Comment

Coming into its own

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THERE is a vast amount of good to say about the Constitution and Indian achievements under it. Regrettably, there is also much to say about Indian sins of omission.

The great achievement is keeping the Constitution alive, maintaining its stature as the lodestar for so many millions of citizens in their search for economic and social justice through the courts and the vote – which is being extended through panchayats. The paucity of improvement in the well-being of the mass of citizens, particularly among the tribals and the lower castes among agriculturists in the countryside, is the ‘great undone’, to borrow Upendra Baxi’s phrase. Here, public figures in government and among the upper castes and intellectuals have defaulted in their responsibility to the mass of their fellow citizens who they, in general, have blissfully ignored. It continues to amaze me that so many Indians speak of India as a great power, globally, when the core of the population is poverty-stricken and denied economic and social justice and meaningful political representation in legislative bodies and executive branches in the states and in New Delhi.

The promises in the Constitution – the Preamble, the Fundamental Rights, and the Directive Principles and, plentifully elsewhere in the text – have found reality with the judiciary rather than in legislatures. Public speech, gossip if you will, focuses on corruption and ethical lapses among politicians, when it is not devoted to the size of an individual’s income.

The question is still asked: Why does the Constitution continue to fail us? The answer: We have ourselves to blame, is seldom heard. That sober critic, Madhu Limaye, warned of this years ago.

I take no comfort in the awareness that American government, politics and economy are in a similarly parlous condition. It seems that human beings construct temples called democracies, but then pay insufficient attention to those who become the clergy.

Yet, temples survive after the clergy has died. And a fresh lot of officials replaces them. The major change comes in the energy of the worshippers in the temple. They are taking the Constitution’s promises seriously. They are organizing themselves in voluntary organizations, led by individuals whose purpose is the defence of citizen’s liberties and rights. In villages, the people have sensed the power that panchyats offer, now and in the future. Women are increasingly active in them, even escaping the patronizing attitudes of their husbands and attempts by sarpanches to dictate outcomes of meetings.

The scent of political influence is a powerful perfume wafting across the country, even affecting tribal areas in western and eastern Maharashtra and Chhattisgarh. Reform comes slowly, however, and for it to arrive citizens and activists must win bitter struggles against big corporations, big money, and politicians – local and central – who are indifferent to citizens’ interests and hungry to line their own pockets. For there to be real change the ‘perfume’ must enter the Lok Sabha and the cabinet in New Delhi.

The character of Centre-State relations has altered greatly since the adoption of the Constitution. The Centre began with the firm belief that ‘it knew best’ and that villagers were incapable of self-governance, and that local and state governments were impossibly inept. Over the years the leopard of New Delhi has changed its spots. The home ministry tempered its dictatorial ways; state governments, especially in the South, the Deccan and Kashmir exerted great pressure on New Delhi to loosen its political reins; the Congress Party – except during Indira Gandhi’s tenure – had diminished influence in the states; and state political parties began to fill these vacuums.

The Constitution came into its own. Its provisions allowed the migration to the states of political influence, and the exercise of initiative for economic development. State and regional political parties appeared in New Delhi in Lok Sabha representation and eventually in national coalition governments. The nation jumped ahead. The Sarkaria Commission, established in 1983, produced the first, exhaustive, authoritative study of Centre-State relations. New Delhi awoke to the reality that Indian unity was a national matter, that maximum participation among citizens and political forces was unifying, not divisive. Exceptions to this rule were manageable, although the manifestations of the moment could be disgraceful, even ugly.

As a result, India has become united politically and more prosperous economically. The constituencies for the Constitution have become firm – the armed forces, the media, the minorities, the state governments, and the political classes, which have found that their interests can best be served through the Constitution.

Democracy’s temple, in the process, occasionally lost chips and statuary while representative government, despite its blemishes, remained sturdy.

