Jammu & Kashmir: ‘Special Status’ must end
by Hari Om on 19 Nov 2009 6 Comments

The Ministry of External Affairs (MEA) has done well to take on the aggressive, canny and expansionist China and declare that stapled visas issues by China are not valid for travel from India. The MEA took this decision following reports that the Chinese Embassy in New Delhi as well as Chinese Consulates in Mumbai and Kolkata had been issuing visas on a separate piece of paper stapled to the passport, rather than pasted as is the universally-followed norm.


What really provoked the MEA to take on China was its move to tell the international community that Jammu & Kashmir is a disputed state and hence, it is incumbent upon the Chinese Foreign Office to treat differently “certain categories of Indian nationals (read Kashmiri-speaking Sunnis) on the basis of their domicile, ethnicity and/or place of issue of the passport.”


It may be recalled that some Kashmiri students and businessmen were given visas by the Chinese Embassy on a separate piece of paper, stapled to the passport. The matter came to the notice of Indian Immigration authorities, and as a result they did not permit these Kashmiris to visit China – a development denounced by the Kashmiri Muslim leadership and Kashmiri vested interests, including Valley-based media persons and commentators, in explicit language. The reason: they saw this development as a defeat of what they stand for (separation from India on the ground that they are Muslims).


It is noteworthy that the Chinese Embassy in New Delhi and Consulates in Mumbai and Kolkata had been treating Kashmiri Muslims and the people of Arunachal Pradesh differently for several months. That Immigration officials did not take cognizance of Chinese evil designs all these months raises many questions.


The most pertinent question is: Should we take the serious lapse on the part of Immigration authorities to mean that certain elements in South Block did not allow the concerned officials to take cognizance of the anti-India drama being enacted by the Chinese authorities, or that they did not allow them to do anything that could displease the Kashmiri separatists? It is indeed very difficult to overrule the complicity of South Block.   


Anyway, what exactly did MEA say on November 12 while rejecting outright China’s highly ill-conceived and ill-motivated practice? It said: “All Indian citizens intending to travel to the People’s Republic of China are advised that before making any travel arrangements they should first ascertain from the Chinese Embassy or Consulate, as the case may be, whether the visa being issued to them will be affixed to the passport or will be in the nature of a stapled paper visa, so that they are not inconvenienced or put to any financial loss later on this count… It is our considered view and position that there should be no discrimination against visa applicants of Indian nationality on the grounds of domicile or ethnicity.” 


Though belated, it was a welcome step. This decision might have been be construed by the Chinese authorities as well as Kashmiri separatists and their supporters in Delhi and elsewhere as a slap on their ugly faces. The unequivocal stand of the MEA was undoubtedly a great setback for Kashmiri separatists as well as China, which has been consistently violating the MacMohan Line and questioning the status of Jammu & Kashmir and Arunachal Pradesh as parts of the Indian State.


However, what the MEA has done to counter the pernicious move of the Chinese Government is just not enough. The MEA, the Prime Minister’s Office (PMO) and the Union Home Ministry need to take several other steps to make it loud and clear that Jammu & Kashmir shall remain an integral part of India and that the Instrument of Accession signed by the Maharaja of the State was similar to the one signed by other princely states. They must tell the international community that Kashmiri Muslims are not a race apart and that they do not deserve a treatment different from other Indians.


The Prime Minister should stop thinking in terms of a “non-territorial solution” to the so-called Kashmir problem. This is not a solution to the Kashmir problem, which is patently sectarian in nature, character and implications. It is a formulation that has the potential to undo all that we hold dear. “Non-territorial solution” simply means an ideological compromise, a negation of what we call liberal values, democracy and all-inclusive ideology. Even a naïve would agree that the implementation of a “non-territorial solution” would simply help the religious bigots in Kashmir and their mentor Pakistan to achieve what they could not during all these 62 years of independence despite four full-fledged wars.


UN Resolution on Kashmir


The MEA must launch forthwith a no-holds-barred campaign to educate the international community about the nature and implications of the UN resolutions on Kashmir. It must inform the international community that the UN resolution on Kashmir directed Pakistan to vacate its aggression and withdraw all its troops, regular or otherwise, from the illegally-occupied areas and recognized the right of India to send its troops there to maintain law and order, thus recognizing explicitly Indian sovereignty over Jammu & Kashmir.


MEA must tell the world that the only issue which still remains to be resolved between India and Pakistan is the political future of Pakistan-occupied-Kashmir and Gilgit-Baltistan. Last, but not the least, it must not allow any Kashmiri separatist to visit any foreign country. This is all the more necessary because Kashmiri separatists visit foreign countries only to tarnish India’s image, paint the Indian nation black, and preach secessionism. Such a course has become even more imperative in view of the recent statement of All-Party Hurriyat Conference chairman Mirwaiz Umar Farooq that he would apply for a new passport and write in the application form that “he is a State subject” and not an Indian national. 


