Of Article 370, Plebiscite & Hindu Refugees of POJ&K Flogging Dead Horses and Ignoring Live Issues

Of Article 370, Plebiscite & Hindu Refugees of POJ&K Flogging Dead Horses and Ignoring Live Issues

by Madhu Purnima Kishwar - Friday, September 16, 2016 06:17 PM IST

Of Article 370, Plebiscite & Hindu Refugees of POJ&K Flogging Dead Horses and Ignoring Live Issues

A protest in Kashmir (SAJJAD HUSSAIN/AFP/Getty Images)) 
  • Kashmir is in churn. A full historical analysis of the problem, how successive Central governments have bungled, and why Article 370 is hardly the issue.

Whenever Kashmir witnesses a new violent upsurge, with pro-Pak secessionists gathering fresh steam to demand a plebiscite so that they can exercise their right to secede to Pakistan, the nationalist opinion in India responds by pressing the demand for the abrogation of Article 370 of the Indian Constitution which assures a “special status” to the state of Jammu and Kashmir. Similarly, the demand for plebiscite in the state is met with jingoistic assertion that Kashmir is an “integral part of India” which no power on earth can take away. The emotional attachment to Kashmir is understandable but not the political jingoism backing it.

India has, thus, far fought a defensive battle on the Kashmir issue against the illegitimate claims of Pakistan, because the Indian government has never bothered to counter the systematic disinformation campaign unleashed by that country. This article is an attempt to shed light on vital but ignored facts behind the Kashmir dispute.

The foundational principle of Jinnah’s two-nation theory was that Hindus and Muslims were distinct and irreconcilable nationalities, not just two religious communities co-inhabiting the same land. Therefore, they could never co-exist in peace on equal terms. The logical outcome of this ideology was the bloody Partition of India in 1947 based on the bizarre principle that Muslim majority states would go to Pakistan and Hindu majority to India, with Pakistan making no commitment towards protecting the Hindu minority under its jurisdiction, in the way India did with regard to the millions of Muslims who continued staying in India. Pakistan solved its “minority problem” by near-total genocide and ethnic cleansing of Hindus and Sikhs while India tried to build special protections for minorities, which has enabled the Muslim population to grow both in size and political clout. Having finished off its own minorities, Pakistan began getting more and more belligerent in claiming Kashmir as the “unfinished agenda” of the Partition. The ethnic cleansing of Kashmiri Pandits was meant to perform the same role that Jinnah’s Direct Action Call did in forcing the Partition of India.

The seeds of this divisive game were sowed by the British in the Government of India Act of 1935 and resurrected in a more lethal form in 1947. However, in states where the ruler belonged to one religion and the population to another, as in Junagarh and Hyderabad (Muslim ruler vs. Hindu population), and Jammu and Kashmir (Hindu ruler vs. Muslim majority population), the will of the population was also to be confirmed.

In the Government of India Act of 1935, the British, in their typically divisive manner, had put in a provision that Indian states under princely rulers could accede to British India while retaining internal autonomy under a federal government.

This whole scheme was abandoned in 1939 as a result of the outbreak of the Second World War. In 1947, before the Partition, this idea was revived again. The British took the view that because their rule had been established directly between the British crown and the princely states, they could not be transferred to the newly independent dominions of India and Pakistan. At the same time, Britain was not prepared to continue to carry the obligations required for keeping princely states under its dominion by maintaining troops in India for the defence of the princely rulers. The British government therefore decided that paramountcy, together with all treaties between them and the princely states, would come to an end upon the British departure from India.

The termination of paramountcy would have in principle meant that all rights that flowed from the states’ relationship with the British crown would return to them, leaving them free to negotiate relationships with the new states of India and Pakistan “on a basis of complete freedom”. Early British plans for the transfer of power, such as the offer produced by the Cripps Mission, recognised the possibility that some princely states might choose to stand out of independent India. In 1947, this issue took a life of its own.

Of Article 370, Plebiscite & Hindu Refugees of POJ&K Flogging Dead Horses and Ignoring Live Issues

The Instrument of Accession allowed princely states autonomy over a number of subjects barring three, namely— defence, foreign affairs and communications.

Ironically, as far as the accession of Jammu and Kashmir was concerned, it was not the Kashmiri Muslims who created hurdles in the way of joining India. It was the Hindu ruler of Jammu and Kashmir, Maharaja Hari Singh, whose dilly dallying due to the delusionary ambition to carve out Jammu and Kashmir as an independent nation, instead of opting for either India or Pakistan, that created a political mess whose tragic legacy has become a millstone around India’s neck. For a while, Hari Singh even thought of joining Pakistan, hoping to negotiate better terms than being offered by India. While he was exploring the available options, Pakistan broke the stalemate by sending troops and raiders to occupy Jammu and Kashmir by brute force.