Granville Austin

 

The biographer of the Indian constitution

Granville Austin must surely feature in any retrospective of India’s Constitution at sixty. As the Republic’s Boswell, Austin provides us with an authoritative account of its founding. As a chronicler of subsequent constitutional developments, he has taught us a great deal about India’s post-independence rulers, their choices and failures. A charming man with sparkling eyes and a semi-Bernard Shaw-style beard, he insists on being called ‘Red’. His hair, the source of that nickname, has long grown white. Yet, Austin, now an octogenarian living in Washington DC, still remains constructively engaged with India, as his contribution to this issue demonstrates.

Growing up in Vermont, Austin studied American literature at Dartmouth College. He later obtained his doctorate in Indian history from Oxford. Curiously, though, he has never held a fulltime academic position. He describes himself as an ‘independent scholar’, having been a fellow or consultant with entities as diverse as the U.S. State Department and the Rajiv Gandhi Foundation. Austin’s tryst with India began more than fifty years ago. His attempt at archival research was quickly stonewalled by unobliging bureaucrats. So, he wrote to Nehru, who reportedly interceded on his behalf. To immerse himself fully in the project, Austin moved his family to New Delhi in the early 1960s. He travelled across the country interviewing surviving members of the Constituent Assembly, and reviewed thousands of documents, including several unpublished personal papers. He even managed to persuade President Rajendra Prasad to share his ‘most valuable files’ on the Assembly’s deliberations.

In The Indian Constitution: A Cornerstone of a Nation (1966) Austin describes how the Assembly conceived, debated, and adopted the world’s longest national charter. It was, he says, ‘the greatest political venture’ since the adoption of the U.S. Constitution in 1787. The book is a fascinating narrative skillfully weaving together debates in the Assembly’s plenary sessions with committee deliberations and other behind-the-scenes confabulations. Austin’s reconstruction of events is so compelling that it is difficult to imagine that he wasn’t himself present at the scene.

Cornerstone received glowing reviews from the very beginning, although one British reviewer accused Austin of a ‘silly petty anti-British animus.’ Perhaps the greatest praise for Austin, mixed with critical insights, came from Upendra Baxi, then a junior law professor. In an extraordinary review of over 150 pages, Baxi declared that as the most definitive study of Indian constitution making, Cornerstone had displaced all existing ‘pseudo-literature’ on the subject.1 

Austin credits an ‘oligarchy’ comprising Nehru, Patel, Prasad and Azad for the Assembly’s success in finalizing the Constitution. As ‘heroes of the freedom movement’, the oligarchs commanded great political capital and shrewdly enlisted several non-Congressmen like B.R. Ambedkar and K.M. Munshi to expand the Assembly’s representative character. In an appendix to Cornerstone, Austin provides a list of the Assembly’s leading lights. With exceptions like Ambedkar and Azad, they were mostly upper-caste Hindu lawyers. But there are some major omissions too, like Jerome D’Souza, the Jesuit who played a key role in the discussions on religious freedom and minority rights. And the list includes only one woman, Durgabai Deshmukh, a prominent social activist. Although Cornerstone acknowledges the contributions of Deshmukh and other women members (there were nine in all), it has not stopped scholars and commentators from continuing to freely use that patently erroneous term ‘founding fathers’.

Unlike the American constitutional debates, Austin asserts, the Assembly’s proceedings revealed no ‘deep seated conflicts of interest.’ But, as Austin himself acknowledges, language was a particularly divisive issue. Much to the irritation of members from the South, the ‘Hindi wallahs’ insisted that their mother tongue, to the exclusion of all others, become India’s official language. This resulted in what I believe was a very significant constitutional ‘birth defect’. Cornerstone does not critically analyze the Assembly’s social composition or its pathologies, including its patriarchal impulses and class prejudices. It would be unfair to expect Austin to have undertaken such an inquiry at a time when it was far from the mainstream in political historiography to do so. Yet, this task is now an urgent and pressing one. Although our founders were probably our ‘greatest generation’, it is, nonetheless, important to acknowledge their shortcomings and examine the long-term impact of their biases.

