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Old Tuesday, March 07, 2006
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Default Kashmir analysis

A.G.Noorani is known to be one of the best columnists of India. Here is the first part of his analysis on Kashmir, in Indian fortnightly "FRONTLINE". He is of the view that an amicable settlement of Kashmir issue is very much possible within the constitution of India. You can also access it or second part of it on



A working paper on Kashmir


For the first time, the leaders of India and Pakistan seem close to finding a solution to the Kashmir problem.

Indian troops are deployed on the Actual Ground Position Line from the end of NJ 9842 to Indira Col. Pakistan claims the area from NJ 9842 to the Karakoram Pass. A line running straight from NJ 9842 to the northern border with China would be a fair compromise.

"Many of us think that it is rather disgraceful and does no credit to India that this matter should have dragged on... so long," Vallabhbhai Patel told the United Nations Mediator on Kashmir, Owen Dixon, on July 20, 1950.

IN 2006, opportunity knocks loudly at India's doors. A settlement of the Kashmir dispute is within reach without any detriment to the national interest and on terms acceptable to all the parties concerned - India, Pakistan and the people of Kashmir. Prime Minister Manmohan Singh has, therefore, wisely convened an all-party conference on Kashmir on February 25.

Five years earlier, the then Prime Minister, Atal Bihari Vajpayee, promised in the Kumarakom Musings "to seek a lasting solution to the Kashmir problem". In this quest "both in its external and internal dimensions, we shall not traverse solely on the beaten track of the past" (The Hindustan Times, January 2, 2001). He did not indicate the new track. One hopes he will publicise it now in a constructive contribution to the discussion. He put paid to the falsehood that Kashmir is a domestic matter and a closed chapter. Paragraph 6 of the Shimla Pact (1972) explicitly binds the two countries to seek "a final settlement of Jammu and Kashmir".

In retrospect, Prime Minister Manmohan Singh's interview to Jonathan Power, published the day he was to take oath, has proved to be of seminal importance. His views were based on the national consensus on Kashmir, and defined the limits beyond which India cannot go. His emphasis was on creativity; on opportunity, not on obstacles.

The Prime Minister's remarks deserve quotation in extenso: "Then we have to find a way to stop talking of war with Pakistan. This is stopping us from realising our potential. Two nuclear armed powers living in such close proximity is a big problem. We have an obligation to ourselves to solve the problem" (emphasis added throughout). He was only too right. A few months earlier, on December 13, 2003, former U.S. Secretary of State Madeleine Albright said in New Delhi that India should enter the U.N. Security Council as a permanent member but agree to a plebiscite in Kashmir (The Hindu, December 14, 2003). Her recipe is outdated; the stipulation - a Kashmir accord - is tacitly shared by all.

Jonathan Power reported: "I pushed him on how he himself would accept compromise with Pakistan over Kashmir. `Short of secession, short of re-drawing boundaries, the Indian establishment can live with anything. Meanwhile, we need soft borders - then borders are not so important.'" He ruled out, both, plebiscite in, and independence for, Kashmir (The Statesman; May 20, 2004).

At a public meeting in New Delhi on April 13, 1956, Jawaharlal Nehru offered to Pakistan: "I am willing to accept that the question of the part of Kashmir which is under you should be settled by demarcating the border on the basis of the present cease-fire line. We have no desire to take it by fighting" (vide the writer's book, The Kashmir Question, 1964, page 72, for the background). He had in private repeatedly made this offer to Pakistan since 1948. Indira Gandhi was agreeable to this at Shimla in July 1972. Vis-a-vis the people of Kashmir, Manmohan Singh said: "Autonomy, we are prepared to consider."

President Pervez Musharraf is the first leader of Paksitan to: (a) opt for self-governance in preference to self-determination which implies change of borders; (b) keep the U.N. resolutions aside; (c) give up plebiscite as well as independence; (d) desist from demanding any territory for Pakistan; (e) reject the communal criteria; (f) not demand Kashmir's secession from India; and (g) encourage Kashmiris to talk to New Delhi.

But, just as no government of India can accept Kashmir's secession from the Union, no government of Pakistan can accept the Line of Control (LoC) without more as a "permanent border". The crucial question is whether New Delhi is prepared to make those concessions which would make it possible for Islamabad to accept Manmohan Singh's criteria. Musharraf has, in one statement after another, carefully moved Pakistan's position till it has come to meet those criteria. The question, to repeat, is what is India prepared to offer him in order to arrive at a settlement of the Kashmir problem?

