its guarantees of 1949 impregnable. That requires an accord with all in the state — Unionists and separatists, in all regions of J&K.

But, first, with Pakistan for two good reasons.

In 1972, Indira Gandhi spurned ZA Bhutto’s overtures after the Simla Accord. She was advised by an aide to settle with Sheikh Saheb first. Spurned, Bhutto reverted to old themes. India and Pakistan must agree on a draft framework for self-governance in both parts of the state, publish it for public debate and hold elections to the assembly in Srinagar and Muzaffarabad. MLAs on both sides can meet in the All-Jammu and Kashmir Convention to decide by consensus on the quantum of powers they need for self-governance. New Delhi and Islamabad must jointly revise their draft in the light of the people’s wishes, reflected in the polls and parleys, and apply it to both parts of the state.

This accord would be part of a wider Indo-Pak ‘final settlement’ of Kashmir, as envisaged in the Shimla Accord. No settlement is possible unless it is based on an agreement between the two countries and is acceptable to the people of the state as well. On Northern Ireland, Britain and Ireland first agreed on a framework and submitted it to elected leaders of Northern Ireland for the final settlement in 1998.

The second reason for an accord with Pakistan is that there is a vacuum in leadership in J&K. There is not a single leader or party that can represent the people. The Unionists, the National Conference and the PDP, are at each other’s throat. India and Pakistan took turns to split the Hurriyat. Even when it was united, Syed Ali Shah Geelani admitted with characteristic candour on June 16, 1998, “We are not in a position to stop the use or misuse of the gun. There is no rapport between the APHC and the gun men.” Politicians cannot declare a cease-fire; only the militants can.

Meanwhile, alienation and militancy fuel each other for reasons not hard to understand. Two former soldiers have recorded this. Ajai Shukla writes, “Living in the cold shadow of a stifling militancy presence, Kashmiris can cross the LoC of Muzaffarabad, but nipping down to the market remains a daily ordeal.”

Amit Mukherjee writes that while serving in J&K, he realised “I was not part of the solution. I was the problem; or at least part of the problem … During the first year of my counter-insurgency duties, I believe I created more insurgents than I, for want of a better word, eliminated”.

The army usurps lands without consulting the state government, a high source in the government revealed. That includes orchards, tourist spots and the guest house on the Kashmir University campus. “New Delhi was converting the state into an army cantonment,” Farooq Abdullah said on April 9. Are you surprised at the protest at the death sentence on Afzal Guru; massive and across the board?

Demilitarisation is a must. But it must of necessity be part of a political accord. That accord must include the militants, especially Syed Salahuddin, leader of the Hizbul Mujahideen and head of the 13-member United Jehad Council.

The distinguished French journalist and diplomat, Eric Rouleau, revealed in an interview on April 24, 1993, that when de Gaulle’s advisers suggested that he negotiate with Algerian ‘Yes men’ (Beni Oui, Oui), and not with the insurgent FLN, his reply was: “If you want to forge a lasting peace, you have to negotiate with those who are firing on your soldiers. You don’t negotiate with those with no blood on their hands, because they are irrelevant.”

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