Cornerstone’s most controversial and pregnant sentence is that the ‘Indian Constitution is first and foremost a social document.’ The Constitution, Austin emphasizes, embodies the Assembly’s desire for a social and economic revolution through the Directive Principles of State Policy. Austin does not comment on the wisdom of this unorthodox approach. Revolutions, even when peaceful, are typically messy affairs. By contrast, constitutions are primarily concerned with establishing political stability and legal order. What were the founders thinking when they placed radical economic and social reform objectives alongside sweeping protections for individual and group rights? Did they not foresee the potential for constitutional gridlock by making the Directive Principles ‘fundamental’ in governance, even while insisting that all state action must remain consistent with the Fundamental Rights?

Austin points out that by adopting parliamentary democracy, the Assembly voted to retain a system that was both familiar and progressive. In so doing, he believes that it wisely and decisively rejected Gandhian ideas for village-based government. It is true that Cornerstone went to press during the high era of Nehruvian parliamentarianism. Still, one wishes that he had speculated how India might have fared under a different system. Furthermore, as Baxi points out, it may be that the so-called Gandhian proposals were principally concerned with securing greater decentralization in decision-making, rather than with offering an alternative blueprint for a panchayat republic.

Cornerstone is studded with elegant turns of phrase: ‘Fundamental Rights were to be framed among the carnage of fundamental wrongs.’ ‘Nehru, speaking thoughtfully, rambled typically to the heart of the matter.’ ‘If the beacon of the judiciary was to remain bright, the courts must be above reproach.’

This contributed to its runaway success, especially with the legal profession. Barely a few months after Cornerstone hit the bookshelves, the Supreme Court referred to it in its 1967 watershed decision, Golak Nath. In 1973, Cornerstone was repeatedly cited before the thirteen-judge Kesavananda Bharati bench, which reconsidered, and then overruled, Golak Nath. Austin was so persuasive that twelve judges mentioned Cornerstone in their opinions. The Court also relied on Austin in three other leading cases: Indira Gandhi (the prime minister’s election appeal); Rajasthan (validity of president’s rule in Congress-led states) and Menaka Gandhi (the scope of the Constitution’s life and liberty protections).

A divided Supreme Court relied on Austin when examining key provisions of the Forty Second Amendment in the 1980 Minerva Mills Case. Sprinkling its opinion with Cornerstone quotes, the majority struck down the amendment for disturbing the constitutional harmony between Fundamental Rights and Directive Principles. Dissenting, Justice Bhagwati also used Cornerstone to reach a different conclusion. He chose to uphold the amendment, expressly citing Austin’s thesis holding the Constitution as a social document. This provoked a sharp rebuke from H.M. Seervai, the eminence grise of Indian constitutional law. Seervai complained that Bhagwati had overlooked Cornerstone’s disclaimer that it was a political history rather than a legal treatise. Notwithstanding Seervai’s admonition, Cornerstone continued to embellish the court’s opinions: Bhim Singhji (endorsing the book’s ‘revealing’ summary of the Assembly debates on property and compensation), S.P. Gupta (Austin’s views on judicial independence), and Ashoka Kumar Thakur (Cornerstone on separate electorates). Its quotations have also been included in dozens of High Court decisions, including the historic 2009 Naz Foundation case.

Austin wrote a magisterial sequel to Cornerstone in 1999. Working A Democratic Constitution: The Indian Experience was published just as the NDA government appointed a so-called constitutional review commission. In it, Austin describes the Constitution’s ‘working life’ from its inauguration until Indira Gandhi’s assassination. The book is filled with many interesting nuggets ferreted out from dusty files and livened with vignettes from a large number of personal interviews with politicians, lawyers and judges.

India’s constitutional life is as vast and sprawling as its excessively long constitutional text. Consequently, Austin has to, and does, cover several diverse subjects: federalism, free speech, preventive detention, the Emergency, elections, and the role of governors. Yet he maintains a firm grip on his subject matter, supported by forensic research and extensive reading. Unfortunately, because the book stops at 1984, Austin is not able to address Ayodhya, secularism, and reservations, issues that dominated the national discourse when his book was released.

Democratic Constitution’s analytical framework is based on the so-called ‘seamless web’ of unity, democracy, and social reform. India’s founders and its subsequent rulers, Austin argues, understood that social revolution could not be pursued without democracy, but also that democracy would be meaningless in the former’s absence. Similarly, without national unity, neither social reform nor democracy would be feasible. Attractive as this metaphor might seem, it is difficult to imagine that it was the underlying operational basis for Indian constitutional politics.