There are four harsh truths which all sides will have to reckon with honestly, realistically if a compromise is to be arrived at. One concerns the people's alienation. Indira Gandhi wrote to her father from Srinagar on May 14, 1948, at the height of the war following the tribal raid: "They say that only Sheikh Saheb is confident of winning the plebiscite... ." (suspension marks, indicating deletions from the text, are in the original; Two Alone, Two Together edited by Sonia Gandhi; Penguin, 2004, pages 512-518). Five years later, even Sheikh Saheb abandoned hope, as President Rajendra Prasad reported to Nehru on July 14, 1953, after Vice-President S. Radhakrishnan's trip to Kashmir (Dr. Rajendra Prasad's Correspondence; Vol. 16, page 91). On May 1, 1956, Jayaprakash Narayan wrote to Nehru that "95 per cent of Kashmir Muslims do not wish to be or remain Indian citizens" (Selected Works of Jawaharlal Nehru; Second Series; Vol. 33, page 377). Nehru kept his eyes securely shut. The nation followed suit. The result is that Kashmir became not only a cancer in the body politic but a schism in the soul. Brazen untruths were told in defence of the indefensible and we knew that. So did the world.

What message do women wailing as funeral processions of slain militants pass by their homes convey? Sunanda K. Datta-Ray reported from Srinagar during the last Lok Sabha polls: "No one in Kashmir's electoral fray would dream of condemning the militants. Yet everyone is ready to exploit militancy to score points against the adversary." This was not prompted by fear of the militants but the mood of the people, for, as he reported, "no one is as blatant as the National Conference in supporting the guerrillas. Its rhetoric can compete with outright rebel organisations... " (The Telegraph; April 28, 2004). Last month, an Indian journalist wrote of a "people who hate us". Even if militancy is rooted out, the alienation with remain.

This truth is addressed in different ways by contesting sides. The nationalist denies it lest it spell secession or admits it to plead realpolitik and refuse that demand; the moralist admits it to concede just that. Both are wrong. There is another truth which time has established. India simply cannot allow Kashmir to secede from the Union. There is no morality without prudence. Do we plunge the State, its regions and communities, and the entire sub-continent into turmoil? India did resile from its pledge to hold a plebiscite, but other equities have arisen which it is equally immoral to deny.

If the third truth is an aggrieved Pakistan, the fourth is one least understood - the yearning for unity not only among Kashmiris in both parts of the State, but as deeply among the Jammuites.

We have to reckon with all the four truths to devise a solution which satisfies none completely, has its drawbacks, yet addresses their concerns in so substantial a measure as to make it acceptable. It is preposterous to tout pie-in-the-sky solutions (Andora, Confederation, and so on). A `perfect' solution to so complex, intractable a problem is impossible. Foreign models are instructive to distil principles for resolving problems; harmful for blind imitation. The actual conditions and the minds and emotions of the people must be borne in mind. A Kashmir accord will have to be endorsed by parliaments of both countries and by Kashmir's Assembly. It must be a final settlement; clear and practicable.

Musharraf's statements meet Manmohan Singh's criteria eminently. On December 25, 2003, he "left that [U.N. Resolutions] aside"; on October 25, 2004, he mentioned seven regions of the State, two on his side, and suggested we "identify" the region forever and "change its status". In New Delhi on April 18, 2005, he said "the LoC cannot be permanent. Borders must be made irrelevant and boundaries cannot be altered. Take the three together and now discuss the solution". On May 20: "Self-government must be allowed to the people of Kashmir" and "we do understand India's sensitivity over their secular credentials". So, "it cannot be, may be, on a religious basis". June 14: "Autonomous Kashmir is my earnest desire, but its complete independence will not be acceptable to both India and Pakistan."

If, both, plebiscite and independence are ruled out, surely, so is Kashmir's secession. What of the LoC ? On October 21, he suggested: "Let's make the LoC irrelevant. Let's open it out." He did not demand its abrogation, significantly. That is an action. Irrelevance is an opinion, an inference from action on the LoC. It survives; but becomes irrelevant in the daily lives of the people.

Musharraf's interview to Karan Thapar on January 8 yielded four helpful basics. He said: "Autonomy within the Indian Constitution is not acceptable... We are working for something between autonomy and independence and I think self-governance fits in well." But, at Canberra on June 14, Musharraf said "autonomous Kashmir is my earnest desire".

Secondly, the quantum of self-governance, the nub of the matter, will be defined by both states. "Let us work out self-governance and impose the rules" on both parts. Kashmiris will be involved. "The flexing out has to be done jointly." Thirdly, demilitarisation. On May 20, he had left open the sequence between it and end to terror. He now stipulated it as the first step; tactically, because India had not responded, he complained.

Lastly, he said: "Joint management would be a solution which we need to go into. There have to be subjects which are devolved, there have to be some subjects retained for the joint management." By India and Pakistan? That would be an unrealistic condominium. "Sovereignty gets reduced" by grant of self-governance, but, he added, "it is not undermined". Specifically, "there has to be a division [of Kashmir]. We are not talking about giving independence to Kashmir". Ergo, the LoC remains; now as an open international boundary. India and Pakistan will retain sovereignty over their respective parts of Kashmir, which are granted self-governance "with both countries guaranteeing it and overseeing it", each "having a stake in guaranteeing the situation in the other side of Kashmir".