The raiders indulged in wanton killings, loot, plunder and rape with a view to terrorising Hari Singh and the Kashmiri population into submission. The Pakistan army managed to subjugate large areas that are now referred to as Pakistan Occupied Kashmir (PoK) and had almost reached Srinagar when the Maharaja woke up to his vulnerable situation and sent the following pathetic letter in October 1947 to Lord Mountbatten, who was at the time the Governor General of India.

My dear Lord Mountbatten,

I have to inform your Excellency that a grave emergency has arisen in my State and request immediate assistance of your Government.

As your Excellency is aware the State of Jammu and Kashmir has not acceded to the Dominion of India or to Pakistan. Geographically my State is contiguous to both the Dominions. It has vital economical and cultural llinks with both of them. Besides my State has a common boundary with the Soviet Republic and China. In their external relations the Dominions of India and Pakistan cannot ignore this fact.

I wanted to take time to decide to which Dominion I should accede, or whether it is not in the best interests of both the Dominions and my State to stand independent, of course with friendly and cordial relations with both.

I accordingly approached the Dominions of India and Pakistan to enter into Standstill Agreement with my State. The Pakistan Government accepted this Agreement. The Dominion of India desired further discussions with representatives of my Government. I could not arrange this in view of the developments indicated below. In fact the Pakistan Government are operating Post and Telegraph system inside the State.

Though we have got a Standstill Agreement with the Pakistan Government that Government permitted steady and increasing strangulation of supplies like food, salt and petrol to my State.

Afridis, soldiers in plain clothes, and desperadoes with modern weapons have been allowed to infilter into the State at first in Poonch and then in Sialkot and finally in mass area adjoining Hazara District on the Ramkot side. The result has been that the limited number of troops at the disposal of the State had to be dispersed and thus had to face the enemy at the several points simultaneously, that it has become difficult to stop the wanton destruction of life and property and looting. The Mahora powerhouse which supplies the electric current to the whole of Srinagar has been burnt. The number of women who have been kidnapped and raped makes my heart bleed. The wild forces thus let loose on the State are marching on with the aim of capturing Srinagar, the summer Capital of my Government, as first step to over-running the whole State.

The mass infiltration of tribesmen drawn from distant areas of the North-West Frontier coming regularly in motor trucks using Mansehra-Muzaffarabad Road and fully armed with up-to-date weapons cannot possibly be done without the knowledge of the Provisional Government of the North-West Frontier Province and the Government of Pakistan. In spite of repeated requests made by my Government no attempt has been made to check these raiders or stop them from coming into my State. The Pakistan Radio even put out a story that a Provisional Government had been set up in Kashmir. The people of my State both the Muslims and non-Muslims generally have taken no part at all.

With the conditions obtaining at present in my State and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian Dominion. Naturally they cannot send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government. The other alternative is to leave my State and my people to free-booters. On this basis no civilized Government can exist or be maintained. This alternative I will never allow to happen as long as I am Ruler of the State and I have life to defend my country.

I am also to inform your Excellency’s Government that it is my intention at once to set up an interim Government and ask Sheikh Abdullah to carry the responsibilities in this emergency with my Prime Minister.

If my State has to be saved immediate assistance must be available at Srinagar. Mr Menon is fully aware of the situation and he will explain to you, if further explanation is needed.

In haste and with kind regards,

Your sincerely,

Hari Singh

The Palace, Jammu

26th October, 1947

It is noteworthy that Hari Singh and his sadre-riyasat, fled to Jammu even before the Indian troops landed in Kashmir to repel the Pakistan aggression, because they didn’t have enough soldiers to resist the Pak invasion, and yet Hari Singh held on to the fantasy of making Jammu and Kashmir an “independent” country.

It was Sheikh Abdullah who organised people’s militia to push back the raiders. Thus, Kashmiri Muslims fought back the Pakistani army and the accompanying raiders, clearly indicating their resolve in favour of India.

Sheikh Abdullah
Sheikh Abdullah

Fortunately, Sardar Patel was the Home Minister of India and took a swift decision to send the Indian Army to defend Jammu and Kashmir even though Prime Minister Nehru was not really ready for such firm action. The Indian Army swiftly recaptured Srinagar and had begun to push back the Pakistani raiders when Nehru halted the army and prevented it from reclaiming the entire territory of Jammu and Kashmir, which came under Hari Singh’s jurisdiction—much to the chagrin of Sardar Patel. The army generals had told Nehru that given a few more days, they could recover the entire region illegally occupied by Pakistan but Nehru vetoed that course of action though Patel favoured it.