Austin furnishes a detailed account of the contests between the courts and the legislature over constitutional freedoms. (He covers, among things, the Crossroads case involving this journal’s founders). Nehru was frustrated by judges who resisted his redistributionist socio-economic agenda. But rather than tampering with the judiciary’s independence, Nehru piloted constitutional amendments to overcome adverse verdicts. Abandoning her father’s reticence, Indira Gandhi directly targeted the courts. Yet, as Austin approvingly recounts, despite Indira Gandhi’s repeated attempts to create a ‘committed judiciary’ and restrict judicial powers, the Supreme Court erected the ‘basic structure’ firewall to protect the Constitution from partisan abuse.

Reviving his role as Austin’s chief admirer and critic, Baxi produced a shorter but far more scathing review of Democratic Constitution.2 Noting Austin’s canonization by bar and bench, he set out to unpack the ‘Gospel according to St Granville.’ Baxi praises the book for seeking to restore constitutional practice to the centre of Indian development, but criticizes it for ignoring state-building in India and subaltern and Dalit perspectives.

Baxi accuses Austin of diminishing the Emergency’s trauma by suggesting that ‘New Delhi in 1976 was not Berlin under Hitler.’ In fact, Austin’s principal motivation for writing Democratic Constitution was his deep concern that the Emergency had desecrated the Assembly’s shining legacy. He does India a great national service by investigating and revealing the identities of those who carried out the Emergency’s greatest act of vandalism, the Forty-Second Amendment. It is with obvious relief that Austin describes how a post-Emergency Parliament and Supreme Court helped neutralize the amendment’s most pernicious provisions.

In Cornerstone, Austin laments the difficulties of pursuing historical and legal research in India. Sadly, more than four decades later, those difficulties remain. In a remarkable bibliographic coda, Austin painstakingly describes the unpublished materials that he utilized, and generously supplies leads for future researchers. Some of these materials are now freely accessible through Shiva Rao’s Framing of India’s Constitution and the edited papers of Prasad, Nehru, Patel, and Munshi. More rich and inviting information is available in the Transfer of Power and the Towards Freedom volumes. Taken together, all this data could occupy a lifetime of profitable research for an Indian Gordon Wood or Joseph Ellis. Yet it is an abiding mystery why few, if any, authors or researchers have followed Austin in studying India’s constitutional past and its relationship with the present.

Vikram Raghavan

 

* I am deeply grateful to Ramachandra Guha, Tarunabh Khaitan, Sunil Khilnani, Arun Thiruvengadam and Benjamin Yong, for their comments on an earlier draft. I write this article in my personal capacity, and my opinion should not be attributed to my employer, the World Bank.

 

Footnotes:

1. Upendra Baxi, ‘The Little Done, The Vast Undone: Reflection on Reading Granville Austin’s The Indian Constitution’, Journal of the Indian Law Institute 9, 1967, p. 323.

2. Upendra Baxi, ‘Saint Granville’s Gospel: Reflections’ (review of Granville Austin’s, Working a Democratic Constitution: The Indian Experience), Economic and Political Weekly 36(11), 17 March 2001, pp. 921-30.

 

Kashmir conundrum – year 63

2010 marked the third continuous summer of passionate, resolute and unarmed protests in Kashmir. Each round of resistance – defined by huge numbers of its citizens pouring out onto the streets in protest – was cemented by acts that betrayed a common attitudinal thread: that of taking the Kashmiris for granted. In 2008, it was the accusation of a land-grab that challenged the special land-rights prevalent in Jammu & Kashmir. In 2009, it was the murder and alleged rape of two young women, Asiya and Nilofer of Tukroo in Shopian. (The conclusion of investigations on the deaths is still awaited.) In 2010, the protests were sparked off by the killing, on 11 June, of 17-year-old innocent bystander, Tufail Ahmad of Srinagar by paramilitary action. The response of the security forces since then has resulted, so far, in 110 innocent civilian deaths and a full-blown crisis. Delhi took almost four months to respond to the crisis and, when it did, unveiled an eight-point ‘package’ which barely addressed the problem in Kashmir (the symptom) while yet again ignoring the problem of Kashmir (the cause).

