Friday, August 25, 2006

Kashmir III: Is it an integral part of India?

To take up a topic like this is equivalent to sitting in one of the meetings that take place between Indian and Pakistan delegations! Irony is that two enemies decide the fate of a third party - Kashmiris!

I see that many Indians believe as if it is a word of God that Kashmir is an 'integral part' of India, and they never question what it actually means. On the other side, Pakistanis believe that Kashmir is a ‘disputed territory’, even though it has been 60 years since Partition. And Kashmiris want to be left alone.

Isn't Kashmir an 'integral part' of India?

Yes, it is- as ratified by the Constituent Assembly of Kashmir in 1956. "The State of Jammu and Kashmir is and shall be an integral part of the Union of India" and it goes onto say that "The territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State."

And that's how we get that beautiful map with which we are all familiar with- which includes POK, Northern Regions and Aksai Chin, though Indian troops never put a foot there in the history of Independent India!

But, there is more to it than what is passed by a constituent Assembly. The whole debate stems from the differences in opinion between Pakistan and India, on what is legal- should people of Kashmir decide, or can the constituent assembly make a decision? While the plebiscite (or people’s opinion) was important to India when it annexed both Hyderabad and Junagarh by ignoring the opinion of their leader (the King), how come exactly the opposite logic is applied when it comes to Kashmir?

To know the history and its convolutions better I am taking the reader through some of the events that transpired in the history of Kashmir.

1947- Kashmir accedes to India- with some conditions, the prominent one being that a plebiscite should be held once the normalcy is restored.

Whether the normalcy is restored is a question of debate: India argues that since the demographics changed after the invasion, it is not in a position to hold a plebiscite. According to India, to bring such a normalcy now, in 2006, is completely out of question because the demographics have changed irrevocably. The situation of 1947 can never be attained. India blames Pakistan for this change in demographics due to its incursion in 1947; and after 1989, it blames Pakistan-sponsored Kashmir militancy for the forced migration of Pandits which altered the demographics further.

The argument of Pakistan- and also voiced by present day Kashmiri Muslims is this:
While Pakistan was ready to hold a plebiscite soon after the ceasefire of 1949, India never agreed to it- instead it used a Constituent Assembly to ratify a constitution which made Kashmir
an integral part of India- which is NOT a plebiscite. If the demographics did change in 1989, it’s mainly because
India didn't carry out the promises made in 1947, and also because of bad policies of India (like manipulating local elections). If they (Pakistan) could accept its wrong polices in Bangladesh and let it go, though reluctantly- after fighting a major war, why can't India accept its wrong policies and let Kashmir go? According to Pakistan and Kashmiri Muslims, India should take blame for what happened in Kashmir that led to migration of Pandits in 1989, and for the militancy in Kashmir. According to them militancy is nothing is nothing but a freedom struggle which has its origins in 1947. And India should still carry out plebiscite- now, better late than never, so that no further damage happens to Kashmir.

1948- India and Pakistan go to war over Kashmir. They agree to a ceasefire and the mutually agreed ceasefire line (of 1948) is now called LOC (Line of Control).

1952- Constituent Assembly of Kashmir accepted the accession to India, and formed a 'Sovereign state' of Jammu & Kashmir within the Indian Union.

Now, what does that mean? It is unlike any other accession any where in India. This
is unique in many ways. No other accession has been considered 'sovereign'. This word has many legal implications- it actually means they have their own decision making powers, and is practically a country in itself. The state of J&K had its own head of state (a President), called Sadar-i-Riyasat, and a Prime Minister while other states had Governors and Chief Ministers.

The state of J&K had autonomous powers unlike any other state in
India. India controlled ONLY the following three things in Kashmir- Defense, External Affairs, and Communications. (Indians cannot go and settle in Kashmir- later enshrined in Article 370 of Indian Constitution). Now, that is something quite unique, right? I mean- no taxes for India, no police from India, and no settlers from India. Do we have any other equivalent state in India like that? NO! But yes, there is a country called Bhutan which has a similar arrangement with India. Bhutan is a sovereign country ruled by a King but India controls Bhutanese Defense, External affairs and Communications. Do we ever think that Bhutan is a part of India? Not Really!