The Prime Minister's criteria are thus fully met. Secession is not involved. Musharraf's ideas blend the Aalands' and South Tyrol's schemes - mutual guarantees of autonomy while confirming existing sovereignties - with the Northern Ireland accord of 1998, based on the status quo. Reunification of Ireland is formally abandoned. But a consultative North-South Ministerial Council on matters of common interest is also established.

Clearly, the problem is now ripe for solution. Involved are three factors - political, diplomatic and constitutional. Politically, the leadership must have the will to settle, and determination and constancy in a process which is certain to take time and invite obstruction and even sabotage from within and without the system. An educative effort must be launched to prepare public opinion. Elements in the Irish Republican Army repeatedly launched attacks in London and elsewhere during the peace process. Diplomatic creativity of a high order is required. Constitutionally, an accord on the lines of the Manmohan Singh-Musharraf convergence would be perfectly valid.

India and Pakistan held substantive talks on Kashmir three times before - in 1947-1950 on plebiscite; in 1955 and 1963 on partition. In May 14-18, 1955, Nehru held talks with Pakistan's Prime Minister Chaudhury Mohammed Ali and Defence Minister Iskandar Mirza. Maps were produced. Nehru preferred "a final settlement now" in one go. The visitors proposed partition on a communal basis. Nehru proposed variations in the cease-fire line. The Kishanganga river was "a suitable line"; besides, "the Poonch area" and "a bit of Mirpur" could be ceded to Pakistan (SWJN: Vol. 28, pages 246-263).

The Swaran Singh-Bhuto talks in 1962-63 centred on drawing an international boundary through Kashmir (vide Y.D. Gundevia's Outside the Archives, page 248; he was Foreign Secretary. Brigadier D.K. Palit, Director, Military Operations, gives details in his memoirs War in High Himalayas, page 393). Swaran Singh asked Palit "if I could consider offering a little more of Kashmir Valley because Pakistan's acceptance of partition would hinge on how much of the Valley we were willing to give up". Palit demurred, but Swaran Singh was all for it. He went so far as to offer "the Handwara area" in the northwest of the Valley to Pakistan. Bhutto asked for the entire State bar Kathua.

Like its predecessor, the cease-fire line of 1949, the LoC of 1972 is also an arbitrary result of war. Nehru was all for "readjustment" of the cease-fire line. He cabled to Krishna Menon on February 18, 1957: "When I first made a proposal for a settlement on basis of cease-fire line (in 1955), I made it clear that this would be subject to adjustments on geographical, strategic and like grounds" (SWJN; Vol. 36, page 400).

Indira Gandhi held the same view of the LoC. On July 11, 1972, she told Shahid Kamal Pasha of Morning News of Karachi: "If you look at the map, it does not appear rational and it has not proved so.... " She would not like to force its rationalisation on Pakistan. It would be done only through mutual understanding and consent (PTI; The Times of India, July 13, 1972).

Obviously, the LoC must be redrawn as part of a settlement. It is particularly cruel to Jammu where villages are divided. India finds it too close for comfort in Kargil, Pakistan feels the same in the Neelam Valley. In the process, the Siachen issue can also be resolved as it was, almost, in 1989. Iqbal Akhund, Benazir Bhutto's National Security Adviser and Foreign Affairs Adviser, writes that India claimed "a ruler straight line" from NJ 9842, where the LoC ends, to the Chinese border (Trial and Error, page 105). In the negotiations conducted by Rajiv Gandhi's aide Ronen Sen, now Ambassador to the United States, that was an Indian offer, presumably. Rajiv Gandhi revealed on April 27, 1991, that he had "almost signed a treaty on Siachen with Zia. The only reason it was not signed was that he died". Barbara Crossette met Rajiv Gandhi hours before his tragic assassination on May 21, 1991. She misunderstood him when she reported, quoting him, in the New York Times: "We were close to finishing an agreement on Kashmir. We had the maps, and everything ready to sign. And then he was killed." Was it that accord which Ronen Sen drew on?

Indian troops are deployed at present on the Actual Ground Position Line (AGPL) from the end of the LoC at NJ 9842 to Indira Col. Pakistan has been claiming the line from NJ 9842 to the Karakoram Pass. The 1989 line would be a fair compromise.

Well before Prof. P.N. Dhar wrote of the Indira Gandhi-Bhutto understanding at Shimla that the LoC would gradually be endowed with "the characteristics of an international border", a high Pakistani source had, in an interview to this writer, used identical words. Prof. Dhar put them in direct quotes, significantly, as if from a written record.

In 1972, the leaders' emphasis was on finality and clarity; their successors must blend three other features with emphasis on the line's "irrelevance" as a divide. Dr. B.R. Ambedkar was wont to distinguish between a bar, which divided, and a hyphen which united even as it divided. The LoC, once finalised, will tear the hearts of Jammuites as well as compatriots in the Valley unless they are assured that it is for everyone's good that the distrustful states know where their jurisdiction ends and all doubt is removed. But, it should be a uniquely porous frontier and that should be written into the agreement. The disgracefully restricted bus accord of February 16, 2005, must be scrapped. No bus is allowed to cross the LoC. The former "Rahdari" system (letter from a District Commissioner) should be restored and expanded. There should be free movement of persons, goods, mail and literature.

