The Kashmir factor
THE issue of Jammu and Kashmir has been part of the national and international discourse for so long, and has known so many twists and turns that it sometimes gets difficult to separate the facts of the issue from the fiction created around it. In the last sixty seven years it has been the cause of three wars between India and Pakistan and witnessed internal strife and insurgency which has taken the lives of tens of thousands of people.
Though India has managed to contain and defeat this insurgency, the state continues to be volatile for two major reasons: First, Pakistan’s claim on the state, though it is now projected as Islamabad’s desire to ensure the just rights of the Kashmiris. Second, the belief of a core of people, mainly in the Kashmir Valley, that the Union government has not lived up to its commitments on providing autonomy to the state, as well as those who simply do not want to live within the Indian Union.
Complicating the issues are a set of UN Security Council resolutions which call for a plebiscite to determine the state’s future. For a variety of reasons, the plebiscite could not be held in the immediate aftermath of the ceasefire between Indian and Pakistani forces at the end of 1948.
By virtue of the as yet unimplemented resolutions of the UN Security Council many countries in the world accept that J&K is disputed territory, as a matter that needs final resolution. Over the years, the world community has also accepted the corollary – that there is nothing the international community, including the United Nations, has been able to do to resolve the problem. Only India and Pakistan can do so through direct negotiations.
Both India and Pakistan have agreed that this is the best option ever since the Simla Agreement of 1972 which said that: ‘The two countries (India and Pakistan) are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them.’ It is true, though, that Pakistan has grossly violated a commitment also made in the agreement that: ‘The line of control resulting from the ceasefire of December 17, 1971, shall be respected by both sides without prejudice to the recognized position of either side. Neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the threat or the use of force in violation of this line.’
Yet, as of now, neither India nor Pakistan has resiled from the agreement. Also, it needs to be noted that notwithstanding the UN resolutions and the Pakistani claims, India has not quite accepted the proposition that the status of Kashmir is disputed.
The 740 kilometre Line of Control that marks the border between India and Pakistan in the state constitutes an important aspect of our relationship with Pakistan. Though not officially articulated, the Indian solution to the problem has been a partition of the state along the existing LoC. Pakistan’s stand varies – there was a time when it said that J&K ought to be part of Pakistan; then, it began to say that all it wanted was the right of self-determination for the people of the state. But its actions in the parts of the state it occupies indicates that the goal remains the assimilation of the state into the Islamic Republic of Pakistan.
Islamabad now knows that there is nothing it can do to wrest the state from Indian hands by force. It has tried war twice, and continues to fight a covert war for the past quarter century using jihadi proxies and backing Kashmiri separatists. But getting Pakistan to end the conflict has been a difficult task, because Kashmir means many things to Pakistan. At one level, it is a cause that unites everyone in that factious country – the jihadis, the army and the civilian elite. At another, it provides it a means to maintain a hostile posture towards India, something necessary for its current sense of national identity.
During the negotiations for the Simla Agreement, Pakistan President Z.A. Bhutto agreed that the ceasefire line would give way to a Line of Control, and that the line would eventually become something like an international border. But later, Bhutto went back on his commitment. However, there is no public acknowledgement or record of this commitment.
In 2004, the two countries again picked up the threads of the Simla discussion through a back channel. Prime Minister Manmohan Singh outlined the limits of the Indian position when he declared that ‘borders cannot be redrawn but we can work towards making them irrelevant.’ In the period 2004-2008, the two sides worked to do precisely that by, first, implementing a ceasefire along the LoC and second, by opening up trading points across it. The idea was to encourage cross-LoC trade and eventually human movement and provide for a measure of joint management in governance. In his Amritsar speech of March 2006, Singh said, ‘I also envisage a situation where the two parts of Jammu and Kashmir can, with active encouragement of the Governments of India and Pakistan, work out cooperative consultative mechanisms so as to maximize the gains of cooperation in solving problems of social and economic development of the region.’
In his memoir, In the Line of Fire, Musharraf outlined four elements towards a solution. First, the need to determine whether all the sub-regions needed to be involved in the resolution process – Azad Kashmir and Northern Areas held by Pakistan; Jammu, Kashmir Valley and Ladakh with India. Second, the demilitarization of the regions as well as ending militancy. Third, introducing self-government or self-rule in the regions, without permitting the entities to have any international character. Fourth, the setting up of joint management mechanisms with the participation of India, Pakistan and the Kashmiris to oversee self-governance on issues that relate to all the sub-regions.
The Indian perspective was that since the state’s river waters are already committed to Pakistan under the Indus Waters Treaty of 1960, involving Islamabad in watershed management would not be such an affront to Indian sovereignty. Likewise there could be areas like tourism and trade in which the two sides could work together. However, and contrary to claims on the Pakistan side, there were no commitments made on joint governance or political management. That is because a vast gulf separates the basic outlook of the Indian and Pakistani political systems.