Stranger still, after Hari Singh had signed the Instrument of Accession with India, Nehru took an even bizarre step by taking the matter to the UN with the unilateral promise of holding a plebiscite in order to affirm the “will of the people” of Jammu and Kashmir, even though he was not required to do so. The United Nations (UN) ordered a ceasefire and the Indian army was forced to halt even though it was advancing rapidly to take back the entire area of PoK including Gilgit and Baltistan.

Nehru’s action not only puzzled his own colleagues and political observers of the day, but it continues to befuddle people of India till date. Therefore, all kinds of explanations have been offered by historians for this intervention that has kept India hostage to Pakistan’s aggressive designs through the last 70 years.

People’s Democratic Party MP Muzaffar Hussain Baig provides the most plausible explanation for Nehru’s ill-advised move. He says Nehru prevented the Indian Army from reclaiming the entire territory of Jammu and Kashmir, which came under Hari Singh’s jurisdiction, at the behest his friend, Sheikh Abdullah, who did not want to include PoK because the majority of people living in PoK are not ethnic Kashmiris.

They are mostly Gujjars, Jats, Pahadis, Rajputs, Sudhans, Abbasis and Awans. Had that area, which is now PoK but in 1947 was an integral part of Maharaja Hari Singh’s domain, also become part of India, ethnic Kashmiris would have become a minority in the united Jammu and Kashmir. That would have robbed Sheikh Abdullah the opportunity to remain the unquestioned leader of the people of Kashmir. Nehru happily obliged Abdullah and allowed Pakistan to retain control over PoK and called it “Azad Kashmir” even though the military rulers of Pakistan have kept it on a tight leash.

Despite continual repression, Pakistan has been eminently successful in propagating the lie about the “azadi” status of PoK, making it the dominant narrative for decades. The power of this distorted and falsified narrative is evident from the fact that even Wikipedia describes PoK as “Azad Kashmir—a self governing administrative division of Pakistan.” This is far from the prevailing reality of PoK. By contrast, Wikipedia describes the region that is with India as “Indian-administered state of Jammu and Kashmir.” It is a sign of great political incompetence that successive governments of India have failed to challenge this at least with Wikipedia.

It defies comprehension why India’s leaders have always fought a defensive battle on Kashmir and tragically failed to assert both within the country as well as in the international arena that with the Instrument of Accession signed by the Maharaja, Pak Occupied Kashmir legally and legitimately belongs to India.

The Caveats In The Instrument Of Accession

However, while signing the Instrument of Accession, the Maharaja added the following clauses:

a) All state subject laws will be retained;

b) Non-state subjects cannot purchase land in J&K. This law had been introduced by Maharaja Hari Singh long before 1947 with a significant caveat which we stall discuss later;

c) The Jammu and Kashmir state government will not automatically accept the entire Constitution of India that was at the time being framed by the Constituent Assembly of India. J&K reserved the right to accept whatever portions it found conducive and reject the application of whatever other articles it found contradictory to its state enacted constitution.

Thus, the “special status” of Jammu and Kashmir as enshrined in Article 370 and all the accompanying separatist provisions are a gift of Maharaja Hari Singh, a Hindu Dogra and not due to the intransigence of Kashmiri Muslims of the time. Ironically, in subsequent decades, Sheikh Abdullah and his National Conference (NC), succeeded in making the separatist agenda of Hari Singh, their hated foe, the most important identity prop for Kashmiri Muslims, by making them believe that they are a distinct and separate species of humanity!

There was absolutely no need for the Indian Government to accept special provisions demanded by Hari Singh. In 1947, Hari Singh had come begging on his knees to India to defend his state when Pakistan sent its armed raiders to forcibly take over Jammu and Kashmir. India could have dictated its terms to the Maharaja and made him accept accession on the same terms as other states. But Nehru blundered in offering needless concessions. He not only created the trap of 370 but also the UN Resolution.

Apart from preventing the Indian Army from reclaiming the lost territory of Jammu and Kashmir, Nehru, with his vacuous bravado, unilaterally took the matter to the UN, offering a plebiscite, even though he was not required to do so. For 14 days after the offer, Jinnah opposed the provision of plebiscite offered by Nehru. But he accepted it on the 15th day.

