The regime has had a bad beginning. Its ending will be worse.
A careful analysis of the terms of the sordid deal which PDP struck with the BJP shows that it puts the seal of endorsement on the 47 Presidential Orders made under Article 370, eroding the autonomy of Jammu & Kashmir.
Not surprisingly Ram Madhav, the RSS pracharak, whom it sent to the BJP to be its General Secretary and the prime mover in the affair, uttered a triumphant cry the very day the document was published, 1 March 2015, as “the second and de facto accession of the State” to India. This was no hyperbole.
No wonder the Minimum Common Programme (MCP) was kept secret till the Ministers were sworn in, contrary to the practice of publication in advance. It is a betrayal of the people’s trust and their mandate to the PDP of monstrous proportions.
But the people are not without recourse to redress the wrong. As will be pointed out, they have a perfectly constitutional remedy to oust from power a regime which grabbed power by deliberate, systematic and continuous practice of deceit before, and especially after the results were declared on 24 December 2014. The regime has had a bad beginning. Its ending will be worse.
The BJP has lost no time to reveal its true self. It is the norm for new governments to order release of political prisoners who do not face criminal charges.
Masarat Alam did not. His release, ordered by court, was foiled by repeated detentions under the Public Safety Act by a vindictive Omar Abdullah.
The order of release by the Chief Minister was an administrative act. No Cabinet decision was required. None is expected in such cases at the Centre or in the State. The rules of Cabinet system are the same for both. Even Defence Minister George Fernandes was not taken into confidence by PM Vajpayee on the nuclear test in 1998.
Attlee decided to build the atomic bomb without consulting the Cabinet. No MCP can cover everything. As CM Mufti acted justly and fairly. How long can such an alliance last.
The bargain won the Mufti the post of Chief Minister. But what did it secure for the people of Kashmir who voted enthusiastically in large number to give him a double mandate – fight for “restoration” of Kashmir’s autonomy as solemnly promised in the PDP’s manifesto and also fight back the threat posed by the BJP (Mission 44 plus) to win power in the State. That, in order to fulfil its aim of wiping out the remnants of Kashmir’s autonomy as well as its unique and rich secular ethos which Kashmir developed over the centuries.
The Minimum Common Programme (MCP), (miscalled, of late, as the Common Minimum Programme) does not provide even a fig leaf to cover the obscene nudity of the foul act. It exposes it. Ever since coalitions were formed, after the Congress debacle in the northern States in 1967, MCPs became the norm for those Samyukta Vidhayak Dals or United Front coalitions.
They were replicated at the centre in 1989 for the National Front, in 1998 for the BJP-led National Democratic Alliance and in 2004 for the United Progressive Alliance.
They contained agreed, precisely worded pledges on what the coalition would accomplish. In 1989 the BJP gave outside support to V. P. Singh’s NF stating its reservations on Art. 370, the Babri Masjid and a Uniform Civil Code.
In each case, the MCP was published before the leaders of the coalition were sworn in. Unprecedentedly, but very significantly, the BJP-PDP alliance kept the document secret till after their ministers had taken oath of office. Why? In order to avert close critical scrutiny of the document. After a fait accomli, scrutiny becomes redundant in many eyes.
That is a big mistake. In this case, the devil lies not in the detail; not in the fine print of the MCP. He dances merrily all over it, spouting the stale idiom of academia, American style.
The product reflects the deceit in its process. The process must be examined first in order to appreciate the implications of the product. The parties went to the polls with diametrically opposite objectives; the PDP, to secure self-rule for J&K and the BJP to secure its full integration with India, discarding the remnants of its autonomy and privileging Jammu over Kashmir.
The BJP has won hands down; hence Ram Madhav’s triumphant remark quoted above.
Naeem Akhtar, official spokesman of the PDP, admitted on 28 December, shortly after the poll results were out, that “our positions (PDP and BJP) are irreconcilable”.
