by Sardar Amjad Ali
A law is enacted by the legislature with definite objects and good reasons. This cardinal principle of legislature is universally followed. A government elected by the people is not supposed to hoodwink the nation about the objects which it wants to achieve and the reasons for which the law is slated.
Jammu Kashmir Reorganisation Act, 2019 was added to the statute books of the nation on August 5, 2019 with twin objectives and reasons. The statement of objects and reasons of the Act is as follows:
“The Ladakh Division of the State of Jammu and Kashmir has a large area but is sparsely populated with a very difficult terrain. There has been a long pending demand of the people of Ladakh to give it the status of a Union Territory to enable them to realise their aspiration. The Union of Territory of Ladakh will be without a legislature.
“Further, keeping in view the prevailing internal security situation, fuelled by cross- border terrorism in the existing State of Jammu and Kashmir, a separate Union Territory is being created. The Union Territory of Kashmir will be with a legislature.”
With the preface above, the historical development that took place around Kashmir vis-a-vis independent India since 1947 is, of course, very relevant to arrive at a finding as to whether the step the Government of India has taken on August 5, 2019 is right or wrong, just or unjust, biased or fair?
It is common knowledge that the perennial problem that engaged the attention of people inside and outside India, in Kashmir was/is not our handiwork. The sole credit for the imbroglio goes to our ‘Good Neighbour', namely, Pakistan seeking to grab the holy land of Kashmir by indulging in cross-border vandalism. The world knows that not a single iota of evidence has as yet been laid against India that Kashmir or any part of it has been invaded or annexed by application of military might or any other dicey method.
Historically, it was an act of voluntary accession with India at the initiative of Maharaja Hari Singh, a Dogra ruler with majority of Muslim subjects, enjoying the status of a Princely State under the British Paramountey. The accession formally took place with the execution of ‘Instrument of Accession' on October 26, 1947, a legal document duly recognised by its reference in Article 370 of the Constitution of India.
It is common knowledge that Maharaja Hari Singh had no compulsion, either from the British or from the Indian side, to join hands either with India or Pakistan, two dominions created by the India Independence Act, 1947. His compulsion lay elsewhere.
As Christopher Snedden, an Australian politico-strategic analyst, an author and academic, specialising in South Asia, in his treatise, ‘Kashmir, the unwritten History',
puts it:
“For Maharaja Hari Singh personally the accession issue posed a major dilemma; he was the Hindu ruler of a Muslim majority state.”
“Hari Singh's situation in J & K was relatively more peaceful—but personally more difficult. The fact that a majority of his subjects were Muslim, was offset by the fact that he was a Hindu from Jammu whose position, power and influence would likely to be curtailed if he joined Pakistan. He and many of his Sikh subjects, specially those located in Jammu province, felt not only that union with Muslim Pakistan was ‘repugnant' on religious grounds, but also they faced being politically and physically overwhelmed in any such union. The non- Muslims have resisted this union strongly and with force.”
The Maharaja had other conflicting factors before him to take a decision conclusively either to join with India or Pakistan: while some Kashmiri Muslims under the leadership of Sheikh Mohammad Abdullah were apparently ambivalent about joining Pakistan, conversely a few influential Kashmiri Pandits, including the Maharaja's Prime Minister, Ram Chandra Kak, was among those inclined to join Pakistan before he was sacked from his post.
For the vacillating Maharaja, a way to resolve the issue could have been to take into account the will of the Kashmiris as the supreme law as was suggested by both Lord Mountbaten, the Viceroy of India, and Mahatma Gandhi while the Maharaja met both in July and early August, 1947.
But for the Maharaja, succeeding a Dogra supremacy, it was neither affordable, nor was there any adequate mechanism to garner a popular view through the process of plebiscite.
Indecision apart, the invincible authority of the Dogra autocrat was waning with the British departure from the subcontinent. With the most dependable support-base from the British power in the process of receding, those oppressed by the never-too-popular Dogra ruler, particularly the Punchis, the Pashtoons and pro-Indian and pro-Pakistan elements of Jammu province, took to subversive activities against a Maharaja who had a saviour from neither Muslim Pakistan nor Secular India. Cross-border infiltration by the tribesmen of Pakistan, encouraged by Muslim Pakistan with a sinister design to occupy extensive part of Kashmir, posed a serious threat to retain Kashmir's existence as an autonomous princely state together with the princely dignity of the Maharaja of Jammu & Kashmir. He sought for amnesty from Independent India.