The Governor General of India, Lord Mountbatten, accepted this provision and added that after accession, the Government of India would confirm the wishes of the people.

However, this “agreement” between India and Pakistan became the basis of a Security Council Resolution under Chapter Six of the UN Charter. The Resolution stated that if and when a plebiscite is held in Jammu and Kashmir, it would be under UN supervision. For that, both India and Pak will have to withdraw armed forces from the entire territory under their respective control.

Limited Validity Of UN Resolution

It is noteworthy that the UN Resolution constitutes an “advisory”; it is not mandatory. The Resolution also provides that if any of the two countries ever violate each other’s territory, the UN could intervene either through economic boycott or failing that, use of force. There is no provision in the “Resolution” that the UN must or is committed to holding a plebiscite. It merely affirms that if India and Pakistan decide to hold a plebiscite, UN will supervise it.

As with Article 370, the offer of plebiscite was a needless imposition by Nehru on the state. But soon after the unnecessary bravado at UN, Nehru lost the nerve to push for plebiscite. In the 1950s, Pak was not ready for a plebiscite, because it would require withdrawing its army from the areas under its illegal occupation. As a matter of fact, Pakistan is even today in no position to meet with the pre-conditions set in the UN Resolution on the plebiscite.

When the Constituent Assembly of Jammu and Kashmir passed the Constitution of the state, 50 percent of land of Jammu and Kashmir (amounting to 42,000 sq km) was already under Pakistan control, out of which a major chunk has been gifted by Pakistan to China in recent years. This, despite the fact that the 27 October Instrument of Accession refers to the entire territory of Jammu and Kashmir, thereby implying that Pakistan has gifted away what does not belong to it legally.

Unfortunately, taking forward the Nehruvian legacy, the UPA Government did not lodge even a token protest in the international forum when Pakistan gave away geopolitically strategic and sensitive areas of Gilgit and Baltistan to China. The de facto control of that 50 percent territory may lie with China and Pakistan but the de jure control still rests with India because through the Instrument of Accession, the Maharaja surrendered the external sovereignty of the entire state of Jammu and Kashmir to India while he retained internal sovereignty.

Even the Constitution of Jammu and Kashmir, as well as that of India, recognises as its own the entire territory of Jammu and Kashmir as it existed on 15 August 1947. This is enshrined in Article Two of the Constitution, which refers to the entire territory of Jammu and Kashmir.

Legal Weight Of Article 370

In all other states, Home Minister Patel persuaded the princely rulers to surrender all powers to the Union of India, through the “Instrument of Merger”, in addition to signing the Instrument of Accession. The uniqueness of the Jammu and Kashmir situation lies in the fact that while other princely states also signed the Instrument of Merger, Jammu and Kashmir did not do so because it was not made applicable till Article 370 was enacted. In short, Jammu and Kashmir became constitutionally a part of India only through Article 370 and Article 2. Article 370 was called “temporary” because the Jammu and Kashmir Constituent Assembly was empowered to abrogate it or make it permanent by passing a Resolution.

Three kinds of jurisdictions and powers were created in the Constitution of India.

List 1 deals with powers that are the exclusively the domain of the Centre such as defence and currency and communications.

List 2 sets apart domains over which the Union of India gave to the states of India primary jurisdiction. These include education, health, law and order etc.

List 3 deals with the “concurrent” list which delineates those areas in which both states and the Centre exercise power. But as per law in case of conflict, the Central law shall prevail.

The Origins Of Separatism

The separatist sentiment was originally fanned by the National Conference with Sheikh Abdullah asserting that the abovementioned three-tier system won’t apply to Jammu and Kashmir because the state has signed only the Instrument of Accession, not of Merger. This position has been reiterated as and when convenient, both by his son Farooq Abdullah as well as his grandson Omar Abdullah. Whenever they want to blackmail India into giving them uncontrolled powers to loot the state, rig elections and run it without the least measure of accountability, they revive the demand for plebiscite, while at other times, they project themselves as wedded to the Indian Union. It is a common joke in Kashmir that Abdullahs carry three flags in their pocket—the Indian flag, the Autonomous Kashmir flag and the Pakistani flag. They wave one of the three flags depending on what suits them when.

Article 370 was given temporary status through Clause (iii) of Article 370 which says that Article 370 will be retained or abrogated according to the wishes of the Constituent Assembly of Jammu and Kashmir which in 1954 passed a Resolution that it will not abrogate Article 370.

