J & K A HEALING BALM NEEDED

Justice Rajindar Sachar
Chief Justice (Retd.) High Court of Delhi

In this unfortunate and could have been avoided dangerous cleavage between Jammu and Kashmir region, over Amar Nath Yatra land, a much more dangerous thinking has gripped people's attention, which needs immediate defusing.

While the transfer of land to Shrine Board was a deliberately provocative insensitive action engineered by Ex Governor Sinha, the Samiti, if press reports are to be believed, has now come round to accept that the land will be only for users for Yatra period of two months but the ownership of land will remain with the State. The Board members will only be Jammu and Kashmir State subjects (as a measure of goodwill, let any one say Mehbooba, Omar Abdullah or Mirza Beig to be one of the members).

Of course, the larger question of Jammu 's regional disparity with Kashmir will have to be worked out. But that can not and should not be made an immediate issue, otherwise it will muddy the situation. These sensitive questions must necessarily be taken up with the package of whole of J & K question. Many of my friends in Jammu naively believe that the question of Jammu region needs to be solved before the question of J & K is taken up. With respect, this thinking is narrow and overlooks the larger question of J & K with its international ramifications.

Jammu is not shouting ‘Azadi' – the slogan which unfortunately is now being raised in Kashmir after over a decade and which we thought was a thing of the past. It is this alienated mentality which needs to be conscientiously understood and remedied before a workable solution of different regions of J & K can be worked out. In that context it is necessary to appreciate certain parameters from which the Government of India can not withdraw; and similarly the people of valley can not be asked to forget the tragedies, the struggles, the emotional upswing since 1990.

It is no longer in dispute that accession to India of J & K by Maharaja in 1947, affirmed by Sheikh Abdullah, is constitutional and beyond challenge. It is also axiomatic that neither India nor Pakistan can, as a practical measure, contemplate any of such areas of J & K within their respective areas to secede out. Pakistan has already incorporated Northern area in its territory. Baltistan and Gilgit are not even allowed to directly trade with Srinagar . Akshichin portion is given by Pakistan to China and is irrecoverable. The separatists thus fully know that the possibility of J & K (as it existed prior to 1947) becoming an Independent State is moonshine – apart from the danger of it becoming a pawn in the USA world strategy and suffering the fate of Afghanistan. That is why for quite sometime both India and Pakistan have sensibly accepted that there can be no change of J & K territory in each of their respective country; but there is no reason why LOC should not be made as soft, rather almost ephemeral. (Mr. Zardari, the President of Pakistan has recently so suggested). Srinagar – Muzaffarabad bus service was the initial step. So when there was blockade on highway for fruit merchants of Srinagar , it was natural for some mischief makers to revive the slogan of ‘Azadi' . This sentiment could have been defused if central government had immediately taken strong measures to ease the blockade; but it did not. But what is even more stupid is that the central government did not bring it out clearly (which it is trying to do so now – namely default for Muzaffarabad route not opening is the reluctance of Pakistan). Such is the gap that though some neutral observers now vouch that highway is clear, the resentment and understandable fear is keeping the movement from Srinagar still frozen. Should the central government not be making more serious efforts? But then continuance of curfew is a great hurdle in the restoration of normalcy. The government's uncalled for jamming of local news and information have been retaliated by cable operators by shutting off national news and views – thus a void between the valley and the rest of India is being widened. The government must not stifle news and views even if they are of somewhat extreme because sunlight of information is the best disinfectant to false news.

Recently, some romantic novelist and journalist purported to suggest that if Kashmir valley wants to go out of India it should be allowed to do so. Such is the lack of knowledge of history that one of the important leader of BJP at a public function was extolling about the opinion poll showing that only 28% of people in India voted for Kashmir being allowed to go out of Indian Union – one had to marvel at his ignorance of history to remind him and to bring him back to sobriety that even at the worst of period (1990) hardly 1% of people in the rest of India would have subscribed to this view. Also it must be remembered that this 28% is not out of sympathy for tiny minority of separatists in J & K – it is an attitude of mindset which calculates in terms of money and expense being spent by Indian State – hardly an ideal to follow – but then with middle class culture of consumption because of globalization and a respectable editor of a newspaper propounding the same view, what can you expect? But even then the genuine sentiments for autonomy in the valley must be honoured. This mandates that India can not underplay the sentiments and aspirations of the State especially of J & K valley.

It is incumbent, therefore, for all parties in India to publicly commit their agreement that only such subjects as, defence, foreign affairs, currency, communication as per instrument of accession, will be central subjects; the rest will be with the State. Article 370 being there, Centre will have no jurisdiction over any other subject unless the State Assembly of J & K by a resolution so permits. As a matter of further bona fide , the Central Government should withdraw all Central Legislations which earlier J & K Assembly had authorized it (no great surrender because they are normal legislations like Municipal Act, Industrial Act, which the State government will itself have to provide for proper governance). This exclusive autonomous power to legislate has already been given to certain areas in the State of Assam and Meghalaya, decades back by amendment of our Constitution. I know that all these details can be fully worked out only after the next General Elections, but the dialogue and favourable atmosphere must begin immediately.

There are reports that situation in Jammu is unfortunately   being communalized. The Government's distribution of arms for self-protection to both the communities has the risk of being misused. This needs to be immediately looked into by the authorities concerned.