BOOK RELEASED....

                                                 BOOK RELEASED....

THE UNTOLD STORY OF KASHMIRI PANDITS

                             THE UNTOLD STORY OF KASHMIRI PANDITS

Kashmir—a Rishi Bhoomi-- has had distinguished past history and rich culture that has been established in the chronicles of great ancient historian-poet Kalhana who wrote “Rajatarangni” (River of Kings) in 12th century. It is most important extant history of Kashmir written in Sanskrit

7,844 verses in 1148AD and completed in 1150AD, based on extensive research. Pandit Kalhana has built dynastic lists of 54 reigns, covering an aggregate period of 3050 years. He has mentioned social, economical, political and religious conditions of the period .The Nilmata Purana gives ‘Kasmira’ as the name of the valley, which is worldwide known as ‘Kashmir’ and to locals ’Kashir’ even today. Jammu and Kashmir state is situated in north of India 72-30’E longitude and 32-37degree N latitude approximately. The total area of the state is 2,22,236sq.kms., 78,114sq.kms.are under occupation of Pakistan, 5,180.km. Pakistan gifted to China and 37,555 sq. kms. are under occupation of China. Kashmiri Pandits have a rich cultural heritage. They possessed numerous religious endowments and shrines. Many Hindu monarchs built numerous elegant temples, some of these still exist. There are many famous centers of religious pilgrimage like the holy Amarnath, the Maharagnya shrine, the Sun temple at Martand, Maa Sharika temple on the Hari Parbat hillock and the high Gangabal lake as sacred as the Ganga. The Shiv- Shakti cult, the Maahayana Buddhism and even the Kamasutra originated from Kashmir. There is lot of literature on religion, history, philosophy and lovelore on Kashmir available all over the world. As much as 35 percent of Sanskrit literature came from Kashmir. The Shiva philosophy got new dimensions in the folklore. In the Lalla Vakh of saint Lalleshwari(1335-1376), we can perceive Kashmir Shaivism in depth which interprets Bhakti as a quest for knowledge. History has it that Buddhism, Vaisnavism and Shaivism flourished side by side in Kashmir. Emperor Ashoka(2632BC)brought Buddhism to the valley. Three centuries later, Emperor Kanishka convened the Fourth Buddhist Council in Kashmir at a place called Kundalvara which led to the founding of its Mahayana sect. Buddhist missionaries from Kashmir carried it to Central Asia and China. Lalitaditya Muktapida (701-737AD) was the greatest Hindu emperor Kashmir has ever produced. He built a number of new towns with temples of great archaelogical importance. “There was not a township, no village, no river, no island where this king did not lay down a sacred foundation.” Says Kalhana. Ever since Islam made inroads into Kashmir, the Hindu influence was forced to wane. Islam spread quickly because there was large-scale persecution of Hindus and their forcible conversion during the Muslim rule. During the reign of Sultan Sikander (1389-1413), nicknamed ‘Butshikan’, only 11 Hindu families survived conversion, and first mass migration of Kashmiri Pandits to plains took place. He destroyed hundreds of temples and built mosques in their place and with their material. With the collapse of the Mughal empire in 1752, Kashmir was taken over by the Afghans. This was perhaps the worst period in the annals of Kashmir unheard of in human history. Maharaja Ranjit Singh conquered Kashmir from Afghan’s in 1819. Within four months of Sikh rule census was conducted in Kashmir. The population stood at 6 Lakhs and out of that only 28,000 were Kashmiri Pandits ! Sikhs ruled Kashmir till 1846.The Dogras ruled the state from 1846 to 1947 till India got independence from the British rule. The last Dogra ruler, Maharaja Hari Singh, acceded the state to the Indian Union. Soon after, tribals and regulars from Pakistan invaded the state but the Indian security forces repulsed the attack and pushed the invaders out. In January 1949, a ceasefire agreement was concluded between India and Pakistan with one-third of the state territories still remaining under the illegal occupation of Pakistan. India accorded special status to Jammu and Kashmir under Article 370 of the Constitution.

The creation of Pakistan in 1947 was a landmark in the struggle for the unification of the Muslim Ummah. Ever since Pakistan was created, it has followed a sustained policy of thrust for expansion towards the east, as a major strategy to spread across Jammu & Kashmir and take the Muslim power to the predominantly Muslim regions of Central Asia, Mongolia and Sinkiang. The terrorist violence in the state is the continuation of the consolidation of the pan-Islamic unity of which the creation of Pakistan was a part. Pakistan claims the state on the basis of the Muslim majority of its population. While terrorism rages in Kashmir, it demands that India be divided again to carry the partition to its logical conclusion by ceding the state to Pakistan.