However, Article 370 also states that if the Union of India wishes to extend certain powers to Jammu and Kashmir, they can do so. That’s how various central laws including the Income Tax Act, Central Vigilance Commission Act, Border Security Force Act, All India Services Act, Central Laws Extension Act 1956 have all been extended to Jammu and Kashmir. Home Minister Gulzari Lal Nanda had called 370 a tunnel through which India had ferreted out all the powers it needed, leaving it as an empty shell.

Rigged Elections And Snuffing Of Democracy

Unfortunately, Nehru messed up his equation with Sheikh Abdullah by first yielding too much and then reacting in a knee-jerk fashion by putting the Sheikh under house arrest because the Sheikh had by then started flirting with and tilting towards Pakistan since he was uncomfortable with the elements of accountability inherent in the democratic electoral system of India. The authoritarian streak of the Sher-e-Kashmir can be gauged by the fact that right from the first election, he started the tradition of brazen rigging and booth capturing even though at that time he was the unquestioned leader of Kashmiri Muslims and his party was sure to sweep elections.

But his intolerance was so fierce that he could not even stand a token opposition.

In his impassioned speech in the monsoon session of parliament in 2016, MP Muzaffar Hussain Baig summed up the tragedy of Kashmir very aptly by saying, no doubt Pakistan wanted to sow the seed of separation based on religious fanaticism, but it was the combined doings of the Congress and the National Conference that allowed that seed to sprout, take root and flourish.

He went on to describe how the Congress under Nehru and National Conference under Sheikh Abdullah jointly scripted the defeat of Indian democracy from the very start. At Nehru’s behest, Sheikh Abdullah was appointed the Prime Minister of Jammu and Kashmir without an election in March 1948. In the very first Constituent Assembly that was to be elected to draft the Constitution of Jammu and Kashmir, Sheikh Sahib did not allow even one non-NC candidate from the Valley to fill the election form, leave alone stand for election—all so that NC candidates won unopposed. This authoritarian streak was in full display at a time when the Sheikh was sure to sweep the polls in the Valley. People were beaten up and terrorised into withdrawing their nomination papers.

In the Jammu region with a Hindu majority, the NC did not have similar unquestioned sway. Therefore, the Jammu Praja Parishad filled in 15 forms of its candidates out of which 14 were summarily rejected without reason. Since Abdullah’s Party warned the Praja Parishad not to send in more forms, they opted to boycott the election in protest. Thus the Constituent Assembly formation itself saw the trampling of democracy by NC’s Sher-e-Kashmir who ensured that dissenting voices were kept out of it. Nehru reportedly pleaded with the Sheikh that he should allow at least token presence of the Opposition in the state, but to no effect.

Till 1952, Sheikh Abdullah paid at least lip service to Hindu-Muslim unity but it did not take long before he began showing impatience towards dissenting voices coming from Hindu-majority Jammu. Very few people remember that according to the original decision on granting special autonomy to Jammu and Kashmir, no one, including the President of India, could enter into Kashmir without the permission of Kashmir’s Prime Minister. To protest such separatist provisions, Shyama Prasad Mukherjee, who was part of the Nehru Cabinet till his protest resignation over the Nehru-Liaqat Ali Pact in 1952, decided to enter Jammu and Kashmir in defiance of the restrictive laws then in place. Mukherjee was arrested on 11 May 1953 while crossing the border and jailed under extremely harsh conditions without proper medical treatment for his ailment—dry pleurisy.

He died under mysterious circumstances on 23 June 1953 and was widely suspected to have been killed. First, he was denied treatment and later penicillin injections were given to him though Shyama Prasad had let it be known to doctors that he was allergic to penicillin. Despite countrywide protests, Nehru refused to concede to the demand for an impartial inquiry into the suspicious and sudden death of Shyama Prasad, thus, providing Sheikh Abdullah protection from a fair probe.

However, within two months, in August 1953, Nehru dismissed Sheikh Abdullah on charges of anti-India activities. The Union Government claimed to have found enough evidence that the Sheikh was flirting with Pakistan and was planning to take their help for declaring Kashmir’s Independence from India. The Sheikh was arrested and jailed. For a period, he was only under house arrest and was allowed to travel outside the state freely. Later, the Kashmir Conspiracy case was filed against him under legal provisions that would merit either life imprisonment or death sentence. In his place, the Nehru government imposed NC dissident Bakshi Ghulam Mohammad as Sadre Riyasat of the state. Bakshi’s elections were also rigged while Nehru looked the other way.

However, when Bakshi also began too assert his authority and raise uncomfortable questions, the Congress government at the Centre forced him to resign. The high-handedness of this resignation was pointed out in the Lok Sabha by Muzaffar Hussain Baig who said Bakshi was made to write it on a cigarette pack when he was summoned to Delhi.