As a salve to the wound, it would be appropriate to record the irrelevance of the line. It would divide sovereignties, not people. The letter from the British Representative to the Afghan Foreign Minister, which formed part of the Treaty of November 22, 1921, can be adapted. Article 2 of the Treaty confirmed the Durand line as shown in an annexed map. The letter assured Afghanistan respect for its "interest" in the "conditions of the frontier tribes of the two governments" (Cmd. 1786, 1922). The India-Pakistan accord should record respect for the sentiments of the people of Jammu and Kashmir and their desire for free interaction as one people across a frontier which history imposed in order to resolve a tragic dispute. This principle should be extended to a solution to the dispute itself - acceptance of the interest of each country in the maintenance of self-governance by the other in its part of the State.

A lot of horse-trading will be inevitable on the drawing of the line. But it is best done as part of the dispute's resolution. If postponed, the LoC will become final in all its hideousness. The "international boundary through Kashmir", an expression used in the 1963 talks, will be defined, with a map attached in an annexure to the Agreement on the Final Settlement of Jammu and Kashmir, the Shimla phraseology.

It would (a) contain provisions defining self-governance for both parts of the State; (b) provide for consultative bodies between them and between New Delhi and Islamabad; and (c) establish machinery for conflict resolution. The consummation should be crowned with a Treaty of Friendship and Cooperation between India and Pakistan, signed simultaneously with the Kashmir Agreement.

This brings us to the nitty-gritty of the accord, in its internal and external dimensions. Once the substantive part is agreed, the procedure whereby it can be finalised must also be agreed. Last, but not least, the constitutional hurdles which must be crossed in the ratificatory stage must be understood clearly. A Kashmir settlement based on a blend of the Manmohan Singh-Musharraf criteria poses no problem which is not soluble and no hurdle which cannot be overcome. It is necessary to put paid to the false notion that Kashmir already enjoys autonomy and Article 370 protects it. One of its architects, Nehru, himself admitted in the Lok Sabha on November 27, 1963, that Art. 370 "has been eroded... 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". The Union Home Minister G.L. Nanda said on November 21, 1964, that Article 370 could serve as "a tunnel in the wall" (sic.) to enlarge the Union's powers over Kashmir.

This was utterly unconstitutional, as President Rajendra Prasad pointed out in a Note to Prime Minister Nehru on September 6, 1952. Article 370 empowers the President to extend matters which substantially fall within the Instrument of Accession by consultation with the State government; if they go beyond, its "concurrence" was required provided it was sought before Kashmir's Constituent Assembly was convened (November 5, 1951) and was later ratified by it. "Repeated recourse to the extraordinary powers" which authorise the executive to amend the Constitution was wrong. Art. 370 clearly envisaged that it should be "exercised only once" by a single Order when Kashmir's Constitution was finalised. Its Constituent Assembly did so and dispersed on November 17, 1956. The ratificatory body vanishes. All subsequent increase of Central power is void. The basic structure of the State's constitutional status was destroyed. A Governor appointed by the Centre replaced the Sadar-e-Riyasat elected by the State Assembly. The main Order of May 14, 1954, is questionable, though the Assembly approved, on February 15, 1954, extension of some provisions of the Constitution of India. But, as the Report of the State Autonomy Committee (1999) points out, the Order went beyond the Delhi Agreement of 1952 and was made hastily before the State's Constitution was enacted (pages 46-47). Thereafter, New Delhi used its stooge Chief Ministers, elected by rigged polls, to accord the concurrence since the ratificatory body had dispersed.

In 1959, the Supreme Court took a correct view on this; but changed its view in 1968 without referring to that ruling though Justice M. Hidayatullah was a member of both Benches. Art. 370 is the only provision which represented a compact negotiated between Nehru and Sheikh Abdullah between May and October 1949. Designed to protect autonomy, it was freely used to destroy it. The Supreme Court did not help. (AIR 1959 S.C. 749 and AIR 1970 SC 11; vide the writer's article, "Article 370: Law and Politics" in Frontline, September 29, 2000, reproduced in Constitutional Questions & Citizen's Rights; Oxford University Press, 2005; pages 371-384). The result? On November 19, 1971, Minister of State for Law Netiraj Singh Chaudhury, citing extensions of Union powers, assured the Lok Sabha that Art. 370 had been withering away and would vanish in course of time. That goal has been reached.

It is insulting to offer this husk of Art. 370 as a substitute for "self-governance" or "autonomy". There is no guarantee against future abuse. There is now a total collapse of the entire constitutional scheme in the relations between Kashmir and the Union and within Jammu and Kashmir itself. The Sadar-e-Riyasat, elected by the State Assembly, has been replaced by a Governor handpicked by New Delhi. A new constitutional set-up is called for. It is possible to devise it consistently with the Constitution of India.