India has thus been Pakistan’s main target and has been turned by it into its killing field. Apart from three wars and the continuing proxy war raging in the state, we have been witnessing a bomb blast engineered by Pakistani agents in one part of the country or the other virtually every day. Young Muslims, the world over are recruited, brainwashed, trained in insurgency, terrorist strategy and tactics. ’Jehad’, becomes their battle cry. Kashmiri Pandits have lived in the last five decades of Indian freedom and are perhaps the only witnesses of what has been wrought in the state by Muslims secessionist forces and the successive state governments, with the passive acquiescence of the Government of India. Kashmiri Pandits , in the interest of nation and in the interest of history, accept lies and falsehoods as the truth, for that may not only harm the community but also the country and earn us the calumny of having failed in our duty unto our country. Perhaps,more harm has been done to us, by our inability to tell the truth of what has been happening in Kashmir and to our community. There must be no misunderstanding about the fact that the Muslim secessionist forces have been fighting a war against the Pandits in Kashmir. The Hindu community which has stubbornly supported India in Jammu & Kashmir and in fact has the only support base of India in the state, naturally has always been considered by Muslim secessionist forces, as their main enemy in the state. The Pandits have been treated as hostages in Kashmir and have always paid heavily not only for their patriotism but for their commitment to their own faith.

Kashmiri Pandits are historically and traditionally a community of scholars, intellectuals, efficient professionals, administrative workforce and have passion for education,--a community which is almost cent percent educated in varied disciplines. It was thus an unbearable oppression for them when the state authorities worked assiduously and strictly towards restricting their admissions to higher educational courses and institutions. Simultaneously, their opportunities to enter state government employment were slashed and their landed properties were taken over under cover of laws which were unconstitutional, unfair and unequal. State government changed the names of 684 villages, which had Hindu names by a government order No. REV/S/340 of 1981 dated 13-10-1981.The Muslimisation of the various political and economic processes had began earlier and the minorities in Kashmir were at the receiving end.

A lot of crap is being peddled out about Kashmiri Pandits having a dominant position in Kashmir whereas facts speak a different story. The basic fact is that the Muslims are ruling elite in Kashmir. They dominate the entire economic organization and enjoy communal precedence in social forums. Islam is virtually the official religion of the state. They have three-fourth share in legislative bodies, administrative organizations and all the local government institutions. In the Kashmir province, Hindus have no elected representation in local bodies. They constitute less than 5 percent of the administrative services of the state and have less than 1percent share in higher cadres of the state administration. Muslim monopolize 94 percent 0f the state services in Kashmir. More than 90 percent of the admissions to professional, technical and other educational institutions are reserved for Muslims in one form or the other. In financial sphere, the Muslims own 96 percent of agricultural lands, orchards and other urban landed estates. They enjoy monopoly over the entire industrial organizations, trade and commerce, financial resources and exports from the province of Kashmir. The pressure tactics and persecution that the Pandits faced in Kashmir drove almost half their number out of their homes during the four decades of the Indian independence in search of their livelihood. The rest of them were flushed out in 1990, when Islamic terrorist struck the valley and a large number of minority community members were murdered in cold blood, tortured, raped, temples desecrated, their property looted and burnt. .