But he pleaded that “the only way to prevent them from implementing their dangerous agenda is to join them and restrain their actions” – a revealing reflection on the cynicism of both sides. Obviously the Mufti had decided already well before the poll to cast his cot with the BJP. Coalitions, like marriages, are based on trust and agreement on the fundamentals.
Neither existed here. Both sides fought against each other with “irreconcilable” positions and went on to forge a coalition. The question must be faced squarely. Which of the two threw its pledges to the wind?
The CMP must be analysed in the light of the election pledges before 24 December and the solemn pledges made repeatedly from that day to March when the alliance was solemnized. This record and the terms of the CMP of 1 March show the magnitude of the PDP’s betrayal. The BJP did not resile from its agenda of closer integration.
The PDP accepted that and cheerfully jettisoned merely its own agenda and pledges.
The PDP’s Manifesto “An Aspirational Agenda” sought “participation of the people in the elections … so that”, among other things, it “will create conditions that will facilitate resolution of the Kashmir issue.” Freezing the status quo, as the deal does, is no way to resolve the Kashmir dispute which has three parties – the people of Kashmir, India and Pakistan.
But self-rule can and must be a step towards that wider accord. The people will accept nothing less.
This is what it says about the importance of Art. 370: “The special status enshrined in Article 370 is required to empower the people of J&K and help deal with the issues of identity, borders and governance; Use Article 370 itself to restore the original special status of the state; Article 370 impacts everything from political discourse to personal responses, from economy to emotions, from society to sensibilities and from institutions to ideologies.”
This is the importance of Art. 370.
The word “restore” is of crucial importance. The President can constitutionally make an Order under Article 370 rescinding all the Orders made unconstitutionally to reduce Article 370 to a husk. A Memorandum presented by the National Conference to Prime Minister Narsimha Rao on 4 November 1995 urged ‘the restoration of the autonomy of J&K”.
The President’s power to make Order under Art. 370 “would include the power to efface a particular provision of the Constitution of India altogether in its application to Jammu & Kashmir. … Art. 370(1)(d) is not and cannot just be a one way stream”.
The NC’s Manifesto also pledges it to demand restoration of Art. 370. “The National Conference has always maintained that restoration of Autonomy is the only viable solution to the Kashmir problem. The National Conference shall strive with renewed vigor to build a consensus in the country on this matter and remind the Govt. of India about the resolution of the State Assembly in this behalf which requires their urgent consideration.”
This is a reference to the Resolution adopted by the State’s Assembly on 26 June 2000 endorsing the Report of the State Autonomy Committee.
It made a powerful, and the best documented case yet, for restoration of autonomy. Members of the BJP opposed it and walked out. So did the Congress, Panthers Party, Janta Dal and Awami League MLAs.
On 4 July 2000 the Vajpayee Government rejected it summarily. “unacceptable … would … reverse the natural process of harmonizing the aspirations of the people of Jammu and Kashmir with the integrity of the State”. In the BJP’s book “harmonizing” means supremacy of the Centre’s views. Precisely this game is afoot today.
The BJP’s Vision Document of 2014 made no mention of Art. 370. Its in-charge for J&K, Avinash Rai Khanna said “We are fighting the election on the issue of development.
Rest of the issues we have made our stand clear”. For the rest, it was not only Jammu centric but communal.
Two points emerge: There was absolutely no reason to believe that in 2014 the Modi regime would be more liberal on Art. 370 than Vajpayee was in 2000. Quite the contrary; for Modi is an RSS pracharak. Secondly, there was a bipartisan demand for “restoration” of Art. 370; not for a mere pledge not to abrogate it.
Around 2001 a political adventurer of the BJP descended on Srinagar with this “clever” formula. Both sides should shun extremes. India, to give up abrogation of Art. 370; the APHC to give up azadi.
The pledge not to abrogate is downright dishonest. It is a pledge not to do what simply cannot be done at all. It is no favour to Kashmir. The ghost must be put to rest now for good. Art. 368 of India’s Constitution confers on Parliament the power to amend the Constitution.