After that, Gulam Mohammad Sadiq was similarly imposed as Chief Minister through unfair means. After a while, Sadiq also refused to play the obedient puppet. As punishment, the Congress High Command instigated a rebellion against him and installed Syed Mir Qasim in 1971. By this time, Indira Gandhi was in power. When she found that Qasim was beginning to trespass the lakshman rekha drawn for him, he too was dismissed, and Sheikh Abdullah released from house arrest and brought back, as Chief Minister without any election. The Kashmir Conspiracy case involving the serious charge of sedition was conveniently shoved under the carpet.

As per Baig, the NC did not have a single member in the Assembly at that time and yet Abdullah was installed as Chief Minister following the Indira-Sheikh accord.

However, that did not prevent him from being dislodged again in two years’ time because the Congress MLAs were asked to withdraw their support to him. This happened during the Emergency. This time, instead of tilting towards Pakistan, the NC joined the anti-Congress coalition that threw Indira Gandhi out of power in 1977 and allied with the Janata Party which allowed the Sheikh to come back to power through election. The reinstallation of the Sheikh through a relatively free election was hailed widely in Kashmir and Prime Minister Morarji Desai became a hero for Kashmiris for having vanquished Indira’s authoritarian regime and giving them a free election.

His son Farooq Abdullah was installed as Chief Minister after the Sheikh’s death in 1982. But he, too, didn’t believe in free and fair elections, even though to begin with he was popular enough to win without rigging. In keeping with the Congress tradition of dislodging non-Congress chief ministers, Farooq was brought down in less than two years by another Congress-backed NC rebel, Ghulam Mohammad Shah. Subsequently, Shah was also fired in March 1986 and Governor’s Rule imposed again.

Separatist Lobby Strengthened Due To Rigged Elections

It is this game of rigged elections by both NC and Congress along with the Union Government first imposing puppet Chief Ministers through extra-constitutional and undemocratic means and then dislodging them through equally questionable means that strengthened the hitherto small separatist lobby which had been carefully nurtured by Pakistan through monetary and other inducements. When the Governor’s Rule neared its end in 1987, even the disgruntled separatists, including the Jamait-e-Islami leader of the time, Yusuf Shah decided to get together and fight the 1987 Assembly election on a united platform— the Muslim United Front (MUF).

The “secular” National Conference had by then lost its democratic credentials and the new political formation chose religious identity as its glue. Tragically enough, the 1987 election witnessed the most brazen booth capturing and rigging followed by state repression when protests broke out against the electoral frauds. Yusuf Shah who was winning by a landslide margin saw his victory snatched away from him by the NC which declared its own Ghulam Mohnuddin Shah the winner and put Yusuf Shah in jail. On his release from prison, Yusuf Shah crossed over to Pakistan and came to be known as Syed Salahuddin, the head of the self-proclaimed terrorist outfit, Hizbul Mujahiddin.

That is when a number of youngsters crossed the border for arms training and adopted the terrorist path to achieve secession from India. Had the successive Congress governments at the Centre not practiced shameful bungling and backed NC’s electoral frauds, the Kashmir issue may not have taken such a murderous and genocidal turn because uptil the 1970s, separatist sentiment was confined to a tiny minority.

All these shenanigans demoralised the large body of nationalist Kashmiris in the Valley who either left the Congress in disgust to join other parties or gave up taking interest in politics. The fathers and grandfathers of some of the current separatist leaders were committed Congressmen, some of who became the first targets of Pak-backed killing brigades. They also suffered at the hands of NC leaders who unleashed vicious defamation campaigns against them, calling them “gutter worms”, “Indian dogs” and traitors to Islam and Kashmir. Mufti Mohammad Syed, a prominent Congress leader of his time, felt compelled to quit Congress and first join Janata Dal and later formed his own regional party PDP for this reason, while most others became politically inert.

Thus, instead of nurturing the nationalist base in Kashmir, the Congress forced them out of politics or turned them against India.

Failure To Call Pakistan’s Bluff

Most important of all, had Nehru shown the guts to actually go ahead with the promised plebiscite instead of ducking it, Pakistan would have backed off instead of using it as a stick to beat India with in later decades. Even today Pakistan is not in a position to go for a plebiscite as per the UN Resolution because it would need to reclaim the large parts of territory of PoK it has gifted to China on a long lease. Given Pakistan’s dependence on China for military and other support, there is no way Pakistan can dare cancel the lease and ask China to vacate the area. Nor is China likely to oblige easily if by some miracle Pakistan were to gather the courage to demand eviction.