Similarly, the Union Home Ministry must stop toying with the idea of a “unique solution” to the so-called Kashmir problem. To be precise, it should stop talking in terms of “unique history” and “unique geography of Jammu & Kashmir” and “quiet talks” and “quiet diplomacy”.


Further, it must integrate Jammu & Kashmir fully into India by scrapping the State Constitution which has not only enabled the separatist and obstinate Kashmiri ruling elite to establish their stranglehold over Jammu and Ladakh and created all sorts of problems for the Indian nation in this strategic part of the country, but has also created an impression the world over that Jammu & Kashmir is not an integral part of India to the same extent as other states of the Union.


Art 370 and State Constitution 


It is this Constitution which has led the international community to believe that Kashmiri Muslims are a race apart. Why should the solitary State of Jammu & Kashmir receive differential treatment? Why should it be allowed to have a separate constitution and separate flag and why should it be allowed to exercise residuary powers?


Some people seek to complicate matters by saying that no one can tinker with the State Constitution because it is the by-product of Article 370 of the Indian Constitution. One cannot endorse this viewpoint. Article 370 is part of the Indian Constitution, which can be amended by Parliament anytime. But more than that, Article 370 gives absolute and unbridled executive powers to the Union President as far as Jammu & Kashmir is concerned.


The Union President cannot only keep the State under his/her direct control for any number of years without referring the issue to Parliament, but also extend any number of Central laws to Jammu & Kashmir anytime. Take for example, the direct rule of the President and his representative in Jammu & Kashmir, the Governor, from January 19, 1990 to October 9, 1996.


Thus, Jammu & Kashmir remained under President’s Rule for more than 6 years and 8 months! Did Parliament amend the Indian Constitution even once during this period as far as the State of Jammu & Kashmir was concerned? No. It did not amend the constitution even once because Article 356 (under which the Union Government has the power to dismiss any State Government and impose President’s rule on the ground of breakdown of the constitutional machinery) was (and is) not applicable to Jammu & Kashmir.


It may appear unbelievable, but it is a fact. It is also a fact that in the case of Punjab, which remained under President’s Rule from 1987 to 1992, Parliament had to take the entire nation (read both Houses of Parliament) along before amending the Constitution. It was amended at least four times.


That the President of India enjoys absolute executive powers, particularly as far as Jammu & Kashmir is concerned, can be seen from that fact that between 1954 and 1986, the President issued as many as 42 Constitution (Application to J&K) orders in order to integrate the State with New Delhi. Among the changes brought about, the most notable were the ones which (1) restricted the powers of the State legislature, (2) extended to the State the powers of the Union Parliament, (3) applied to the State financial provisions of the Indian Constitution, (4) brought the State under the Emergency provisions, (5) disbanded the State Election Commission and empowered the Election Commission of India to organize elections to the Jammu & Kashmir legislature, and (6) brought the State under the ambit of the All India Services. 


It is, however, true that successive governments at the Centre during this period were behind everything that the President did with respect to Jammu & Kashmir. It is also true that the persons at the helm of affairs then had the required will and the necessary ability and capability to take steps aimed at strengthening constitutional ties between New Delhi and Srinagar. They acted in a required fashion, snubbed and reined in everyone in the State who posed a challenge to national unity and integrity or who appeared working against the paramount national interests.


Five examples are: Dismissal of Sheikh Abdullah’s government in 1953 and 1977, dismissal of Farooq Abdullah’s government in 1984, dismissal of the G M Shah’s government in 1986 and imposition of President’s Rule in January 1990 and again in October 1996.


All this should establish that the President of India, on behalf of the Union Government, can if so desired, bridge the constitutional gulf between New Delhi and the State through normal legislative procedure and through executive order, if necessary. Article 370, which is temporary, is part of the Union Constitution. It can be repealed by the Indian Parliament anytime. The President, in consultation with the Union Cabinet (read Prime Minister), can also exercise executive powers and issue a Constitution (Application to J&K) Order doing away with the State Constitution.


These approaches, though different, mean the same thing: Full merger of the State into India and the end of an era known for politics of separatism, based on religious fanaticism. What is required is clarity, vision and the will to act.


It is time for the PMO, the MEA and the Union Home Ministry to work in tandem and take some of the steps enumerated in this essay. Such an approach alone can help defeat the evil designs of Beijing, Islamabad and Kashmiri separatists. Piece-meal, half-hearted and knee-jerk reactions will not do.                    


The author is Chair Professor, Gulab Singh Chair, Jammu University, Jammu 

User Comments Post a Comment
Comments are free. However, comments that include profanity or personal attacks or other inappropriate material will be removed from the site. Readers may report abuse at  editorvijayvaani@gmail.com
Post a Comment

Back to Top