The Jammu and Kashmir dispute is sixty-three years old this October. It has seen the peoples of the state geographically divided, culturally fragmented, economically confounded and politically sequestered. It has retarded the ability of both India and Pakistan, and arguably the whole of South Asia, to play any significant role in the emerging world order. What are the causes of this near-intractability and how ought we to reference it? In response to these questions, there is a need to confront the dispute without sweeping its complexities under the carpet. This essay suggests some immediate steps in the journey to a lasting, practicable and just resolution.

Not least among these suggestions is a more neutral use of terminology in the discourse on the subject, because one symptom of suppression is a loss of name. Since the 1 January 1949 ceasefire, the peoples of the erstwhile princely state have been forced to qualify their citizenship by referring to themselves as citizens of ‘Azad Jammu and Kashmir’ in Pakistan and ‘Jammu and Kashmir State’ in India. In politically partisan parlance, the term Indian or Pakistan ‘Occupied Kashmir’ is also deployed. Another tag with some currency is the short-hand ‘Kashmir’ (in this essay it is used to signify only the valley of Kashmir) deployed to denote the entire former state. But this usage tends to attenuate the problem to the Valley, which is lazy opportunism at best. At any rate, all these terms prejudice the actual political status of the peoples of the region.

In this context, the following template of nomenclature may prove more neutral: ‘State of Jammu and Kashmir’, to denote the historical territory of the state in its entirety consisting of Kashmir (including Muzaffarabad), Jammu (including Mirpur), Ladakh, Baltistan and Gilgit. The 1972 Simla Agreement is a pact tacitly precluding any active participation of the peoples of the state on both sides of the Line of Control (LoC). So the terminology spawned by it, ‘Pakistan Occupied Kashmir’ and ‘Indian Occupied Kashmir’ ought to be amended to reflect merely the two spheres of influence over this region and the forced divide of the peoples of the state between them. Thus, for instance, we may use LoC West to denote the J&K territories in Pakistan and LoC East to denote the J&K territories in India.

There are many dimensions to the Jammu and Kashmir dispute; historical, legal and political. A key obstacle in the discourse on the Kashmir conundrum, reflected in part by the confused partisan terminology just discussed, has been a lack of agreement on a definition of the legal and political dimensions the problem. Speaking politically: India, unrealistically, denies that there is a dispute; Pakistan, anachronistically, hankers after the state to prove the efficacy of the two-nation theory; and within the state of Jammu and Kashmir, a not insignificant portion of the resistance has unwittingly allowed its political cause to be gradually and insidiously usurped by a pan-Islamism that not only produces red-herrings but does more damage to Islam than all the combined bigotry of post-colonial politics.1 In the meantime, the peoples of the state on both sides of the divide brought about by the war between India and Pakistan in 1948-49 continue to remain in limbo.

Legally and constitutionally, Pakistan defines the problem as the ‘unfinished business of partition’ and so uses the term ‘Azad Jammu and Kashmir’ for LoC West (somewhat disingenuously excluding Gilgit – Baltistan from the argument) theoretically stating that it is ‘Azad’ or ‘free’ from Pakistan per se. India refers to LoC East as ‘Jammu and Kashmir State’ reflecting its position that the question of accession is ‘closed’, the only ‘unfinished’ part being the retrieval of LoC West. India’s interpretation of the relationship of the [former princely] state of Jammu and Kashmir in relation to the Union of India is thus more nuanced. It argues that whereas the other princely states of undivided sub-continent acceded to and merged with the Republic of India and adopted its constitution, Jammu and Kashmir State did not do so and so its relationship with the Union is different from that of the other states.2

The diplomatic lore of the discourse between India and Pakistan on J&K tells how, prior to the 1989 insurgency, the officials of the two countries, even as they postured belligerently in public, scoffed at their own countries’ positions during cocktail parties and, in a patronizing stance, referred to the Kashmir dispute as a ‘simple’ one, easily solved provided their respective governments got down to it. To cite just one example, even as early as the 1960s there was a flurry of backroom activity which, however, came to nought.3 