A lethal aggression with Pak civic incentive and covert military support of the Pak Army could not be successfully resisted by a few of his loyal subjects or with vulnerable, dis-gruntled rebels inside. Pakistan, being the perpetrator in that sinister game to depose the Maharaja and occupy Kashmir, could not have been a choice of the hapless Maharaja for an amnesty. The Maharaja requested for an amnesty from Secular India to combat an ugly aggression into Kashmir by Muslim Pakistan.
But India could not afford to station its garrison in an independent Princely State of Jammu & Kashmir simply because the Maharaja was in distress.
In that crucial situation the Maharaja, guided by his well-wishers and being mindful of the sanctity of his freedom, agreed to sign the “Instrument of Accession” on October 26, 1947. He did sign the historic document, retaining as far as practicable the autonomy of J&K except India's dominance over Communication, External Affairs and Defence relating to the state of Jammu & Kashmir, a state acceding to the Indian Dominion.
The fact remains, the invaders occupied a part of the State now known as Pak occupied Kashmir that was clandestinely declared by a handful of rebel insurgents as Azad Kashmir even before the Maharaja had acceded to India. The geo-political boundary of the Maharaja's Jammu & Kashmir, notwithstanding the part ‘occupied' or ‘Azad', had become an Indian State in its entirety on and from the date the Instrument was signed. Indian forces landed in Kashmir on October 26, 1947. Sardar Vallabh-bhai Patel was the Hon'ble Home Minister in the Cabinet of Jawaharlal Nehru, the Prime Minister at the relevant time.
A voluntary accession, not a forcible annexation, therefore, is the historical truth as far as Indo-Kashmir relations are concerned. And presence of Indian uniformed platoons was or is not on a peace-keeping mission but to defend a territory of its own.
The event of accession was sanctified by the Constitution (7th Amendment) Act of 1956 whereby the First Schedule to the Constitution including Article 1(2) and Article 4 were amended. Entry No.15 as it stands by the amended schedule describes Jammu and Kashmir as—
“The territory which immediately before the commencement of this Constitution, was comprised in the Indian State of Jammu and Kashmir.” (This Constitution, namely, Consti-tution of India, came into force wef January 26, 1950.) By this expression the acceded ‘Jammu and Kashmir' as it were before, became an integral and inseverable part of the Indian Dominion, a conclusion that leaves no scope of controversy both within and outside India.
Article 370 of the Constitution of India , one of the most debated Articles, as of today, was stitched in our Constitution in Part-XXI as “Temporary, Transitional and Special Provision” with effect from December 1, 1963 by the 13th Constitution Amendment Act of 1962.
Clause 3 of this Article 370 gave a qualified power to the President of India, notwithstanding anything in any of the provisions of the Article, to declare:
“....by public notification that this Article (Art 370) shall cease to be operative or shall
be operative only with such exceptions and modifications and from such date as he may specify.
“Provided that recommendation of the Consti-tuent Assembly of the State referred to in Clause 2 shall be necessary before the President issues such a notification.”
Reference to the Constituent Assembly of the State in Clause 2 clearly refers to the Constituent Assembly of Jammu & Kashmir.
The President of India, in exercise of his power in Clause 2 of Article 370, declared the Article to be operative with the modification of the Explanation in Clause 1 wef November 17, 1952.
By the explanation so modified the Maharaja of Jammu and Kashmir, recognised by the President, was meant
The constitutional status of the State of Jammu and Kashmir, as it were, had continued since its accession with India.
Formation of a new State or Union Territory is certainly within the prerogative of the Parliament of India by adopting the process prescribed in Articles 3 and 4 of the Constitution of India.
A Constitutional Democracy functioning through the parliamentary system has to tread through the route the Constitution had charted.
In the case of formation of the Union Territories, one with and the other without a Legislature by the Reorganisation Act of 2019, that too, by dissecting a State having no Government or Legislature, the procedure the present government followed being subjudice before the Constitutional Court, we have to wait with patience for the verdict.