Furthermore, as per the UN Resolution, both India and Pakistan would have to withdraw their respective armies from the “disputed” areas under their control.

Given the discontent and rebellion brewing in PoK, due to continual repression in the so-called Azad Kashmir, today Pakistan is even less ready to free that area of army control than it was in 1950s, because Pakistan is imploding on all sides with Balochis, Sindhis, Pashtuns et al on the warpath against the nation state they were forced to be part of.

Therefore, if India were to call Pakistan’s bluff and actually offer a plebiscite, it is very likely that Pakistan will run for cover in utter panic.

Needless Fuss Over Article 370

Today, constitutionally, India cannot abrogate Article 370, because Article Two of the Indian Constitution says that the final decision to abrogate it rests with the Jammu and Kashmir Assembly. If we remove Article 370, all central powers like defence, communication and external affairs will revert to Jammu and Kashmir. It can be abrogated only by:

a) Amending the Indian Constitution, or

b) Having the Jammu and Kashmir assembly adopt the Constitutional amendment abrogating Article 370.

Article 368 gives Government of India the power to amend the Constitution. But Article 368 does not apply to Jammu and Kashmir.

However, it is time for people in India to understand that the fuss about Article 370 is totally meaningless because all the powers that India wants—including the power to impose Governor’s rule, sacking the elected Chief Minister—have already been appropriated.

In addition, 47 Presidential orders have been issued between 11 February 1956 and 19 February 1994, making various other provisions of the Constitution of India applicable to Jammu & Kashmir. All these orders were issued with the concurrence of the Jammu and Kashmir state government. The effect of these orders has been to extend 94 of the 97 subjects in the Union List (the powers of the Union Government) to the state of Jammu and Kashmir, and 260 of the 395 Articles of the Constitution of India. This process has actually defanged Article 370 of all its negative intents.

The main argument used in favour of abrogation is that the state laws of J&K do not allow non-state subjects to acquire land for development purposes and setting up new industries. But this plea is also half-valid because Section 140 of the Transfer of Property Act (amended in 1975) allows acquisition of land for industry, educational institutions, hotels and even charitable organisations. Therefore, there is no real hindrance to coming in of new investments in Kashmir.

However, if the Indian government is serious about conveying the message that Kashmir is not the bapauti of Muslims alone, who are in any case either converts or late entrants on the historical scene, all it needs to do is to enact a law that prohibits Kashmiris from buying properties and setting up businesses in other states of India.

Ever since the rise of ISI-sponsored militancy and terrorist politics in Kashmir, Muslims of the Valley have fanned out to other states of India in evergrowing numbers, buying large chunks of prime property in major cities, towns and each and every tourist destination of India. Even a hardliner like Syed Ali Shah Geelani has a home in Malviya Nagar of Delhi where he spends all his winters.

Virtually all five-star and four-star hotels in India have shops owned by Muslims of Kashmir. Even in Dilli Haats, marketing outlets for handicrafts in Delhi, a majority of the stalls have been captured by Valley Muslims. Many of these Kashmiris remain virulently separatist and have created an all-India network providing material and political support to ISI-backed terror groups mushrooming in other states of India.

Those who want secession better not be allowed to set up businesses in other states or get admission in premier educational universities outside Kashmir. This one-way traffic must stop. Only those Muslims who are willing to swear allegiance to India should be allowed to step out of Kashmir or trade with other states of India. Let Muslims of the Valley enjoy the full benefits of separatism.

More Urgent Concerns Ignored

While there is so much jingoistic fervour around the abrogation of Article 370, which is actually an empty shell, there is comparatively very low awareness of and concern for a much more important and easily doable issue—giving citizenship rights to Hindus who came to the Jammu region as uprooted refugees from Pakistan-Occupied Areas of Jammu & Kashmir in 1947.

It has been 70 years now since they sought refuge in India after being driven out at the time of Partition, but the successive governments in Jammu and Kashmir have steadfastly refused to treat them as subjects of the state with equal rights vis a vis other citizens. They have Indian citizenship but are not counted as Jammu and Kashmir subjects. As a result, they live marginalised and insecure lives, are not allowed to buy and own property in Jammu and Kashmir, nor are they entitled to admission in educational institutions or hold jobs in government that are reserved for state subjects. They can’t even get ration cards and other benefits available to Jammu and Kashmir citizens.

