Sageer hits nation below the belt

Justice Sageer Ahmed has been unfair to the Muslims of Kashmir as well, for obvious reasons, the most important being his belief in a system that treats human beings like slaves. In other words, he, like the autocratic and arrogant Kashmiri Muslim leadership, is for a dispensation that deprives the Muslims of Kashmir of those normal civil and political rights which are available to other fellow Indians under the Indian Constitution.

He says “it is for the people of the State of Jammu and Kashmir to decide how long to continue Article 370…” It is strange that he has referred to the “people of the state”, who are victims of Article 370, which is not just separatist and communal in nature and implications, but also anti-democratic. That Article 370 is anti-people and anti-democratic can be seen from the fact that it gives absolute executive powers to the President of India, who can keep the people of the State under his/her own rule for any number of years without referring the issue to Parliament.

Compare Punjab with Jammu & Kashmir and you will see the difference. The militant-infested Punjab was brought under President’s rule on May 11, 1987. Central rule continued for almost five years; it ended in 1992 with the popularly-elected government under Beant Singh. In between, the Centre had to amend the Indian Constitution four times. In 1988 it had to invoke the provisions of Article 352 of the Constitution in order to declare an emergency in Punjab and amend Articles 358 and 359 with a view to keeping it under President’s rule beyond the stipulated period prescribed by Article 356. Article 358 and 359 provide for the automatic suspension of Article 19 of the Indian Constitution which deals with the rights regarding freedom of speech. This indicates that the Centre has to take the entire nation into confidence if it contemplates an extraordinary action in any of the States of the Union, excluding Jammu & Kashmir.

As for the hapless Jammu & Kashmir, it remained under Governor’s rule from January 19, 1990 to July 18, 1990, and under President’s rule from July 19, 1990 to October 9, 1996, when the Dr Farooq Abdullah-led National Conference government was installed. Taken together, Jammu & Kashmir remained under Governor’s/President’s rule for six years, eight months and twenty days.

The Centre never felt the need during all these years of unpopular rule to take Parliament into confidence or amend any of the provisions of the Indian Constitution. Nor did any political formation ever question the Centre’s actions. The reason: Under Article 370 the President at the behest of the Union Cabinet can issue any number of executive orders and subvert even the basic democratic rights of the people of Jammu & Kashmir. Further, Jammu & Kashmir is the only State in the Union which can be kept under Governor’s rule for a maximum period of six months under section 92 of the State Constitution. When this happens, the Governor enjoys absolute legislative and executive powers and whatever he does during this period has the force of law. No one can challenge his legislative actions in a court of law.

Yet the judge has the audacity to suggest that it is for the people of the State to take a decision on this anti-democratic and anti-people Article. He had no other option but to commend Article 370 as he was duty-bound to endorse the Kashmiri Muslim leadership’s formulations and recommend something which has the potential of further empowering the Kashmiri Muslim leadership to re-establish in the State a local oligarchy and loot, fleece and exploit the general populace.

The suggestions of Justice Sageer Ahmed that “the question of ‘autonomy’ and its demand can be examined in the light of the (1975) ‘Kashmir Accord’”, that the “question of appointment of the Governor and dismissal of the popular government by the Governor may be considered and resolved” and that the Central Government should “consider” the “self-rule document” (autonomy concept and self-rule doctrine are two sides of the same coin) as and when it is submitted to it, need to be viewed in this context.

It would be prudent to point out that Justice Sageer Ahmed has, like the canny National Conference leadership, deliberately ignored the fact that the 1975 Accord was implemented in letter and spirit in 1975 itself, when the then Prime Minister Indira Gandhi forced the Congress government in the State to abdicate power in favour of Sheikh Abdullah. Neither the State Autonomy Committee Report nor Justice Sageer report has referred to what happened in the State in the wake of the implementation of the 1975 Accord. Justice Sageer Ahmed, like the National Conference leaders, is a fraud.

It bears recalling that this Accord had empowered the Sheikh to seek withdrawal of those Central laws which he considered harmful for the State’s special status. As per the terms of the accord, he appointed in 1977 a high-power three-member Cabinet sub-committee under the then Revenue Minister Mirza Afzal Beg. The two members were the Sheikh’s son-in-law G M Shah and Ghulam Nabi Kochak. Beg was soon removed because relations between him and the Sheikh had become bitter due to personal and ideological reasons. He was replaced by the then Deputy Chief Minister D. D. Thakur.

The Cabinet sub-committee’s task was to go into the whole gamut of Central laws extended to Jammu & Kashmir and recommend withdrawal of those deemed harmful to the State’s special politico-economic and socio-religious rights and interests. This committee submitted two contradictory reports. One was from D. D. Thakur, who said that “the needles of the clock cannot be turned back” and that “none of the Central laws impinged in the state’s special status or eroded the Kashmiri identity”. The other report from Shah and Kochak recommended withdrawal of all Central laws and institutions from the State. This profound cleavage of opinion culminated in a serious controversy in the Cabinet, which was resolved by Sheikh Abdullah, himself an ardent believer in the doctrine of greater autonomy, when he accepted Thakur’s recommendations in full and allowed the Union Government to extend more Central laws.

Thus, not only did the Sheikh allow New Delhi to extend more Central laws between 1977 and 1982, his son Dr Farooq Abdullah and son-in-law G.M. Shah, both champions of greater autonomy, also permitted several laws, including POTA, between 1982 and 1989. Dr Farooq Abdullah was the first Chief Minister to adopt and apply POTA.

Justice Sageer Ahmed has established his pro-National Conference and pro-People’s Democratic Party credentials by supporting the demand for autonomy and by asking the Prime Minister to consider the self-rule document as and when it is submitted to him.