The reason for this and many other failed attempts is that the problem, of course, is not simple. A lack of understanding of its historical idiosyncrasies, legal ambiguities and political denials have marred the lives of millions of J&K’s citizens over the last six decades and more. Despite admonishments not to ‘drag history’ into political disputes originating from the colonial experience and to look to the future – admonishments, significantly, from past colonial powers – history and law are best held up as candles rather than snuffed out by tactical opportunism. Otherwise, solutions so determined will continue to haunt us and generations to follow. Complexities must be confronted and then unknotted in the light of present-day realities; denying them is to risk still-born solutions.

The first complexity that must be taken into consideration is that J&K is a state that was created at an historical cusp at which traditional monarchy, colonial realpolitik and an autochthonous instinct for survival converged to give birth to a sovereign state between 1835 and 1846 in response to imperial expansion. Like the other states along the pan-Himalayan massif, Jammu & Kashmir was also alternately, an ally, an irritant and an adversary of British interests. After independence, India and Pakistan both inherited this ambivalent relationship to J&K.4 Unique in the case of J&K was that it became an enviable entity and very quickly a critical player in the Great Game of the 19th century because of its contiguity with Central Asia. Today too this contiguity, due to the large reserves of gas and oil in Central Asia and the relatively weak post-Cold War states of the region, highlights the urgency of resolving the J&K dispute.

Culturally, the creation of the state has accentuated the serendipitous convergence of Hindu, Buddhist and Muslim civilizations within its borders. This has resulted in multiple identity contestations in which all the three parties involved – the state’s constituent parts, India and Pakistan – have a valid and vested stake. The seeming desire of the United States, in its own interest, to assign India a larger role in the quickly hardening Pakistan and Afghanistan ‘quagmire’ is yet another indication of the political significance of J&K. It is these geographical, cultural and political realities that have made J&K a difficult bone of contention.

Another complexity that asserts itself is the legal one having to do with the peculiar circumstances of the end of British rule in South Asia. The colonial power structure was as elaborate as it was deep-rooted in its use of modern and traditional political institutions to consolidate British rule. Its exit from the subcontinent left behind a trail of legal issues in the former princely states, all of which were addressed conclusively in 1947 or soon thereafter, with the exception of the State of Jammu and Kashmir. To ignore these legal ambiguities, or explain them away through political opportunism, is to further complicate the problem; witness the 1972 Simla Agreement which attempts to transform the dispute into a bilateral one and the 1975 Accord which presumed to resolve it unilaterally. The convulsions of the last twenty years urge us to learn the lessons of good law.

In the regional political arena, which is the third complexity that informs this vexed conundrum, it has to be acknowledged that the peoples of J&K, under the cover of its status of uncertainty, have been deprived of their political rights in their fullness in all five constituent parts – Gilgit, Baltistan, Ladakh, Kashmir and Jammu – over the last six decades. Delhi and Islamabad took these steps to bolster their own positions, to the detriment of the inhabitants of J&K, following the Simla Agreement. And if carefully examined, the real problem today is that of all five regions, in one form or another, demanding these political rights – and thereby civic amenities, economic benefits and a predictable vision for their futures – be restored to them legally and transparently. Both India and Pakistan, during the last six decades, have qualified these rights in drawing their arguments from territorial acquisitiveness. Pakistan has done this by perpetrating wars and a proxy insurgency,5 and India through bracketed elections and proxy governance.

All these political deceptions too will have to be confronted. Matters have reached a head. The status quo ante is no longer acceptable in 2010. Concurrently, the politics of manipulation, denial and non-J&K centric (or exclusively Delhi-Islamabad centric) responses also do not work. The parties to the dispute must begin a dialogue that will be substantive, uninterrupted and have the future of all the peoples of J&K at its core.