The two sides did manage to open up the LoC to enable trade and persons to move back and forth. But beyond that the project came unstuck. The Musharraf regime, under whom the agreements were being negotiated, imploded. The successor government of Asif Ali Zardari lacked the necessary clout with the army to push on with the project.
It is important to understand the Indian strategic perspective on the issue. The key agreements announced through the 4 January 2004 joint statement between India and Pakistan, came on the sidelines of the summit of the South Asian Association for Regional Cooperation (SAARC).
It was this SAARC meeting where the now eight-member organization decided that they would like to create a South Asian Free Trade Area (SAFTA) by 2014. A common free trade area would logically also see the opening up of the region to the movement of people and a degree of coordination on governance issues relating to areas of common concern like river waters, watershed management, flood control and so on. In the long-term, greater economic integration would lead to political integration as well.
There are, of course, the important issues relating to the state and the Union. When India became independent, it sought and got the accession of most of the princely states with the promise of controlling only defence, foreign affairs, communications and currency. However, very quickly these states were reorganized and the commitments on autonomy abandoned, though in the case of J&K the problem has yet to be resolved. There is no doubt that the original intention was to have a flexible system which would, over time, lead to J&K being like any other state of the Union. However, domestic politics and the foreign component of the Kashmir issue have prevented this from happening.
Under Article 370 of the Indian Constitution, on all matters except defence, foreign affairs and communications, the Indian Parliament required the assent of the state legislature, which was not in existence at the time the Indian Constitution came into force. So, the commitments were specified by the Delhi Agreement of 1952 which was signed after hard bargaining between the Union and the state governments.
The agreement specified the unique relationship between the two as well as the exceptional powers to its legislature, as compared to other states. The power to declare an Emergency in the state was to be exercised by the President only at the request of, or in concurrence with, the legislature. While the head of the government would be a Wazir-e-Azam or Prime Minister, the head of the state would be a Sadr-e-Riyasat who would be nominated by the President on the recommendation of the state legislature.
Subsequently, many of these features were incorporated into the state’s constitution which came into force in November 1956. Jammu & Kashmir is the only state of the Union which has a Constitution of its own, as well as its own flag. This Constitution came into being under somewhat controversial circumstances when Sheikh Abdullah and his principal aides were imprisoned and the state was ruled by a splinter group of the National Conference headed by Bakshi Ghulam Mohammed. However, in the period 1953-1974, many areas of autonomy that the state had enjoyed were diluted. The Indira-Sheikh Accord of 1974 while upholding the continuance of the relationship between J&K and the Indian Union through the operation of Article 370, promised to examine the issue of the Article’s . But nothing came of it and that has been the legal situation since.
After the separatist militancy was contained, efforts have been made to re-examine the issue through the lens of ‘autonomy’. The basis of this has been the resolution passed by the state assembly in 2000, accepting a report of the State Autonomy Committee set up by the Farooq Abdullah government earlier. This resolution called for terming Article 370 as ‘special’ rather than ‘temporary’ as mentioned in the Constitution. It wanted the removal of various articles of the Indian Constitution that had been pushed through in the post-1953 period, viz., the restoration of the terms Sadr-e-Riyasat and Wazir-e-Azam, as well as the mode of appointment of the former, through the assent of the state assembly. Finally, it wanted to restore the supremacy of the State Election Commission and the High Court.
Subsequently, Prime Minister Manmohan Singh also set up a working group headed by former Supreme Court Justice S. Saghir Ahmed to examine the issue of autonomy. After much dilly-dallying, the group submitted its report in December 2009, but it was non-committal on autonomy and said that it was up to the people of the state to decide how long to continue with Article 370. As is well known, the Bharatiya Janata Party and its progenitor party, the Bharatiya Jana Sangh, have been firmly opposed to Article 370 and one of its first mass mobilizations led by Syama Prasad Mookerjee, the founder of the party, was around the demand to repeal the article.
Shortly after the new NDA government was inaugurated at the Centre, Minister of State in the PMO, Jitendra Singh, who is the MP from Udhampur, declared that the process of abrogating Article 370 had begun. This would probably be a dangerous misreading of the verdict of the 2014 general elections. In fact, Prime Minister Modi’s own position seems to be somewhat different. In December 2013, in a speech in Jammu, he did not talk of revocation, but said that there was need to debate and discuss the issue of Article 370. This is a reasonable position which fits in well with the idea that the article is a temporary provision in the Constitution. But beyond this, the Modi government has yet to spell out its view of the Kashmir problem and the persistent core of separatism that remains, especially in the valley. The BJP is trying to make a bid for power in the state and has openly talked of its Mission 44+, the goal of getting a majority of the seats in the 87 member state assembly. Success for the BJP would involve a sweep of the 37 seats in the Jammu region as well as a breakthrough in the valley. It would, of course, upend the political dynamics of the state which has shown a consistent pattern of returning one of two major parties with a strong base in the Muslim majority Kashmir Valley – the National Conference and the People’s Democratic Party – from where 46 legislators are elected.
