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J&K Crisis: Beyond the Courts

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A recent petition before the apex court seeking its direction to impose governor’s rule was not entertained. The three-judge bench observed that the Kashmir crisis should be resolved politically and not by the judiciary

By Kalyani Shankar

Will any arm of the judiciary or for that matter even the Supreme Court interfere in a sensitive issue like the one in Kashmir that is currently making news for all the wrong reasons? With the violence spiralling out of control following the killing of Hizbul Mujahideen commander, Burhan Wani, the Jammu and Kashmir National Panthers Party (JKNPP) knocked at the doors of the apex court in July for relief.

The JKNPP, in its petition, prayed that the Court direct the state governor NN Vora to take over administration “in the interest of security, safety and fundamental rights of the Indian citizens in the Kashmir valley.” The JKNPP told the Court that the governor should invoke Section 92 of the J&K constitution which allows the dismissal of the state government in the event of a breakdown of the constitutional machinery there.

Burhan Wani’s death brought to the fore deep-seated discontent among the Kashmiri youth against the Indian establishment. Photo: UNI
Burhan Wani’s death brought to the fore deep-seated discontent among the Kashmiri youth against the Indian establishment. Photo: UNI

The Court initially directed the state and central governments to submit their respective reports on the law and order situation in J&K. The center’s report submitted before the Court on August 5 indicated that the situation had improved considerably with the number of violent protests going down from 201 on July 9 to 11 on August 3. “Due to persistent efforts of the security forces/Jammu and Kashmir Police, the situation has shown remarkable improvement, with the number of incidents declining progressively since the outbreak of violent protests and clashes,” the center told the Court.

The bench headed by Chief Justice of India TS Thakur and Justices AM Khanwilkar and DY Chandrachud decided that the Court had no reason to intervene. In fact, it said that Kashmir was a political issue which needed to be resolved politically.

The bench headed by Chief Justice of India TS Thakur and Justices AM Khanwilkar and DY Chandrachud decided that the Court had no reason to intervene. In fact, it said that Kashmir was a political issue which needed to be resolved politically. “This issue (the present turmoil in the valley) has various dimensions and therefore should be dealt politically and moreover, everything cannot be managed within the judicial parameters,” the bench told JKNPP leader and lawyer Bhim Singh who appeared on behalf of his party in court.

ONLY DIALOGUE

In effect, the highest court in the land was expressing a view that several Kashmir experts have been voicing over the last two months that the present crisis can be resolved only through dialogue with the various political stakeholders. It is another matter that the central and state governments have not been able to douse the fire. The former expects the latter to control it while the elected leaders of Kashmir are throwing back the responsibility to the center. Though parliament is united, it cannot do much. So Bhim Singh and his party were perhaps expecting the judiciary to act.

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The reality is that the Kashmir problem continues to be unsolved since Partition. Since then, there have been three major and one minor wars, besides numerous armed skirmishes, between the two countries. In the last 69 years, both countries have employed bilateral as well as multilateral approaches to resolve the conflict in vain. Several solutions had been proposed, including division of the whole state on the basis of ethnic majority, (advantage Pakistan), independence of Kashmir by demilitarization of Indian and Pakistani forces from Kashmir, a “confederation” with a joint control on Kashmir by both India and Pakistan and implementing the resolution of the United Nations by holding a plebiscite among others.

De-radicalization of the youth is an absolute necessity to check militancy. Programs should be evolved to provide jobs and improve the economy of the state. Indo-Pak dialogue should also be resumed as soon as possible. The Kashmir dispute remains a core issue on the foreign and security policy agendas of both Pakistan and India.

According to former foreign minister of Pakistan Khurshid Mahmud Kasuri, India and Pakistan were about to reach a solution during Pervez Musharraf’s regime but failed because of the judicial crisis in Pakistan.

The four-point Musharraf formula included the de-militarization and reduction in violence, self-governance, a joint control mechanism for both parts of the state and rendering the Line of Control as just “a line on the map”.

RADICALIZATION OF YOUTH

The experts all agree that there is utmost urgency in addressing the present crisis in view of the growing radicalization of the youth. Three generations of Kashmir is have borne the brunt of armed conflict. According to official statistics, the ratio of local versus foreign militants has changed from 40/60 in 2013 to 60/40 last year. 

Prime Minister Atal Bihari Vajpayee receiving Gen Pervez Musharraf at the Rashtrapati Bhawan in Delhi in 2001. The two leaders developed a close understanding by the time the BJP government was voted out in 2004. Photo: Getty Images
Prime Minister Atal Bihari Vajpayee receiving Gen Pervez Musharraf at the Rashtrapati Bhawan in Delhi in 2001. The two leaders developed a close understanding by the time the BJP government was voted out in 2004. Photo: Getty Images

Noted Kashmir analyst AG Noorani traces the present unrest to what happened in 1989. “In 1989, the latent wrath of the Kashmiris flared up. Pakistan supplied the gun; India built up the wrath, and that wrath will not subside now. It cannot be crushed by bribery or force. Indian nationalism must come to terms with Kashmiri nationalism,” he observes in an article in Frontline (May 27 issue). According to official estimates, since 1989, about 44,000 people have been killed in Kashmir (35 percent civilians) while unofficial estimates of killings are much higher.

Kashmir is indeed a political problem but the center has been handling it as a security/law and order problem. At best, New Delhi feels it has been created by Pakistan. Successive prime ministers have believed that by announcing a financial package, the problem would get resolved. They have talked about reaching out, appointing interlocutors, holding round table conferences and providing the “healing touch” whenever trouble erupts in the valley.