Restrictions on non-state subjects purchasing land or other forms of property or enjoying citizenship rights at par with state subjects owe their origin to the reign of Maharaja Hari Singh who enacted the Ijaazat Nama Rules. However, as per those laws, anyone who has lived in Kashmir for over 10 years can become a state subject.

Unfortunately, the National Conference did not allow Hindus from PoK and Jammu and Kashmir to become state subjects because they didn’t want even the slightest increase in the size of the Hindu population in the state in order to maintain its Muslim majority character.

Sadly, they number just a few lakhs. By contrast, India has absorbed a much higher number of illegal Muslim migrants from Bangladesh. But the NC didn’t want to create even a small opening for allowing those Hindus to enjoy equal citizenship rights even while Kashmiris have freely exercised their right to establish businesses in other states, buy properties and get jobs outside Jammu and Kashmir. It is tragic that successive governments at the Centre remained indifferent to the plight of PoK and Jammu and Kashmir oustees, and did not push for granting citizenship to them despite the fact that under the existing state laws they deserved that right after 10 years of continuous habitation in Jammu and Kashmir.

It is this anti-Hindu mindset nurtured with great ferocity by the National Conference that helped create conducive conditions for ethnic cleansing of Kashmiri Hindus from the Valley. The NC inculcated the fear of and hatred towards Hindus in Kashmir because they knew Hindus are the main roadblock to and counterweight against the secession of Kashmir to Pakistan, though demanded under the guise of “azadi”.

The BJP in its election manifesto for the Jammu and Kashmir assembly elections had promised full state subject rights to POK-uprooted Hindus just as it had promised to ensure safe return of Kashmiri Pandits to their homeland. Unfortunately, even the BJP’s alliance partner People’s Democratic Party let it be known that they are not willing to let that happen. The separatists expectedly went ballistic over the issue, alleging it was part of the “Hindutva conspiracy” to change the demographic profile of the Jammu region by bringing in a regular flow of Hindus from outside the state.

Surprisingly, the Modi government buckled under the pressure and pushed the issue under the carpet. But that has not prevented a new upsurge against the coalition government being fanned by Pakistan through its agents in Kashmir. It is such acts of submission and appeasement on the part of the Centre that has convinced the Kashmiri Muslim leaders that no matter how unreasonable their demands, the Centre will do all it can to placate them.

According to Muzaffar Hussain Baig, who has been the lone voice among the People’s Democratic Party leaders to have openly supported the demand of Pakistan-Occupied Jammu and Kashmir-displaced Hindus and the return of Kashmiri Pandits to the Valley, successive Congress governments at the Centre have been equally culpable in allowing anti-Hindu sentiment stoked by the National Conference to gain root in the Valley. Had the Central Government caught the bull by the horns, and allowed a full and frank debate on Article 370 and the actual content of the UN Resolution, Pakistan & ISI-backed separatists could not have gotten away with spreading disinformation and gross lies on this subject. Had the Government of India taken the trouble to disseminate accurate information, it could have put the real issues on the agenda—that is, Pakistan having to vacate Pakistan-Occupied Jammu and Kashmir. Instead it allowed misinformation spread by NC leaders to acquire the force of “truth” which led to all kinds of fears of phobias to become the driving force behind separatism.

Mercifully, Prime Minister Modi raised this issue in his Independence Day speech this year. But the issues he raised have been grabbed hold of by jingoists, who are still not allowing a frank and fearless debate on the lost legitimacy of plebiscite and irrelevance of Article 370. Instead, even a mention of these two is interpreted as an anti-India stance. One sincerely hopes that the Prime Minister will not play the defensive game on Kashmir that has been the hallmark of the Congress during its reign at the Centre. Separatists don’t deserve mollycoddling, which is what they have been getting thus far. They need to be dealt with a firm hand. Time for “winning their hearts and minds” of those committed to jihad and Islamo-fascism through dialogues and concessions is long over.

To quote the People’s Democratic Party’s General Secretary, Nizamuddin Bhatt, the separatist narrative in Kashmir has been allowed to become dominant because the Indian state has never dared to assert genuine nationalist discourse backed by democracy and good governance to counter the separatist discourse legitimised by the National Conference. That is why at times even the People’s Democratic Party gravitated towards soft separatism, even though its founder Mufti Mohammad Sayeed was a true-blooded nationalist. It’s time to reach out to the dormant nationalists in Kashmir and let Mehbooba Mufti know that the days of flirting with Pakistan and ISI-backed separatist outfits are over.

Madhu Purnima Kishwar is Maulana Azad National Professor, ICSSR, and the founder of human rights organisation, MANUSHI.

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