This is the first part of a two-part article.
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thnx for sharing

brother would u b kind enough to let me know from where one can get the second part of article

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Here is the actual page of the first part of the story published in the current issue of the fortnighly ie Volume 23 - Issue 04 :: Feb. 25 - Mar. 10, 2006

Hope u find the second part of the story here in this forum.

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Post Part Second of The Working Paper on Kashmir

For the original page click on


A Working Paper on Kashmir
A prior India-Pakistan accord must provide a basis for a dialogue with Kashmiris.

Prime Minister Indira Gandhi with President Zulfikar Ali Bhutto of Pakistan at the India-Pakistan Summit in Shimla on July 1, 1972.
NO settlement of the Kashmir problem is possible unless the falsehoods about Article 370 are first laid to rest; such as that "self-rule is embedded in Art. 370", whereas it has enabled the Centre, for over 50 years, to amass for itself powers which fall within the State List of subjects for legislation merely by securing the consent of the State government and without any constitutional amendment. This is impossible in regard to the other States.
This is the special status, which the husk of Art. 370 confers on Kashmir today. In contrast, the Prime Minister spoke at his conference on February 25 of the "vast flexibilities provided by the Constitution" in order to give "real empowerment to the people". This is statesmanship.
Not surprisingly, in Kashmir "autonomy" has become synonymous with Art. 370 and a subject of partisan debate. Pervez Musharraf himself treated the two concepts synonymously. So do authorities on law. Thomas Musgrave holds: "Autonomy involves self-government for a specific part of the population of a state, within which it may be established on either a territorial or personal basis. Autonomy appears to be able to satisfy the aspiration of particular ethnic groups while preserving the territorial integrity and sovereignty of the state, and is, therefore, often suggested as a means of resolving the conflict between demands for ethnic self-determination and the principle of the territorial integrity of states. Some jurists have argued that it should be considered as an alternative form of self-determination at international law" (Thomas D. Musgrave; Self-Determination and National Minorities; OUP; pages 207-8).
A Finnish jurist, Professor Suksi Markku, wrote of "autonomy as self-government" because "autonomy culminates in the question of self-government". Its elements, as applied to "local self-government", can be adapted to larger entities - elected assemblies; meaningful powers for the unit concerned; safeguarded territorial boundaries and adequate financial resources derived from the power to tax. It must have a legal personality (as corporations do) and the independence of "elected decision-making bodies". The European Union's Charter for Regionalisation (1988) endorses these elements for regions. Real autonomy ensures self-governance. Which is why Melissa Magliani regards "the autonomous Province of South Tyrol" as a "model of self-governance".
However, Muzaffar Hussain Baig, Kashmir's Deputy Chief Minister, himself an able lawyer, published ads in dailies to distinguish between the two concepts. Autonomy is what the Delhi Accord of 1952, by which the National Conference still swears, allows. Self-rule is Art. 370 as adopted in 1949. Internal autonomy concerns "Delhi and Kashmir" while "self-rule appears to be aimed at finding a solution of the Kashmir problem without advocating the State's accession with Pakistan or diluting India's sovereignty as he [Musharraf] has himself stated that plebiscite and independence are not the options for the resolution of the Kashmir issue" (Greater Kashmir; February 2, 2006).
Mir Waiz Umar Farooq once advocated that "an autonomous region with the other side being a party to it, could address the issue" and satisfy all sides (The Statesman, October 10, 2002).
The issue really centres on the quantum of power granted to the State. Mountbatten propounded a good test in his address to the princes on July 25, 1947: "My scheme [defence, foreign affairs and communications to the Centre] leaves you with all the practical independence that you can possibly use and makes you free of all those subjects which you cannot possibly manage on your own" (White Paper on Indian States, page 164). It gave them an Azadi which was realistic in the circumstances.
Self-rule or autonomy is defined according to the situation, whether of a people or tribe or a people within a territory. Panchayats get autonomy appropriate for a village; municipalities, for towns ("local self-government"), and corporations for metros. Why not take the Seventh Schedule to the Constitution of India and the Fourth Schedule to Pakistan's Constitution and settle the powers which, by common consent, would devolve equally on the Valley and Jammu and on Pakistan-administered Kashmir? The Northern Areas and Ladakh may be excluded.
Two caveats are in order. Musharraf's recent remarks on joint management are unrealistic. India and Pakistan cannot even run a municipality jointly. He said in Islamabad on January 25 that India and Pakistan have to see what "we cannot give to them [Kashmiris] and that residual powers would be left with the joint management mechanism which should have people from Pakistan, India and the Kashmiris". Such a "mechanism" exists nowhere and is inherently unworkable.
At Davos the next day, he spoke of "self-governance short of independence and beyond autonomy with the three parties jointly managing the area on both sides of the LoC". He added: "It will address concerns of all three parties - it will not redraw borders, it will not make the LoC permanent and make the LoC irrelevant". He would do well to stick to this and forget joint management.
