The separatist groups have temporarily buried their differences over whether J&K should become independent or join Pakistan; but the issue is sure to shatter their temporary truce. Bashir Manzar assesses the situation on the ground.
By Bashir Manzar
Kashmir is again in focus with hundreds and thousands marching on streets crying for Azadi (freedom). A dispute over 40 hectares of land near Amarnath Cave in Pahalgam put the state on the boil. Kashmiri Muslims resented the transfer of land to the Amarnath Shrine Board, forcing government to revoke the order and then Jammu Hindus jumped into the fray demanding restoration of the revoked order. And that was it.
While the Governor’s administration has initiated dialogue with Jammu’s Sangharsh Samiti and the ice may be broken, the agitation in Kashmir has shifted from disputed 40 hectares of Pahalgam land to the disputed status of Jammu & Kashmir.
“The issue is about the plebiscite; about the people of Jammu and Kashmir deciding their political future. The Pahalgam land is just a peripheral issue,” senior separatist leader Syed Ali Shah Geelani who heads his faction of Hurriyat Conference told CURRENT.
“We should be granted our right of self-determination guaranteed by the United Nations and promised by then Indian Prime Minister, Jawaharal Nehru, on the floor of Indian Parliament,” Geelani said.
“When I say right of self- determination, the right is to be exercised by all – Muslims, Pandits, Dogras (Hindus) and Buddhists,” he added.
Citing the example of lakhs of Kashmiris marching to Pampore on August 16, to United Nations Military Observers Group (UNMOG) in Srinagar on August 18 and to Eidgah, Srinagar, on August 22, Geelani said: “What else does India need? People in millions have raised their voice for freedom from India. Tell it to leave us.” Though almost all separatist groups are at present united under the banner of the Coordination Committee that spearheads the ongoing agitation, there are sharp divides. While Jammu Kashmir Liberation Front (JKLF) headed by Mohammed Yasin Malik and People’s Conference headed by Sajjad Lone want to see Jammu & Kashmir (as it stood before 1947 including parts under Pakistan control including Northern Areas) as an independent state, Syed Ali Shah Geelani wants the state to accede to Pakistan.
Contradictory slogans are, therefore, audible in ongoing rallies. However, at the moment, there is an unwritten agreement between the ideologically rival groups to stick to the demand of right of self-determination alone. “The present agitation is against India’s rule – a demand for our right to self-determination through a referendum,” chairman of another faction of the Hurriyat, Mirwaiz, told CURRENT.
Mirwaiz’s own party, Awami Action Committee has traditionally been a pro-Pakistan political outfit but of late he has not been talking about Pakistan. Instead, was the first to welcome then Pakistan president Pervez Musharraf’s four-point formula.
Mirwaiz, unlike Geelani, suggests a step by step approach:
· Let Srinagar-Muzaffarabad road and Poonch-Rawalakote roads be opened for trade and free movement of people to and fro;
· Let India repeal all the draconian laws including Armed Forces Special Powers Act that gives its troops license to kill and;
· Let all the political prisoners languishing in different jails be freed.
Mirwaiz, who had earlier held several rounds of talks with the Indian leadership, is not averse to dialogue for finding an acceptable solution to the issue.
“But the dialogue should be tripartite including all the three parties – India, Pakistan and Kashmir,” Mirwaiz told CURRENT.
Sajjad Lone feels that for ending the crisis cross-border trade links should be opened and India should announce a time-bound structured dialogue with Kashmiris to resolve the 60-year-old dispute.
Lone is the only Kashmiri leader to have come out with a comprehensive document, “Achievable Nationhood” that discusses various dynamics of the Kashmir problem. “There is a problem in Kashmir and Indians don’t want to see it,” Lone told CURRENT, adding, Kashmiris want to secede from India.
He alleges that India has not respected the institution of dialogue and eroded its credibility and “the results are here for all to see.”
“There has been excessive use of metaphysical language by India intended to deceive rather than deliver and that has brought it to this stage,” said Lone, adding, “Time has come to decipher the metaphysics and come out in plain language and start a structured and time-bound dialogue for resolving the issue.”
Lone claims that if a democratic option is offered, entire Jammu and Kashmir would opt out of India. Prof. Abdul Gani Bhat, senior leader of the Mirwaiz-led Hurriyat, sounds more philosophical.
“The gestures, chance remarks and the glimpses of Kashmiris need to be understood to reach out to their deep aspirations,” Bhat told CURRENT, adding, this understanding would help India address the problem.
“Kashmiris are in constant conflict. Indian hegemony is not acceptable to them but at the same time they are Indians because they live under Indian control.
“This constant conflict forces them to make adjustments and India thinks all is well. No, all is not well. Whenever they get a chance, they are out shouting for Azadi,” added Prof. Bhat.
Advocating opening of Srinagar-Muzaffarabad road for trade, Prof. Bhat also advocates a dialogue between India, Pakistan and Kashmir and a solution that is acceptable to all the three parties.
Article 370 under scrutiny
{Temporary provisions with respect of 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 purpose 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 this 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
i. 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:
ii. 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 the 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 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 the 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 notify: 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.
4. In exercise of the powers conferred by this article the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that, as from the 17th day of November, 1952, the said Article 370 shall be operative with the modification that for the explanation in cl.(1) thereof the following Explanation is substituted namely:
Explanation: For the purpose of this Article, the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of Council of Ministers of the State for the time being in office.
Implications of Article 370
This article specifies that except for Defence, Foreign Affairs and Communications, (matters specified in the Instrument of Accession) the Indian Parliament needed the State Government’s concurrence for applying all other laws. Thus the state’s residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
Similar protections for unique status exist in tribal areas of India including those in Himachal Pradesh, Arunachal Pradesh, and Nagaland however it is only for the state of Jammu and Kashmir that the accession of the state to India is still a matter of dispute between India and Pakistan still on the agenda of the U.N. Security Council and where the Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article .
The 1974 Indira-Sheikh accord mentions that “The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India”.