1956- Kashmir prepared its own constitution- called Constitution of Jammu & Kashmir which made Kashmir an integral part of India. But Kashmir retained its autonomous powers for a long time (till 1974)

1965- India and Pakistan go to war over Kashmir second time. Both India and Pakistan agree to a UN resolution and maintain LOC (Line of Control).

1971- Third war between India and Pakistan. India has a decisive victory and it liberates Bangladesh.

1972- Simla Accord signed between Pakistan and India.

This is the document to which Indians refer to as a sacred document when it comes to respecting Line of Control (as seen in during Kargil war). At the same time this document is completely ignored by India when it comes to another statement in the same accord- "Both Governments agree that ..., the representatives of the two sides will meet to discuss further the modalities and arrangements for ..., a final settlement of Jammu and Kashmir ..."

The implicit meaning of this statement is what Pakistan is most obsessed about and this is what pains them the most- that the issue of Kashmir has ‘not been resolved’- and hence they
label it as a 'disputed region' as agreed by India and Pakistan in this accord. This accord gives Pakistan a role to play in Kashmir issue- this is where they agree to work ‘bilaterally’ rather than use any international forum. They also agree to respect LOC till the issue is resolved. Why did
India include Pakistan into Kashmir affairs especially when it just had secured a decisive victory against Pakistan to liberate Bangladesh (December, 1971)?

1974- Kashmir Accord signed between Kashmir and India.

Now, things get interesting! In 1974, only after the third war with Pakistan, did Indian Government under Indira Gandhi, decide to make this accession a legal entity (as a ‘constituent’ unit) through Kashmir Accord. And how did she do it? She first incarcerated Sheikh Abdullah, and then released him to make him sign an accord called ‘Kashmir Accord’, which strips Kashmir of all its autonomous powers. But Kashmir still enjoyed Article 370 (which doesn't allow settlers in Kashmir). So, in one way, she goes onto make Kashmir an integral and ‘constituent’ unit of India without any autonomous powers but retains Article 370 which still gives this state special privileges compared to most other states.

So, India signed Simla Accord in 1972, then did a volte face to sign another document called Kashmir Accord in 1974, thus overriding Simla Accord in some respect, with no participation from Pakistan. Kashmir Accord states- "the State of Jammu and Kashmir which is a constituent unit of the Union of India...". And how did India do this? It led a leader sign an accord under coercion, seeking no mandate from people!

After that it’s all history- we Indians know Kashmir as constituent and integral part of India. And to help all those who want to fight for Kashmir to the finish, here's another one:

1994- India passes a Parliament Resolution on Kashmir- "The State of Jammu & Kashmir has been, is and shall be an integral part of India and any attempts to separate it from the rest of the country will be resisted by all necessary means;"

1 comment:

  1. India should convene a new constituent assembly to draft a new capitalist constitution for the post-nation state world, which Buddhist China may also adopt after it overthrows the evil Communism.
    (1) Indian Constitution drafted in 1950 and undergone numerous amendments during one-dominant party system has become outdated and India needs a new constitutional assembly to draft a totally new constitution. Kalki Gaur has proposed a new Draft of a Constitution of India. Just as victorious USA imposed constitutions on Germany, Italy, Japan, Afghanistan and Iraq, similarly British Empire imposed 1950 Constitution on India to keep India week, instable and divided. It is time to convene a new Constitutional Assembly of India to draft de novo a Constitution of India. The 1950 Constitution is badly drafted and became outdated by numerous amendments, and 60 years is a too long a period for a Constitution to remain relevant and suitable for the modern aspirations of a Rising India, the Super Power of the world and in an age where archaic-nations states are giving way for continental-size regional supra-national federations. We need a new Constitution suitable for reunification of Indian Empire and to allow Greater India to emerge in Southeast Asia and Central Asia. It is a time to adopt a new constitution drafted by the new generation of India suitable for Global Power India.
    (2) Prakash Karat of the CPM asked for EC reform. Once again, the CPI(M) and the Election Commission of India are on a collision course. In a direct attack on the Election Commission, CPI(M) General Secretary Prakash Karat said he had never seen a more biased Election Commission and wants EC to be accountable. The CPM made it clear that unless something is done to stem the rot, the commission - one of India's finest institutions since independence, will degenerate the way so many other institutions have been destroyed in the country. Bitter with their Bengal experience, where the Election Commission held almost a month long elections spread over five phases, the CPI(M) has now prepared a note that raises the issue of reforming the EC of India. The CPI(M) plans to circulate it among all political parties. The CPI(M) wants a legislation that will clearly spell out the power of the Commission as well as ensure political neutrality. "Here we have a commission that told us to our face, elections in Bengal are held according to Rig veda." said Prakash Karat, on Wednesday, August 30, 2006 in New Delhi. Prakash Karat wants to mould Indian Election Commission to make it similar to Chinese Election Commission and to make Indian Democracy similar to the Chinese democracy, the motherland of every CPM Communist in India. Perhaps Indians should work to overthrow Communism in China and install new Constitution of China similar to Indian Constitution.
    (2) Some of the reforms suggested by CPI(M) demanded include: (a) No election commissioner should be associated with any political party even after his retirement. Kalki Gaur supports this reform.
    (b) An Election Commissioner should not go on to become a member of any political party or a member of parliament and they should undertake an oath to this effect at the time of appointment The government should consult the leader of the opposition in Lok Sabha and the Chief Justice of India before naming election commissioners There should be greater clarity on the powers of election observers. Kalki Gaur supports this reform.
    (3) Whether or not this note changes the way the Election Commission functions, but it will surely generate an intense debate. "It is a democratic country and everyone has the right to express their views. He said that former ECs cannot get associated with politics? I agree with that view," said N Gopalaswamy, Chief Election Commissioner.
    (4) Populists and Neoconservatives make following suggestions regarding the Election process, electoral lists:
    (A) All such politicians, voters and officials that conspired to enroll illegal aliens from Bangladesh into Indian electoral lists after 1951, should receive mandatory five year jail imprisonment and fine of Rs. 100,000 per case of illegal aliens, and debarred from holding any political office for the period of five years.
    (B) All illegal aliens from Bangladesh that entered India after January 1, 1951 and their descendants even if born in India, must be removed from all electoral rolls, and deported from India.
    (C) All political organizations that opposed Indian Freedom Movement, or conspired for the partition of India in 1947, and partition of India in 1935, and worked towards secession of Khula from India should be derecognized as political parties in India.
    (D) No person holding a criminal record should have right to vote and contest any elections in India.
    (E) No person holding any Black money more than Rs. 10 lacs or tax evader for more than Rs. 1 lac should be eligible to contest for any political office. All candidates must get a clearance from Tax authorities that their tax payments are current and they do not hold any black money.
    (F) Any act of any government in power using the government officials for furtherance of election campaign must get deterrent punishment.
    (5) People of India should adopt the Indian constitution presented in Kalki Gaur Blog URL

    (38) Article 38: Election Commission of India
    (0)(38B) Article 38B. Election Commission of India
    Superintendence, direction and control of elections to be vested in an election commission
    (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
    (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that the President makes behalf by Parliament.
    (3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
    (4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission.
    (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
    Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
    Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
    (6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission.
    (0)(38C) Article 38C. Single Electoral Roll
    No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex
    There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.
    (0)(38D) Article 38D. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage
    The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.
    (0)(38E) Article 38E. Power of Parliament to make provision with respect to elections to Legislatures
    Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
    (0)(38F) Article 38F. Power of Legislature of a State to make provision with respect to elections to such Legislature
    Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.
    (0)(38G) Article 38G. Bar to interference by courts in electoral matters
    Notwithstanding anything in this Constitution - (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made, shall not be called in question in any court;
    (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
    (0)(38H) Article 38H. Special provision as to elections to Parliament in the case of Prime Minister and Speaker
    © 2006 Author Kalki Gaur, “Populist Constitution of India”
    Email DiplomatKalkiGaur@Yahoo.Com;
    Web Blog


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