But before I lay my attention to the objects and reasons for the enactment of the Reorganisation Act, 2019, I like to record my humble appreciation for the wisdom and farsight of Nehru-Patel-Shyamaprasad-Baba-saheb and others for incorporating Article 370, not as a permanent provision but as a temporary and transitory one leaving the future of the acceded territory to the wisdom of their successors.
There are no two opinions that since its accession to India J & K had never ever been a peaceful State, since 1947. The Government of India, be it of the Congress or the NDA or the UPA, deployment of armed forces in the various parts of the State in thousands or lakhs (at present 1.85 lakhs) had no other option except occasionally attempting unsuccessful interven-tion by interlocutors with those responsible for the uneasy situation. At the end of the day, normalcy, tranquillity, peace, law and order had remained irretrievable casualties in the hands of cross-border vandalism perpetually indulged in by Pakistan, internal terror activities organised by terror outfits within, deplorable attacks on the law-keeping forces by misguided youths of the Valley.
The much-too-favoured doctrine of ‘Jamhu-riat, Kashmiriyat and Insaniyat', propounded by the late former Prime Minister Atal Behari Vajpayee, the new approach of development of the State by Dr Manmohan Singh or for that matter of an unholy coalition of Mehbooba Mufti's PDP and Narendra Modi's BJP could not salvage the State out of its age-old, traditional theatre of violence, terror and subversive activities.
The reasons for such diabolic situation are not that too remote to trace. The unholy, greedy and sinister activity of cross-border inroads by Pakistan apart, activities of the Jamiat-e-Islami of Jammu and Kashmir, anti-Indian political and religious hate campaign organised by the All Kashmir Hurriyat Conference together with unprecedented excesses caused by the Indian forces, the CRPF, the BSF, the Army under cover of the Armed Forces (Special Powers) Act, 1958 created an atmosphere of pathological suspicion, mistrust and lack of rational approach to the real issues lying hidden in the Valley and the mind of poor inhabitants have turned the problem much too complex.
Numbers of armed conflicts, deployment of countless Indian forces, series of bilateral talks exchanges of cultural missions, trade pacts, attempts at normalisation of relations by way of travel and tourism, goodwill missions could not bring the hostility of the neighbours to an end. With the untiring cross-border raids by Pak raiders and the indigenous people adopting violent methods of expressing their hostility, angst and discontent against the Indian forces, Kashmir remained a perennial problem for the Government of India.
Therefore the Union Government, run by the BJP, as wisdom prevailed upon them, promul-gated the J & K Reorganisation Act, 2019.
The party had Kashmir as its political agenda in successive elections, we know. The special status provided to the State was their main emphasis for the issue. Committed to abrogate Article 370 from the Constitution which, according to their think-tanks, was the prime source, besides Article 35A, of endowing the State special status ignoring the concept of “Ek Desh, Ek Jati, Ek Nishan”, the party in power, with a thumping majority in the Lok Sabha and by procuring support by default in the Rajya Sabha, took to the route of ‘parliamentary sanction'.
The success or failure of the move cannot be immediately assessed. But in the light of the objects and reasons purportedly motvating the government to legislate the J & K Reorganisation Act, 2019 some pertinent questions engage our attention.
1. Spreading over 17,420 square meters with a difficult terrain, comprising of two Districts, Leh and Kargil, with two sub-districts of Ladakh region, as it were, inhabitated by a total population of 2.74 lakhs out of which 2.071 lakhs in Leh only, was an integral part of Jammu since 1842 when it was incorporated into the Dogra state of Jammu and Kashmir. While constituting a new ‘Division' with a status of Union Territory, it has not only been carved out of Jammu but to respond to its long pending demand of giving such status, demographic imbalance of the Division has been deliberately ignored. The Divison registers its population with 39.7 per cent Buddhists, 12.01 per cent Hindus, as against 46.4 per cent Muslims. Of the nine Union Territories in the country Ladakh is the first Buddhist Union Territory as it is claimed.
Regarding the ‘long pending demand' of an indigenous population of a region asking for conferment of a particular status, would the government show its benevolent attitude towards the Gorkhas' demand for ‘Gorkhaland', the ‘Coach' and other clans for a Kamtapur in WB, the inhabitants of different parts of the State of Uttar Pradesh claiming for separate identity such as Awadh, Purbanchal, Harit-pradesh, Bundelkhand; Kalinga or Rarbhumi carving out of Odisha; Bhojpur and Mithila by dissecting Bihar; Kutch and Saurasthra out of Gujarat; Konkan, Marathwada or Vidharba out of Maharasthra; Garoland out of Meghalaya; Tipraland out of Tripura; or Kongonadu out of Tamilnadu; Bodoland out of Assam?