In end November 2014, J&K is scheduled to have a state assembly poll. Unlike other states, the state assembly is elected once in six years and so the previous election was in 2008. In the 2014 general elections that saw a massive BJP victory, the party won the Jammu, Udhampur and Ladakh seats, with the PDP winning the three valley seats of Anantnag, Srinagar and Baramulla. The election also marked the end of the Congress-National Conference alliance which had fought the 2008 state assembly and the 2009 general elections together.
India has sacrificed considerable blood and treasure as a result of the Kashmir troubles. However, elections have played an important role in bringing back substantial normality to the state. Since the 2002 state assembly elections, the process has regained the credibility which had been lost when the 1987 elections were rigged in favour of the NC-Congress combine. This had resulted in Kashmiri youth, disillusioned with the election, going off to Pakistan and begin an armed militancy.
The election of 2002 had another fortuitous outcome. The 2002 assembly elections, generally acknowledged to be fair, helped build confidence in the electoral institutions and processes. It saw the rise of the People’s Democratic Party (PDP), another Kashmiri party besides the NC which accepted functioning under the Indian Constitution. Unlike the NC, which was a member of the BJP-led NDA till its loss in the 2002 assembly elections, the PDP has functioned on its own and raised issues with regard to human rights violations in the state and backed the politics of ‘healing touch’ advocated by former Prime Minister Atal Bihari Vajpayee.
During the 2002 state assembly elections, the turnout in the Kashmir Valley was around 30 per cent, whereas the overall turnout exceeded 60 per cent. Barring a high turnout in the 2008 state assembly election, this has been the average since then. Essentially, this shows that a significant proportion of the valley population remains disenchanted with the election process. Of course, there are other manifestations of this such as hartals and bandhs called by the Hurriyat. These are not insignificant and have the potential for becoming serious law and order problems, as was the case during the Amarnath land transfer agitation of 2008.
Jammu and Kashmir is a complex issue, and it needs to be recognized as such by people who sometimes tend to think in terms of simplistic solutions. In all this while elections in recent years have played a positive role, they cannot by themselves bring normality to a troubled state.
There is a need to address the issue of autonomy or self-rule raised by a significant portion of its population. The issue is not so much about the substantial points of the legislation, as the need to address a strongly held sentiment among the people of the Kashmir Valley. There was a time when Kashmir fancied itself as an independent ‘Switzerland of Asia’. But history has shown that even the might of the Indian Army has not been sufficient to protect it against a covetous neighbour. Further, proponents of autonomy may also like to consider whether an election commission and Supreme Court headquartered in Srinagar would better serve the interests of autonomy, than the ones in New Delhi.
The Round Table process begun by Prime Minister Manmohan Singh ran out of steam in 2009. There is a need to resume it again. The tendency of forcing central laws on the state must be curbed. Some of these issues are not just a concern for J&K but for other states in the Union as well. In India, the argument over the nature of federalism is by no means a closed one. Perhaps, this could also include a serious discussion on Article 370 and what it means to the state and to the Union government. By the same measure, of course, there is need to bridge the chasm between the Jammu and Kashmir regions of the state, a divide that came close to the brink during the Amarnath agitation.
Besides the issue of Kashmiri alienation and its regional tensions, there is Pakistan. Whether we like it or not, the problem of Jammu and Kashmir has an international dimension. Most of the world community believes that the status of the state is disputed and, we too have committed ourselves to resolving the issue through dialogue with Islamabad. At one level there can be little doubt that the Kashmir solution can only come through a larger India-Pakistan rapprochement and the way to achieve that is through economic integration of the two countries.
The Indian perspective on resolving the Kashmir issue, as revealed by the policies of Atal Bihari Vajpayee and Manmohan Singh, has so far rested on its being embedded in the larger process of economic integration and détente. India and Pakistan by themselves may find it difficult to make concessions the other side wants, but they could possibly do so in a multilateral framework of SAARC.
However today, the process is going nowhere. The initiatives of the 2004-2007 period have come to a grinding halt. A key element in these developments was the ceasefire along the LoC called by Musharraf in November 2003 and readily agreed to by Prime Minister Vajpayee. Today, as the ceasefire frays, so does the process that once held so much promise. On the internal front, there is little movement in talks with the separatists or on the issue of autonomy.
With a new government in New Delhi, one whose party has historically believed in a tough posture towards Pakistan and the abolition of Article 370, it appears unlikely that there will be movement on either front. If left to itself, the situation is not likely to improve. Most likely it will fester and occasionally erupt.
Navnita Chadha Behera, Demystifying Kashmir. Pearson Longman, New Delhi, 2007.
Manoj Joshi, Kashmir 1947-1965: A Story Retold. India Research Press, New Delhi, 2008.
Pervez Musharraf, In the Line of Fire. Simon and Schuster, London, 2006.
A.G. Noorani, A Constitutional History of Jammu and Kashmir. Oxford University Press, New Delhi, 2011.