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Atavistic under duress

June 03, 2003 16:21 IST

A feisty female has the plaint that this columnist is atavistic in matters related to Jammu and Kashmir. But when media elite and policy pundits repeatedly distort or ignore the critical facts of history for millions in India and elsewhere, what is one to do but retreat into time in an effort to surgically remove the malignant misinformation?

Take the latest three instances of the last few days.

First was the edit page article in The Hindu of May 27 by Rajindar Sachar, all of 82 years and six months old, Lahore-born and Lahore-educated, and a retired chief justice of Delhi high court. He believes 'For fruitful talks with Pakistan, it is necessary to broadly work out an acceptable arrangement internally in Jammu and Kashmir.' This hypothesis is quite quixotic, but be that as it may, it is his policy recommendation on this 'acceptable arrangement' that betrays a shocking unconcern for historical truth. The following is what he proposes:

'If all the political parties give an assurance that Article 370 will not be abrogated, and that the pre-1953 status -- by which Jammu and Kashmir had acceded to India only subjects of Defence, Foreign Affairs, Communication and Currency -- will be given a constitutional status with a proviso that similar autonomy will be given to the regions of Jammu and Ladakh, the people will accept it…'

The above proposal has any number of flaws. J&K state acceded to India on October 26, 1947 -- now if that be Sachar's 'pre-1953,' then the J&K maharaja's rule subject to Britain's suzerainty is also pre-1953. Further, the subject of 'Currency' was not one of those fields on which the right of legislation was extended to the dominion of India at the time of the 1947 accession. Sachar apparently has not even looked at the Instrument of Accession signed by the maharaja and the schedule attached to it entitled 'The Matters to Which the Dominion Legislature may Make Laws for this State,' or, having seen it once in his judicial career of long ago, chooses to recall it only from his ageing memory for the benefit of the thousands of readers of The Hindu.

Sachar also seems to forget that i. Praja Parishad, a Sangh outfit in J&K, opposed Article 370 right from its inception ii. the entire Sangh Parivar, including its political arm, the BJP, has wanted the Article's abrogation all these long years iii. organisations with a voice in Jammu and Ladakh regions only last year reiterated their desire to be fully integrated with the Indian Union without the yoke of Article 370 and iv. the Kashmiri Pandits want a homeland in the Kashmir valley without that Article. So how does Sachar even expect all political parties to give up on Article 370? And why does he so wish? To please the Muslims of Lahore and elsewhere?

Arguing that 'People in the valley yearn for peace provided the Centre …agrees to a mechanism to further their aspirations while remaining part of the Indian Union,' Sachar advocates the pre-1953 status as a Constitutional arrangement for the Kashmir Valley and a 'similar autonomy for the Jammu and Ladakh regions.' Apart from the fact that Jammu and Ladakh have never even asked for 'pre-'53' status, the old man does not seem to know that the people of J&K as a whole were denied Indian citizenship till May 14, 1954 when the President of India issued, under Article 370, the Constitution (Application to Jammu and Kashmir) Order.

Till that date, they did not enjoy the whole gamut of fundamental rights which Indian citizenship confers. The Supreme Court too was beyond their pale till May 14, 1954.So does Sachar now want to be atavistic and transport the people of J&K to that very pre-'53 state of affairs?

One is therefore compelled to wager that that the former CJ of Delhi high court -- to whom The Hindu throws open its pseudo-secular and anti-BJP edit page so often -- is unaware of the Presidential Order of May 1954, is not familiar with the J&K State Constitution, 1957, and is therefore unaware that Section 147 of that very Constitution prohibits the introduction in the state legislature of any bill or amendment seeking to change the provisions of the Constitution of India already applicable in relation to the state.

One is prepared to also wager that Sachar has recommended the pre-'53 status because the BJP-led NDA government has denied it to the Abdullah dynasty. By the way, why doesn't Sachar make any similar recommendation on the known plight of the people of Pakistan occupied Kashmir in the context of the current thaw in Indo-Pak relations?

Shift now to the views of America as articulated by its spokesman, Richard Boucher. According to a PTI report carried in The Hindu of May 30, Boucher stated in Washington the other day that there was no change in the US policy that a political settlement between India and Pakistan must take into account "the wishes of the people of Kashmir".