What then are the minimum terms of reference for any solution-oriented discourse on Jammu and Kashmir? The first of these is that any discussion must take into account Jammu and Kashmir in its entirety. This stipulation of considering all of the state is often interpreted to be the romanticized euphemism of ‘independentists’6 in support of their agenda. Nevertheless, it is a demand necessitated by historical and legal realities. Unless the whole of the state is discussed, neither India nor Pakistan can justify the limbo, and its attendant misery, that has been forced on the peoples of the state’s constituent parts for the last six decades. It is this that gives the political definition of the conundrum its locus standi.

Should the terms of reference be conceded on ethno-cultural grounds, its legal resolution would have to be based on a pre-1840 premise, by which time Baltistan and Ladakh had come within the ambit of South Asia through the Dogra military invasion, followed by Kashmir a little over a half a decade later through an Anglo-Dogra mercantile conquest. So it cannot be emphasized enough that the whole of the state must be put on the table for discussion if there is to be a comprehensive resolution.

Clearly, the journey towards the resolution of the J&K problem is a long one. Despite the temptation to leapfrog over thorny issues, it is imperative that it not be rushed. This too is an important term of reference: take it slow. All long journeys begin with a single step. Today there are reasons to quickly shift the status quo by side-stepping complexities. The United States may be looking for a proxy partner, in India, to clean up its Pakistan-Afghanistan mess. India’s salience on the world-stage has increased significantly enough to make its permanent membership in the United Nations Security Council a realistic goal. And Pakistan sees the law of diminishing returns asserting itself in the propaganda war against India that drives its Kashmir policy.

All these global actors, it appears, would prefer a quick decision. Meanwhile, in an intra-state context, the peoples of Jammu and Kashmir stand fragmented and alienated. Add to this the geographical location of Jammu and Kashmir in relation to a fermenting Central Asia and an ambiguously evolving South Asia. It is clear that the peoples of J&K cannot afford an instant decision about their future. They will understand that the decision cannot be made solely in the interests of competing powers but must be an organic resolution that takes the present-day realities into account. And resolutions take time.

If an important point of reference for dialogue on J&K is not to rush into sudden decisions about its future, the lesson of the last three summers is that it is time to take it head on; and, critically, that the problem will not go away.

Soon after he was sworn in as chief minister, Omar Abdullah called for a start to the dialogue on the resolution of the political dispute of Jammu and Kashmir, an unusual step for a sitting chief minister. But he went on during a speech in the October 2010 session of the state Legislative Assembly by stating, accurately, that while J&K had acceded to India, it had not merged with it. It was a statement implying the classic definition of the radically federal status of the state in relation to Delhi: namely, an association defined by its voluntary surrender of sovereignty in only three areas of activity: foreign affairs, defence and communications.7

New Delhi responded to the three-summer crisis with an eight-point ‘package’, which was met with scepticism in Kashmir, even as its political factions clung to one clause in this package with some hope: that of the appointment of a group of ‘interlocutors’ between them and Delhi. However, the absence of any politician in the group of interlocutors, seen as a necessity if the dialogue is to be serious, soon turned the mood cynical. Meanwhile Pakistan, which could have made constructive suggestions, has reacted with little more than canned calls for resolution and jingoistic rebuttals of India.

Be that as it may, there is no alternative but to begin talks. Both Delhi and Islamabad must accept that the statements of the heads of government on the two sides of the LoC reflect the mood of the people. In the two statements, the status quo powers must see an opportunity to make a beginning. The first step will have to be taken between Delhi and Srinagar, the epicentre of this near-intractable dispute, even if it be with the announced interlocutors and with scepticism as a hand-maiden. This must be closely followed by the inclusion of Islamabad in the dialogue.

Four specifications must inform this initial dialogue. First, the talks must begin unconditionally. Pre-conditions are often an indication of a pre-conceived end-game. Delhi’s discernable end-game has been a legalistic reference to accession. Islamabad has invoked the emotive topic of religious identity. Meanwhile the ethnic, cultural, linguistic and religious diversity of J&K, not to speak of the manipulation of these entities, has resulted in its voices being a virtual Babel of opinion. Dialogue with any pre-conditions is to ensure that it does not begin.