The immediate provocation for the present crisis began when the security forces killed 22-year-old Hizbul Mujahedeen commander Burhan Wani on July 8 in an encounter. Wani represents the growing home-grown militancy. The son of a headmaster, he took to the gun reportedly to avenge the death of his brother. The new generation of Kashmiris have begun to look at people like Wani as their icon. Former Jammu & Kashmir Chief Minister Omar Abdulla’s tweet, “Mark my words—Burhan’s ability to recruit into militancy from the grave will far outstrip anything he could have done on social media,” reveals the extent of radicalization.

This indigenous uprising has indeed changed the situation. The youth have now demonstrated that they have a stake in the Kashmir issue. The sad part of the story is that almost three generations of youth in Kashmir have only seen armed forces with lethal weapons, curfews and closures. They have complete disillusionment with the political class. Thousands of mourners who joined Wani’s funeral procession proved it. This unrest is not only against the present political dispensation, but a cumulative anger against all those who exploited the Kashmiris for their power politics.

SEVERAL DIMENSIONS

Wani’s death has brought out the various dimensions of the Kashmir problem once again. There is a local angle, there is a national angle, there is an international angle and also there is an India-Pakistan angle. As for the international angle, even last September, Pakistan Prime Minister Nawaz Sharif had urged for a plebiscite in Kashmir, stressing the need for implementation of the UN Security Council resolution in this regard. He raised it during his meeting with US President Obama.

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On July 13, India and Pakistan traded bitter allegations of human rights violations at the United Nations, resulting in a diplomatic spat. The UN Secretary General, Ban Ki-moon, urged all the parties to exercise “maximum restraint” and hoped that all concerns would be addressed through peaceful means. On August 26, Pakistan asked the world community to play its role in the peaceful resolution of the Kashmir issue. The current Kashmir uprising should also be read in context with the failure of world powers in Afghanistan which faces a fluid political and military situation.

At the bilateral level, the ties are on a veritable roller-coaster. The recent “provocative” statements by Pakistan have brought the politics of confrontation to the fore. Pakistan has issued a demarche over the killings in Kashmir. Sharif spoke about Kashmir in his Independence Day address to the nation. On August 2, Pakistan parliament had unanimously passed a resolution: “The National Assembly of Pakistan strongly condemns the recent atrocities perpetrated on innocent Kashmiris by Indian security forces.”

As for the national angle, as Chief Justice Thakur observed recently, the problem is haunting because of the nature of the multi-divided society. The people of Jammu wanted abrogation of article 370, those living in Ladakh want their region to become a Union Territory due to their mistrust about Kashmir’s hegemony, the people in the valley are yearning for independence, while the Hindus of Kashmir, who have been hounded out of the valley, want to have a homeland there.

The Mehbooba government is yet to find its feet. The PDP-BJP coalition is shaky and riddled with inherent contradictions after the death of chief minister Mufti Mohammad Sayeed in January. The PDP finds it difficult to explain its coalition experiment with the BJP. Mehbooba has fallen between the two stools as neither her party nor the center trust her. She finds it a “multi-dimensional problem that needs a bit of all solutions”.  The other opposition parties in the state also have no solution.

Finding a political solution is easier said than done.  As columnist Dilip Padgaonkar, who was an interlocutor in 2010, notes: “Any option that entails secessionism is clearly not on the table. Nor is the abrogation of J&K’s special status. That leaves us with variants of autonomy.”

Clearly, there are two levels of the conflict resolution—short-term and long-term. The discourse over bringing normalcy to Kashmir must address the grievances of the people of Jammu, Kashmir and Ladakh, including the part of Kashmir under control of Pakistan.

CBMs AS A PRECLUDE 

The immediate priority is to restore normalcy. Confidence-building measures should be taken up as a prelude to any peace talks. There is a huge trust deficit. Talks should involve all stakeholders, although the separatists shut their door to the All-Party Parliamentary delegation that called on them on September 4.

The moderates in the valley should be encouraged and the separatists should be isolated. As people resent heavy military force, a phased de-militarization and revocation of AFPSA should be started.

De-radicalization of the youth is an absolute necessity to check militancy. Programs should be evolved to provide jobs and improve the economy of the state. Indo-Pak dialogue should also be resumed as soon as possible. The Kashmir dispute remains a core issue on the foreign and security policy agendas of both Pakistan and India.

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In 1999, Vajpayee and Sharif made some progress on Kashmir via the Lahore Declaration. In 2004, there was the Vajpayee-Musharaff Islamabad declaration. Between 2004 and 2008, Dr Singh and Musharraf had moved closer to resolving the Kashmir issue. Prime Minister Modi began well by inviting Nawaz Sharif for his swearing-in ceremony and last Christmas made a surprise stopover in Lahore to inject a new momentum. But that gain was frittered away with the Pathankot incident later. New Delhi has since been following an ad hoc Pak policy.

For too long, Kashmir hoped that its problems would be addressed politically. It believed in 2008, then in 2010, but now it has reached a breaking point. There is no more time to be lost as Mehbooba noted that the best time to solve Kashmir’s problem is now—when the BJP has an absolute majority in the parliament. “If it does not happen now, it will take a very long time to get resolved,” she told the media after meeting Modi recently.

In any case, most political parties are supporting a resolution. The center should carry forward the peace dialogue and back it up with action.

Lead picture:  (L-R) Supreme Court and J&K Governor NN Vohra. Photo: UNI

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