It is subject to this proviso “Provided that further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by Order of the president under clause (1) of Article 370”. But such an Order was subject to ratification by the State’s Constituent Assembly which deliberately dissolved itself on 26 January 1957 under a resolution moved by Mir Qasim on 17 November 1956.
Thereupon the President, G. M. Sadiq, made a formal declaration of the dissolution. The sole ratificatory body having vanished, Art. 370 cannot be abrogated. The BJP’s threat of its abrogated is an empty threat.
The demand for restoration of Autonomy is valid and urgent. As G. L. Nanda, Union Home Minister, gleefully noted in the Lok Sabha on 4 December 1964 “only the shell is there, Article 370, whether you keep it or not, has been completely emptied of its contents. Nothing has been left in it”. But he had uses for this shell. Changing the metaphor, he said “It is a tunnel.
It is through this tunnel that a good deal of traffic has already passed and more will.”
It did. 47 Orders were made by the President of India under Article 370, from 1954 to 1994, with disastrous results. 94 of the 97 entries in the Union List and 26 of the 47 entries in the Concurrent List were extended to J&K as were 260 of the 395 Articles of the Constitution of India. All with utter unconstitutionality.
Apart from the fact that J&K’s Constituent Assembly had vanished, the State Government’s power to accord its concurrence to such extension existed only for a short period. N. Gopalaswamy Ayyangar told the Constituent Assembly of India on 17 October 1949, “till a Constituent Assembly (of J&K) comes into being, only an interim arrangement is possible.”
Once the Constituent Assembly of Jammu & Kashmir was “convened” on 31 October 1951, the State Government lost all authority to accord any “concurrence” to extension of Central power to J&K. Yet from Jawaharlal Nehru till 1994, all PMs abused Art. 370 in complicity with hand picked CMs to violate Art. 370.
The interim became permanent and J&K “special status” reduced it to a status inferior to that of other States.
Parliament had to amend India’s Constitution four times to extend President’s Rule imposed in Punjab on 11 May 1987 (59th, 64th, 67th and 78th Constitution). For, J&K, the same result was accomplished by a mere executive Order by the Government of India, made in the name of the President, under Art. 370, from 1990 to 1996.
And Article 370 was not passed by the Constituent Assembly unilaterally. It is the only provision which was negotiated with the State of J&K.
The Constituent Assembly putting its formal endorsement on 17 October 1949. The negotiations were conducted from May 1949 by a team led by Kashmir’s Prime Minister Sheikh Mohammed Abdullah on the one hand and Prime Minister Jawaharlal Nehru on the other. In a decade’s time (1954-64) it was reduced to a “shell”.
The Supreme Court refused to help. To whom could Kashmiris turn for redress?
The issue, then, is restoration not non-abrogation. It was on this issue that the PDP went to the people for a mandate as did the NC. The PDP pledged solemnly, repeatedly that it would not compromise on its pledges. Here is the record:
1. 4 January 215: Naeem Akhtar. The PDP will never make any compromise with regional aspirations. “We won’t make any compromise with the interest of the people of the State at any cost”.
2. 24 January : Mufti Mohammed Sayeed. “PDP will not sell its mandate for the sake of power. The interests of the State and its people alone will guide the party in its bid to form a stable and representative government in the State”.
3. 14 February: “Highly placed sources” told Greater Kashmir (of 15 February) that the PDP had made it clear to the BJP that “it should not fiddle with Art. 370”. The Armed Forces Special Powers Act 1990 should be withdrawn from J&K within a year with “immediate withdrawal” from certain areas. It “should take place immediately after the government is formed”.
4. 15 February (Greater Kashmir of 16 February): “Top sources” repeated the above (14 Feb) in identical language. The Mufti was “adamant to the extent that he won’t budge an inch on the alliance agenda, whatever fallout it has.