Next, the talks must address the political dispute and not be subsumed by the economic and social symptoms of its non-resolution. In the last year, Delhi has arguably been at its most active in addressing the Delhi – Srinagar axis of the problem. However, this has been neutralized by a basic assumption that the problem can be resolved by ‘packages’, be it economic, social or even political. A dialogic interface assumes a negotiated settlement. A package implies a one-sided appeasement that could range from funding for development to gift to bribe. Jammu and Kashmir’s various parts have been recipients of endless ‘packages’, be they from Delhi or from Islamabad.

The talks, thirdly, must be transparent but without prejudice to reasonable confidentiality. In the past, the lack of transparency has resulted in back-room deals that presented the peoples of J&K with a fait accompli. It did not work with the Simla Agreement of 1972, the Beg-Parthasarathy Accord of 1975 or the Agra Summit of 2001. It has even less of a chance of working today’s atmosphere of acute distrust and when the peoples of J&K are arguably amongst the most politically conscious in all of South Asia. Confidentiality will need to be tempered by an incremental inclusion of all the peoples of the state in its entirety being informed about the structure, the basic assumptions and the arguments being proffered in any dialogue.

Finally, the dialogue must quickly include representation of and from the other constituent parts of J&K: Gilgit, Baltistan, Ladakh and Jammu. Over the decades, Delhi and Islamabad have steadily colluded to isolate the problem to take into account their interests and to Kashmir, the Valley. And the latter being the most coveted, albeit territorially the smallest part of J&K, has unwittingly allowed itself to be boxed in and contained. This has resulted in a truncated view of the problem and, if solved on that premise, will result in a truncated solution. To allow this to play itself out would be to ghettoise Kashmir. This is dangerous because it permits an ethno-religious interpretation of the dispute, which it is not. Moreover, it has allowed entry to puritanical, literalist, radical and alien interpretations of Islam into a region sensitive not just in the context of India and Pakistan but also in the Central and South Asian milieu.

Siddiq Wahid

 

Footnotes:

1. One such, for example, is for the disaggregation of the former princely state based on the arguments of the religious right in India, Pakistan and the State of Jammu and Kashmir.

2. See A.S. Anand, Development of the Constitution of Jammu and Kashmir, 1980, New Delhi, p. 172

3. Cf. Lars Blinkenberg, India – Pakistan: The History of Unsolved Conflicts, (2 Vols.), 1998, Odense University Press, Denmark, Vol. I, pp. 186-198

4. A doctoral dissertation treatment of the Himalayan states after the decolonization of South Asia would make a valuable contribution to the study of South Asian politics. Whereas the British Empire discussed this in an energetic debate between proponents of a ‘forward policy’ and the opposite of it to secure its empire, both India and Pakistan appear to have ignored the importance of this natural ‘security’ wall to place before the world a de-stabilized subcontinent. (See below)

5. This must be accepted, albeit without prejudice to the by now well-accepted fact that the 1989 insurgency was indigenously inspired in Kashmir as an immediate and spontaneous reaction to rigging in the 1987 LoC East elections, with Pakistan rushing in to ‘fish in trouble waters’, adding yet another dimension – aggravated violence and cross-border small arms proliferation – to the problem of J&K. For a comprehensive scholarly treatment of this phase in the history of J&K, see Sumantra Bose, Kashmir: Roots of Conflict, Paths to Peace. Harvard University Press, Cambridge, MA, 2003.

6. The discourse on the status of the state has become acutely factionalized in its six-decade history, especially in Kashmir but also in Gilgit-Baltistan and the Mirpur-Muzaffarabad stretch in LoC West. For a good summary of the various factions and their genesis, especially in Kashmir, see Sumantra Bose, op cit., as also his Contested Lands. Harvard University Press, Cambridge, MA, 2007, pp. 154-203.

7. It is precisely Article 370 of the Indian Constitution that defines this mechanism which makes a distinction between ‘acceding’ to India and ‘merging’ with it. Incidentally, Abdullah’s counterpart, the prime minister of ‘Azad Jammu Kashmir’, had made a similar statement a few months earlier, implying that his constituency had options other than accession to Pakistan available to it. He quickly became a ‘former’ prime minister.

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