Now a few words on what autonomy, if given to J&K at the behest of the National Conference, would entail. To quote verbatim from the April 1999 State Autonomy Committee Report (p. 84-86) summary of recommendations will put things in perspective and establish what Justice Sageer Ahmad and the National Conference stand for:-

1] Temporary, Transitional and Special Provisions (Part XXI)

“The word ‘Temporary’ be deleted from the title of part XXI of the Constitution of India and the word ‘temporary’ occurring in the heading of Article 370 be substituted by the word ‘special”.

2] Legislative Relations (Part XI)

(a) “Matters in the Union List not connected with the three subjects of Defence, External Affairs and Communications and/or Ancillary thereto but made applicable should be excluded from their application to the state”.

(b) “All modifications made in Article 246 in its application to the state subsequent to the 1950 order should be rescinded”.

© “Articles 248, 249, 250 and 251 whether applied in original or substituted/modified form should be omitted from their application to the state”.

(d) “As in 1950 and 1954, List II (State) and List III (Concurrent) of the seventh Schedule should not be applicable to the state”.

(e) “Article 254 should be restored to the position it held in its application to the state in 1954”.

(f) “Articles 262 and 263 which were not applicable under 1950 Order but were subsequently extended to the state should cease to apply”.

3] Elections (Part XV)

“Changes brought about in this part be reversed and consequential changes in other Articles in this part be effected”.

4] Emergency Provisions (Part XVIII)

(a) “The following should be added to C 1.6 of Articles 352 in its application to the state:-

Provided that this request for concurrence of the Government of the State shall be subject to whatever decision the State Assembly may take within two months of declaration of emergency and failing any such decision, the proclamation of emergency shall be deemed to have been revoked”.

(b) “Sub-clause (b) of C. 1. (6) of this Article should be deleted”.

(c) “Articles 355, 356, 357, 358, 359 and 360 should be made non-applicable to the state as was the position before 1954”.

5] Fundamental Rights (Part III)

“This part should be deleted”.

6] The Union (Part V)

(a) “Articles 72 (1) (c), 72 (3), 133, 134, 135, 136, 138, 145, (1) (c) and 151 (2) should be made non-applicable to the state as was the position of 1950 Order”.

(b) “Article 149, 150 and 151 should apply to the state in the form in which they were in 1954”.

7] The States (Part VI)

(i) “Article 218 be omitted in its application to the state and the position as it existed before the J&K Constitution (First Amendment Act) of 1959 restored”.

(ii) “Articles 220, 222 and 226 should also be omitted in their application to Jammu and Kashmir State”.

8] Finance, Property, Contracts and Suits (Part XII)

“The matter be discussed between the state representatives and the Union Government as agreed to during the talks in 1952 Delhi Agreement”. (There is NO such thing as a signed Delhi Agreement; it was just a statement made by Nehru and the Sheikh.)

9] Services under the Union and the State (Part XIV)

“In Article 312 the brackets and words ‘including the State of Jammu and Kashmir’ inserted by the Constitution (Application to J&K) Order 1958 be omitted”.

10] Special Provisions relating to certain classes (Part XVI)

“Application of Articles 338, 339, 340, 341 and 342 to the state should be omitted…”

11] Amendment of the Constitution of India (Part XX)

(i) “Clause (4) of Article 368 added vide C.O. 101 be deleted”.

(ii) “Clause (2) of the Article should apply with the proviso already introduced by 1954 order and clause (1) thereof which was not in existence in 1954 and was introduced in 1971 should remain omitted in its application to the state”.

12] Schedules

“In the seventh Schedule entries in the Union List not applied to the state by the Constitution (Application to J&K) Order 1950 should be omitted. Concurrent List which was not applicable to the state in 1950 but was applied by subsequent orders should cease to apply to the state”.

13] Changes in the State Constitution

“All amendments in the Constitution of Jammu and Kashmir made vide:-

(i) Constitution of Jammu and Kashmir (First Amendment) Act, 1959 in so far as they relate to superintendence, direction and control of elections to the state legislature and to the state High Court; and Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965 relating to change of nomenclature of the Head of the State and State Executive, mode of appointment of the Head of the State and other consequential amendments should be repealed and the original provisions of the Constitution of Jammu and Kashmir restored”.

What does this summary suggest? It suggests that the National Conference doesn’t want any kind of constitutional and political truck with New Delhi and that it wants nothing less than quasi-independence – just a step short of complete independence. It wants a committed judiciary; it wants a committed Sadar-e-Riyasat; it wants to revive the office of Wazir-e-Azam; it wants to create a Muslim Republic on Indian territories; it wants to reintroduce autocracy in the State; it wants to gag the press, impose strict restrictions on civil liberties, including the right to speech, and it wants to deny the people their fundamental rights. And this is what Justice Sageer has recommended for the people of Jammu & Kashmir, bypassing the members of the Working Group.

Kashmiri Muslim leaders, including JKPCC chief Saif-ud-Din Soz, have welcomed the report. Why shouldn’t they? After all, they all want the segregation of J&K from India.

New Delhi must reject this anti-India, anti-Jammu, anti-Ladakh, anti-internally-displaced Kashmiri Hindus, anti-Gujjar and Bakerwal Muslims, and pro-separatist and pro-communalist report. To accept this report would mean the end of Indian presence in the State and the rise of a tendency which would encourage fissiparous tendencies in other parts of the country to work for the nation’s disintegration. In other words, it would mean the spectacular victory of Islamic radicals and comprehensive defeat of what the Indian nation stands for - secular, liberal and democratic values, and all-accommodating ideology.

(Concluded)       

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