The other caveat concerns tripartite or triangular talks or "the round table". A recent variant is election of negotiators. Given the divides, the distrust, clash of egos and airing of unreal schemes by politicians in both parts of Kashmir, those pleas make no sense. Posturing for positions in a post-settlement set-up in Kashmir is already under way.
It is an unedifying spectacle. There is a vacuum in leadership. Not a single politician is in a position to deliver by himself or with his colleagues. Those who claim to be able to "influence" the militants or to "vouch" for them have been rebuffed repeatedly by Syed Salahuddin, head of the United Jehad Council, not least last June in Rawalpindi. Pitiable are "leaders" who depend for their credentials on recognition by New Delhi or Islamabad. India and Pakistan took turns in wrecking the Hurriyat with the full cooperation of one faction or the other. India must talk to those who wield or control the gun.
The Prime Minister's conference on February 25 was a well-intentioned brain-storming session. He is for a "consensual solution" to be reached by "a process to start once the round table ends". These are pointed hints. Experience has amply demonstrated the futility of a New Delhi-Srinagar accord without a prior India-Pakistan accord. It must provide a basis which each side, or both together, would flesh out in dialogue with Kashmiris on both sides.
People must have a say, though procedurally, an India-Pakistan accord on a draft model on self-governance or autonomy must come first followed by parleys with the people in both parts of the State. The intra-Kashmir talks will get nowhere without such a road map agreed between India and Pakistan. This was the procedure followed in Northern Ireland as well as in South Tyrol. A free debate must be allowed and politicians, publicists and academics on both sides should be permitted to meet to discuss the model. Some leaders are prepared to contest polls to establish representative credentials. But, unless certain rules are observed the forum will yield no result. The Irish Model is very relevant on this matter. The United Kingdom enacted the Northern Ireland (Entry to Negotiations etc.) Act, 1996, to authorise elections for "delegates from among whom participants in negotiations may be drawn". But, the Act defined "negotiations" as the ones referred to in a document entitled "Ground Rules for Substantive All-Party Negotiations" issued by the government earlier, on April 16, 1996. Any accord, it cautioned, "will need to give adequate expression to the totality of all three relationships" - within Ulster, between North and South Ireland and between the U.K. and Ireland. The two countries had already arrived at an agreement on the broad framework.
But they were "prepared to consider a new and more broadly based agreement if that can be achieved through direct discussion and negotiation between all the parties concerned"; the political parties in Ulster plus the two governments.
Strand One concerned the domestic set-up. London would parley with the parties in the Province, but Dublin "will be kept informed". In Strand Two, both governments would parley with the politicians in the Ulster. Strand Three would concern the U.K. and Ireland. "The negotiations will operate on the basis of consensus" or "sufficient consensus" if unanimity was elusive. But there had to be a clear majority between the two main political forces in the North. The outcome was submitted to referenda in both parts of Ireland and ratified by the Parliaments of both countries. Participants at the forum were free to air their views. It was at this Forum for Peace and Reconciliation that agreement was reached on April 10, 1998. Ireland amended its Constitution to abandon its claim to Northern Ireland.
The Act and the Ground Rules merit close study. The polls were on the basis of party lists. "The Forum shall be deliberative only" without "any power to determine the conduct, course or outcome for the negotiations". The governments held the reins. The polls, held on May 30, 1996, sent six well-organised parties to the Forum which comprised 20 delegates for the Province. Everyone knew what each party stood for. The situation in Jammu and Kashmir differs.
But an elected Forum can help, provided India and Pakistan follow the same course, evolving first a broad accord on the dispute which covers: (a) the quantum of powers that make for autonomy or self-governance for both parts of the State; (b) institutional links between them; (c) provision for conflict resolution; and (d) the Treaty. Kashmiris' views would matter on (a) and (b) while (c) and (d) are exclusively for the governments to settle. Popular participation is, however, indispensable. The problem affects the people.
In South Tyrol, Italy negotiated a detailed package, first with Austria. The SVP (South Tyrolese People's Party), representing 90 per cent of the people, accepted it by a narrow vote. Italy and Austria agreed on an "Operations Calendar" in 1969 on the steps they would take once the items in the package were implemented. The two states notified to the U.N., on June 11, 1992, closure of the dispute and signed, on January 27, 1993, in Vienna, a Framework Treaty on Cooperation across the borders between defined areas and on specified subjects (transport, energy supply, terrorism, and so on). South Tyrol acquired in 1972 a good Autonomy Law promulgated by the President of Italy.
The U.K. and Ireland signed on March 8, 1999, a Treaty setting up a North-South Ministerial Council on similar subjects as a consultative body. Srinagar and Muzaffarabad would need such a treaty, with Jammu's participation. Sweden and Finland submitted to the League of Nations' Council meeting, on June 27, 1921, an accord on settlement of the dispute over the Aaland Islands. Overwhelmingly Swedish, they would remain under Finland's sovereignty but with guaranteed autonomy, which was broadly defined. Finland had promulgated a liberal Autonomy Law in 1921. It was followed later by yet more liberal ones.