If the BJP does not fully agree to the agenda, you can take it for granted that the PDP will call it a day”. More, “in that case his view is that he won’t mind BJP going with the National Conference”. The PDP had forwarded the alliance agenda to the Prime Minister’s Office through a point man after 1 January. “It hasn’t moved beyond that point”.
5. 18 February: Mufti to NDTV : “If we fail to form a government, that is better than compromising key beliefs”.
6. 18 February : Sagarika Ghose of The Times of India “Article 370 is fundamental” AFSPA “Why this badnami of the army?”. By now the entire press was agog with reports that a deal was very near; if not done already.
7. 19 February: A complete somersault: No talk of “restoration”. Mufti told Harinder Baweja of Hindustan Times in Mumbai that he wanted agreement “in writing that they will not disturb the present status uaranteed to us under Article 370”; i.e. no abrogation. Gone was “restoration” to its original strength.
8. 21 February: Sources told GK that the agenda focuses on “a process to be followed for partial withdrawal of AFSPA in cooperation with the Central Government.”
9. 21 February: Yet a senior PDP leader told The Hindu (22 February) “the deal is sealed, we have held on to our core demands”.
10. 24 February: Mehbooba Mufti met BJP President Amit Shah in New Delhi. “The deadlock on some issues has finally been resolved” he said while she claimed that “a middle path” had been adopted by both.
What does the MCP record? To appreciate that we must trace the BJP’s pledges on integration to its faithfuls:
20 November 2014: Amit Shah said that the BJP alone can bring about “complete integration” of Kashmir with India.
That was its objective behind Mission 44 Plus. That still remains its objective under the MCP. It made no overture on Art. 370. On AFSPA, Nirmal Singh was explicit on 15 February. Its revocation depends on the “consent of the security forces”.
So, in whose direction does the CMP of 1 March tilt? It treats “Article 370” as dirty words, not even to be mentioned in a polite document. But the omission has a purpose.
It is to cover up a sweeping formulation to endorse the BJP’s stand and also endorse the very Orders by the President which robbed Kashmir of its autonomy. Read this: “While rcognising the different positions and appreciating the perceptions BJP and PDP have on the constitutional status of J&K, considering the political and legislative realities, the present position will be maintained on all the constitutional provisions pertaining to J&K, including the special status in the Constitution of India.”
The existing “realities” – the status quo – is to be acquiesced in “The present position will be maintained”. Note, that will extend to “all the constitutional provisions pertaining to J&K.” Since Art. 370 is the only constitutional provision pertaining to J&K, “all” here refers to the 47 Orders made under Art. 370. They are here approved by the PDP.
The surplusage “including the special status in the Constitution of India”- is window dressing for the gullible.
This is made all too clear by a highly significant, but strangely unnoticed, formal statement on Art. 370 by the Modi Government in Parliament calculatedly just five days before 1 March. What the Minister of State for Home Haribhai Parathibhai said on 25 February in the Rajya Sabha, in reply to a written question, is highly significant.
It was made a mere five days before the CMP was published but after it had been finalized. It was in two parts. One asserted a propos abrogation of Art. 370 “There is currently no such proposal under consideration”.
The second part was menacing. It revives the 50-years old Nanda doctrine of Art. 370 as a “tunnel” for J&K’s closer integration with India. Read this “Article 370 is a device to continue existing relationship of the State of Jammu & Kashmir with the Union of India.
Through this Article the Union Parliament gets jurisdiction to enact laws specified in the Instrument of accession or by later addition with concurrence of the Government of the State of J&K.”
This asserts that (a) the 47 Orders under Art. 370 were validly made and (b) similar Orders can yet be made again by the same unconstitutional procedure – the consent of the State Government which now includes the BJP. It is pledged to erase Art. 370. It will not be abrogated.
It will be used to reduce this “shell” of 1964 to a yet more pathetic State. The PDP ought to have publicly protested against this statement. It has not; nor has the N.C. They can and ought to do so even now.