Reorganisation of a State, though constitu-tionally permissible and has been done many a time, should such steps be taken on grounds of long-standing demands of a section of the inhabitants of the concerned region or division whenever raised and/or to address complex internal security situation fuelled by cross-border terrorism in any region of the Indian territory? In a country of diverse languages, religions, cultures and ethnic diversity like ours, should we yield to a so-called longstanding demand of a section of the people of a State and take to an easy route of dissecting the State into as many sections or divisions, as may contain the rabble-rousers? Would it not, in course of time, hit at the route of federalism and encourage balkanisation?
In the context of creation of two Union Territories by dissecting Jammu and Kashmir, the questions raised above have to be tested in course of time. We have to wait for the after-effects of the step the government adopted to achieve the object in the case at hand.
“Internal Security” is certainly a very important factor that needs to be addressed by any government responsible to maintain law and order, peace and progress and indivisibility of the sovereign power of the state. The state is not only the protector of individual freedom but also the main architect of creating a congenial atmosphere in which each and every citizen gets his desired opportunity to develope his own self, without of course induging in or prosecuting any anti-state or anti-national activity. It is the prerogative of the sovereign power to regulate, control, and curb any individual or collective action which tend to hit at the very root of a civilised system of popular government. In discharging such an onerous responsibility there cannot be any restraint desisting the sovereign power from using force to bring a hostile and violent situation to normality. But unleashing unbridled and wanton force can never be the only weapon in the hands of the sovereign power. The state, as the political scientists, starting from Hobbs, Locke, Mill, Bentham, Rousseon, have categorically said, is the offspring of the ‘will by the people'. This ‘will' certainly is not a perverse, irrational or idiosyncratic adventurism in complete negation of the inherent rationality of individuals as also a group of individuals. In utter negation or complete rejection of the genetic quality of human virtues, a sovereign power cannot take or afford to
take the entire race as nothing but a rowdy gangster of habitual offenders. Not only would such an approach be diabolic but a totally misconceived premise to bank upon to restore peace, tranquillity or normalcy in a given society. The sovereign power, therefore, has to tread onto other routes to reach its goal of normal social order.
Illustrations are galore on the point that conflict resolutions are but seldom achievements of hostile counter-offensives. Mutual under-standing, rational approach to reach at the root of the issue that generates the conflict and meaningful discourse thereon with a view to arriving at a conclusion mutually beneficial, dignified and practicable, have always been regarded as the cardinal principles for solution of any conflict, be it individual, collective, national or international. Howsoever, mighty and powerful one entity might be, it cannot afford to crush a determined, organised group of people guided by its own conviction, may be wholly devoid of any rationality, unacceptable as subversive, by deployment of armed personnel. Any such attempt scores failed pursuits. It failed in Laos, in Cambodia, Lebanon, Vietnam, Bangladesh in different parts of South America or Africa.
Situations in Jammu & Kashmir, have down the ages, become more hazardous, not only because of the cross-border infiltration of armed personnel, unethically encouraged and supported by Pakistan but more dangerously including a vicious psychology of anti-India hatred, religious bias, imaginary, sense of deliberate deprivation by the Government of India. With humility, it can be said that the political outfits in the State, barring a few, have shown no real interest to address these issues with clarity and vision and suggest ways and means to bring home a permanent solution rather than indulging into an unrealistic emphasis on diverse ethnic interest leading to a situation as it is to day.
The solution that the government of the day suggest by dissecting the State into two Union Territories and deploying armed personnel in umpteen numbers may give the Centre unbridled power to rule the two entities with its handpicked envoys. Would the mechanism bring desired result in a peaceful, law abiding, terror free Kashmir? That remains a serious enigma to us.
Morning shows the day. At least the 40th morning of J & K is not free from haze.
Let us not be ranked as cursed pessimists. We are all optimists and believe in the pious will of the state.
The author is a former Congress Member of the Lok Sabha and Rajya Sabha, General Secretary, Congress Party in Parliament, and a senior advocate of the Calcutta High Court.