Both accords provided for conflict resolution. The Aaland accord authorised the League's Council "to watch over the application of the guarantees". On legal issues, "the Council was to consult" the World Court at The Hague. On July 31, 1992, Italy and Austria also agreed to refer to the International Court of Justice "disputes concerning the interpretation and the application of bilateral agreements in force between them".
Without a provision for conflict resolution, any India-Pakistan agreement on autonomy for each part of Kashmir will not work. Two extremes are best ruled out - the U.N. or the World Court as also the Supreme Courts of the two countries. Neither of them has helped, to put it mildly. Domestic courts can be moved, doubtless; but for subversion of the guaranteed autonomy each country should be entitled to move an ad hoc international tribunal provided its remit is precisely defined to prevent abuse, lest every Central law is challenged before it. The Supreme Court of each state will take care of that.
The tribunal comes in only if there is so grave and significant an encroachment on the State's powers by the Centre concerned, New Delhi or Islamabad, as to impair its autonomy. This should not raise hackles in New Delhi. As recently as on January 29, 1996, India and Nepal concluded a Treaty on the Mahakali and related matters which provide (Article 11) for a three-member arbitral tribunal comprising an arbitrator nominated by each side and a Chairman appointed by the Secretary-General of the Permanent Court of Arbitration at The Hague if the Joint Commission fails to give its "opinion". Kashmir is not a matter of lesser consequence. Since the Joint Commission has the widest remit, so has the Tribunal.
The settlement will satisfy all sides. Kashmir's membership of the Union would be put beyond challenge. Pakistan could declare that Kashmir's Azadi was substantively recognised and so was Pakistan's locus standi. Kashmiris in both parts would welcome the guaranteed autonomy they would now receive in domestic law as well as by bilateral accord. It poses no constitutional problem whether because of: (a) Parliament's resolutions; (b) constitutional limitations on ceding areas or (c) on constitutional amendments to implement it.
Parliament's Resolution of February 22, 1994, declares Jammu and Kashmir to be "an integral part of India" which is not contested and demands that Pakistan "vacate" the areas in administers. It differs from the Resolution of March 13, 1990, based on a joint statement by Prime Minister V.P. Singh, Rajiv Gandhi, A.B. Vajpayee, L.K. Advani, H.K. Surjeet and others, which referred to the people, not the land alone, and pledged "complete protection of their cultural and religious identity and full expression of their aspirations". The accord would do just that.
Both resolutions, however, are as irrelevant as the Lok Sabha's resolution of November 14, 1962, on China, which affirmed a resolve "to drive out the aggressor".
A resolution of Parliament is not law (Stockdale vs. Hansard, 1839, 9A & E1 and Bowles vs. Bank of England, 1913, 1 ch. 57). S.A. de Smith's Constitutional and Administrative Law holds that such a resolution "has no legal effect outside the walls of Parliament... unless given such an effect by Act of Parliament".
Parliament has enacted a law which permits cession of territory. The Unlawful Activities (Prevention) Act 37 of 1967 penalises advocacy of secession or questioning of India's "territorial integrity". But Section 13 (3) says: "Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the government of any other country or to any negotiations therefore carried on by any person authorised in this behalf by the Government of India". Cession of territory is an exercise of sovereign power. An Act of Parliament, assented to by the President, overrides resolutions.
In the Rann of Kutch case (Maganbhai vs. Union of India AIR 1969 S.C. 783), the Supreme Court ruled that no cession of territory was involved in a resolution of a boundary dispute. If it does, constitutional amendment would be required. But little is it realised that in respect of Kashmir that would not be necessary.
Remember that the Constitution of India was enacted when the dispute was before the U.N. Security Council and plebiscite was official policy. Article 370 was so drafted as to facilitate the State's secession, if India lost the plebiscite. Time has rendered it impossible. It has not affected the Constitution.
Moving for the adoption of Art. 370 in the Constituent Assembly, N. Gopalaswamy Ayyangar said: "We are still entangled with the U.N. in regard to J&K. We shall be free from it, but that will take place only when the Kashmir problem is satisfactorily settled" (Constituent Assembly Debates, October 17, 1949, Vol. X, page 424). Which is why Krishna Menon assured the Security Council on February 8, 1957: "If as a result of a plebiscite, if ever it did come, the people decided that they did not want to stay with India, then our duty at that time would be to adopt those constitutional procedures which would enable us to separate that territory" (Kashmir: Mr. Krishna Menon's Speeches in the Security Council; Publications Division, 1958, page 128).