Ah, what a lovely phrase that is -- 'wishes of the people.' Never mind whether George W Bush occupied the Oval office through the wishes of the people or through a Supreme Court verdict; and never mind, again, whether Bush let loose his forces in Iraq through the wishes of the people. But Uncle Sam wants the J&K issue to be decided by those 'wishes of the people' -- meaning, you know what.

Clearly, the US doesn't know, or deliberately ignores, the fact that the people of the Indian-administered J&K long ago ratified their maharaja's decision to accede to India -- a decision taken when GWB was a 15-month tot in nappies. That historic ratification occurred on February 15, 1954 when 64 of the 75 democratically elected members of the J&K Constituent Assembly voted unanimously to approve that accession. (Of the 11 members absent, six were under detention in jail.)

Also in jail then, following the charge of advocating secession levied against him by some members of his Cabinet was Sheikh Abdullah, the prime minister of the interim government of J&K. He was the undisputed Lion of Kashmir who could have prevailed upon all his party's 64 voting members of the Constituent Assembly to oppose the ratification of the state's accession to India. But India won the day. That ratification was, moreover, enshrined in the J&K state constitution formulated by the Constituent Assembly.

Section 3 of that Constitution laid down that 'The State of Jammu and Kashmir is and shall be an integral part of the Union of India.' This provision was made a lifetime provision by Section 147 that prevents the introduction of any bill or amendment seeking to change that Section 3.

That Constitution came into force on January 26, 1957 when 'For the first time in the history of Kashmir, the State assumed the status of a constitutional state -- because the constitution represents the will of the people' (Page 195, The Constitution of Jammu & Kashmir: Its Development & Comments, Universal Law Publishing Pvt Ltd., New Delhi, third edition, 1998, by Dr A S Anand, former chief justice of India.) Four pages later in that book, Dr Anand says, 'The source of the Constitution of Kashmir is the will of the people...'

The billion-dollar question really is whether the people of the various regions of Kashmir of Pakistan occupied Kashmir have ever been given 'free and fair' elections to express their opinion as to whether they wish to continue being ruled by despots and dictators in Islamabad or whether they wish to belong to the world's biggest acknowledged democracy known as Bharat and Hindustan and India.

The third and last cause of this columnist's atavism today is our prime minister. V S Chandrasekar's report from Berlin posted on rediff.com informed us that to a German reporter's question why India was hesitant about holding a referendum in Kashmir despite an old UN resolution to that effect, the prime minister replied that India is a democratic country and from time to time elections have been held in Jammu and Kashmir. 'The people of the state have given a clear verdict and there is no need for any fresh decision (referendum),' he said.

Now this reply of Vajpayee is sad, tragic -- for the simple reason that it's not the truth. And the truth is that India was not hesitant to hold the plebiscite to which she had committed when accepting the principles enumerated in the resolution of August 13, 1948 of the United Nations Commission for India and Pakistan and reiterated in the commission's subsequent resolution of January 5, 1949. But, as laid out in the former resolution, the crucial pre-requisites for holding that plebiscite were --

  • The Government of Pakistan agrees to withdraw its troops from the State (of J&K)
  • Pakistan will secure the withdrawal from the State (of J&K) of tribesmen and Pakistan nationals not normally resident therein 'who have entered the State for the purpose of fighting'
  • Pending a final solution, the territory evacuated by Pakistan will be administered by the local authorities under the surveillance of the commission (ie UNCIP)
  • After the commission have notified India that the tribesmen and Pakistan nationals have withdrawn, India begins to withdraw the bulk of its forces in stages agreed upon by the commission

None of the above pre-requisites for a plebiscite have been met as yet. Pakistan has neither withdrawn its forces, nor evacuated J&K even 54 years and six months after its acceptance of the UN resolution of August 13, 1948 was officially communicated to the UN by its letter of December 25, 1948. Why then India should even be questioned about honouring its commitment to a plebiscite in J&K?

However, Vajpayee, at Berlin the other day, chose to divert the questioning newsman from the path of plebiscite into the field of India-administered J&K being a democracy and the latest round of free and fair elections conducted in that state. Instead, that was when our swadeshi poet laureate should have become atavistic -- without duress!

Arvind Lavakare