The Ministry of External Affairs' Secretary-General G.S. Bajpai gave a similar assurance to the United Nations Commission for India and Pakistan (UNCIP) on November 21, 1949 ("cease to operate"; S/1430/Add 1; page 166), and so did Nehru to Parliament on June 26, 1952 ("we would change our Constitution about it"; SWJN; Vol. 18; page 418). What were the "constitutional procedures" which Krishna Menon had in mind? Simply, an Order by the President under Clause (3) to Art. 370 to declare "that this article shall cease to be operative". Article 1 of the Constitution, establishing the Union, applies to Jammu and Kashmir by virtue of Clause (1) (C): "The provisions of Article 1 and of this Article shall apply in relation to that State." The effect of an order under Clause (3) would be to sever Jammu and Kashmir's links with India. Union Home Minister S.B. Chavan warned Parliament as much on March 1, 1993, about this "only link". So did Prime Minister P.V. Narasimha Rao on June 2, 1996: "Abrogation of the Article is just not possible, unless you want to part with the State." It stands to reason that if India could, under the Constitution, allow the State entire to secede, it could with perfect legality cede to Pakistan the part it now administers and without a constitutional amendment, too. Ratification of the accord is another matter.
For, there is another provision which treats the future of Jammu and Kashmir as an open question and permits accord on it. Article 253 is an overriding provision for implementing by law not only a treaty or agreement but also "any decision made at any international Conference", even on a matter in the State List. But in regard to Jammu and Kashmir, it has this proviso: "Provided that after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of the State of Jammu and Kashmir shall be made by the Government of India without the consent of the Government of that State."
We are not making any such decision on Jammu and Kashmir's "disposition", only writing off legally what has not been ours in reality since January 1, 1949, if not earlier. All that an accord on the lines mentioned earlier requires is an Order under Art. 370 (3) to accomplish two objectives; first, vis-a-vis the State, to give effect to the new settlement on its autonomy in place of the one that was battered beyond recall. Clause (3) also says that Art. 370 can be made "operative only with such exceptions and modifications and from such date as he [the President] may specify". The Order should delete the word "temporary" in the marginal note and the President's power to make further Orders - a power he never legally had in any case - and thus entrench the new accord so that neither the Union nor the State can alter it unilaterally. This Order will restore Jammu and Kashmir's autonomy, its self-governance, and undo the wrongs so brazenly perpetrated since 1954. But, a proviso says that the recommendation of the State's Constituent Assembly "shall be necessary before the President issues such a notification".
This very requirement in Clause (2) did not deter the Union from eroding Art. 370 even after that Assembly had vanished on November 27, 1956. It did so through the State government, which readily accord "concurrence". A new Legislative Assembly elected under a New Settlement can make the recommendation. In strict law, this would not be valid. But sheer necessity faces us after years of gross constitutional abuse. In the Bihar Assembly dissolution case, Justice Arijit Pasayat cited rulings of the European Court of Justice on moulding reliefs in the light of necessities. (Rameshwar Prasad versus Union of India, 2006, 2 Supreme Court cases 1 at page 237). Judges reckon with realities.
We are embarking on a new constitutional regime building on the foundations of the old, wiping out the debris of the wrongs. Courts are not blind to political realities. Could the British Parliament have repealed the Indian Independence Act, 1947, the day after it was enacted or after August 15, 1947? A similar argument a propos the Statute of Westminster, 1930 (on the Dominions' independence), was ridiculed by the Privy Council in British Coal Corporation & Ors. vs. The King (1935) AC 500. "The Imperial Parliament could as a matter of abstract law repeal or disregard the Statute. But that is theory and has no relation to realities."
No court can ignore the facts of history or the cardinal fact that Jammu and Kashmir remains a member of the Union; that India and Pakistan notified withdrawal of the question from the UNSC, and concluded a Treaty to crown their achievement. India prepared a draft Treaty on the eve of the Tashkent Conference in January 1966; but "within an hour it was bodily returned to us", C.S. Jha, Foreign Secretary, records (From Bandung to Tashkent, page 231). In a White Paper on Jammu and Kashmir in 1977, Bhutto admitted that, quoting an Article. On August 13, 1982, Foreign Secretary M.K. Rasgotra presented a draft "Treaty of Peace, Friendship and Cooperation" when he went to Islamabad. It ran into 14 Articles (for the full text vide the writer's article "No-war pact parleys"; Frontline, January 14, 1994).
The alternatives are grim - continued strife; an estranged neighbour, snubbed for its overtures for peace; and an alienated populace to whom nothing is offered - not even relief from violations of human rights. Only the political will needs to be mustered. The Constitution facilitates accord.
On the eve of the signing of the Anglo-Irish Treaty on December 6, 1921, a wise statesman, Austen Chamberlain, counselled die-hard Unionists at a party conference on November 17, 1921: "Now and again in the affairs of men, there comes a moment when courage is safer than prudence, when some great act of faith touching the hearts of men and stirring their emotions achieves a miracle that no art of statesmanship can compass. Such a moment may be passing before our eyes now as we meet."
Such a moment has now arrived in the relations between India and Pakistan and a great act of faith is required of both.
ان تازہ خداؤں میں وطن سب سے بڑا ہے--------------جو پیرہن اس کا ہے وہ مذہب کا کفن ہے
یہ بت کہ تراشیدۂ تہذیبِ نوی ہے--------------------غارت گرِ کاشانۂ دینِ نبوی ہے
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