The rumblings of the storm which engulfed Hindus were heard long before it swept the valley. Right from the beginning of 1989, the Hindus, other than the Pandits in Kashmir, professionally a trading community, were served threats to quit Kashmir because they were Indian Hindus and had acquired interests which impinged upon the rights of Muslims in the valley. The ultimate and devastating blow came on January 19, 1990, late in the night, when hundreds thousands of Muslims came out in streets and the loudspeakers fitted on the mosques started blaring and yelling ‘Kashmiri Pandits, leave Kashmir, without your womenfolk, or else face death!’ Then hell was let loose. Hundreds of innocent Kashmiri Pandits –men, women and children—were killed .Among those picked for killing were the people from all sections of Hindu society ---teachers, lawyers, doctors, nurses, political activists, media persons, intellectuals and men of small means. The worst victims were women. Torture deaths were resorted. Inhuman practices like strangulation by using steel wires, public hanging, impaling, branding with hot iron rods, torching alive, lynching, gorging of eyes before assassination, slicing, dismemberment of limbs, drowning, dragging to death, draining of blood and slaughter in the open were adopted. During 1989-90 terrorist killings were accompanied by rape, torture and atrocities unheard of in the annals of human history. 24,000 residential houses and 14,430 business houses were destroyed. About 12,500 orchards of Hindus were grabbed by Muslims. The widespread killings, assault on women, the fear of conversions and the shocking experience of being forced to join the militancy campaign against India were main reasons that drove out Hindus from Kashmir. . The traumatic experiences of Kashmiri Pandits were so acute that they found themselves left along to their fate, face to face with death and dishonour. The total breakdown of the law and order machinery spread a sense of insecurity, which was so severe that the most of the Pandits, more than 400,000, fled the valley and migrated to Jammu and Delhi in the dark hours of the night without any belongings. There by the ethnic cleansing of the Pandits was completed. KASHMIRI PANDITS BECAME REFUGEES IN THEIR OWN COUNTRY ! In Jammu, where refugees poured in thousands, the state government failed to rise to the occasion and provide temporary shelter and relief to the hundreds of thousands of Pandits sprawling the streets of the temple city. Were it not for the yeoman’s service of the voluntary Hindu organizations combined with voluntary work force of displaced community, which immediately swung into action to organize relief for the refugees, hunger and disease would have taken a heavy toll of the grief-stricken people, who had suddenly been thrown into wilderness. All state Kashmiri Pandit conference, Srinagar, Kashmiri Pandit Saba, Jammu and many other Kashmiri Pandit organizations swung into action. No help came from any other quarter. The silence of death fell on the liberals, the protagonists of secularism, the radicals and the rest. Gita Bhawan, a temple complex situated in the heart of city, was converted into a reception-cum-transit camp, where the refugees fleeing from Kashmir disembarked. Kashmiri Pandit saba, Jammu also opened their office complex at Ambphalla to receive the refugee influx.

In Delhi, the other main place of refuge, the Kashmiri Samiti, Delhi, took up the work of relief and rehabilitation. A transit camp was set up at Kashmir Bhawan (headquarters of the Samiti) itself for the displaced persons who were later shifted to 14 other camps in Delhi. A band of selfless and dedicated workers of the Samiti worked day in and day out for the displaced brethren. Koshur Samachar—the monthly tri-lingual mouthpiece of Samiti woke up for its new role and responsibility. It exposed the dis-information compaign carried against Kashmiri Pandits and half-truths about happenings in Kashmir. A true and patriotic picture was given out to Nation. The Samiti organized seminars, demonstrations, public rallies and raised their voice against human rights violations, genocide and ethnic cleansing of Kashmiri Pandits. Apart from ‘Teh-Bazari’ and seeking employment for educated un-employed teachers Samiti played an extremely pivotal role in getting admission in technical and non-technical institutions for the wards of displaced community.

The exodus of the Hindus from Kashmir was followed by wide-spread depredation of their places of worship. The minister of state for home, government of India, stated in Lok Sabha on 12th March 1993 that 28 temples and Hindu shrines were demolished and desecrated in Kashmir during the year 1989 to1991.Actual number of the temples demolished and damaged was much higher. 68 temples and Hindu shrines located in remote villages were burnt, damaged and demolished, about which reports were never collected by state government. In the aftermath of the demolition of Babri structure, erupted into widespread attack on the Hindu temples and places of worship. As many as 97 temples were burnt or damaged in the incidents of terrorist violence in Jammu and Kashmir from 1992 till July (1995) this year and 1747 civilians lost their lives in the last 19 months, the Lok Sabha was informed on August, 9, 1995. On the same day the minister of state in the prime minister’s office Mr. Bhuvanesh Chaturvedi said in a written reply,’ 31 temples were damaged only this year (1995) and added that security arrangements have been made in vulnerable areas including regular patrolling by security forces for the protection against possible attacks by militants.’ The destruction of the temples and religious institutions was evidently aimed to destroy the Hindu religious traditions and culture, thereby to pave the way for the total Islamisation of Kashmir. In1947 the population of the Kashmiri Pandits was 15 percent in the valley, it came down to 5 percent in 1981 and was reduced to mere 0.1 percent in 1991after forced exodus of Kashmiri Pandits by terrorist organizations. The census of 2001 shows Kashmiri Hindus totaling 1,00, 962. Male 90,870 and female 10,020 ! Another glaring example is that it shows 240,003 vacant census houses in the state. This is a factual position that most of the damaged vacant census houses belong to Kashmiri Pandits. This fact was not reported anywhere else in the country. There has been a continuous disinformation campaign about terrorist violence in Kashmir that the Muslims were subjected to economic deprivations which resulted in wide spread poverty among them. Kashmiri youth felt disgruntled and sick. According to their leadership, this was basis of their gun culture. If this were the whole truth, why did not the youth other than the Muslims in Kashmir and the other two divisions namely Jammu and Ladakh take to guns like their counterpart in the valley. A close analysis of the facts would bear out that the valley enjoyed a more hectic economic development than did the other two divisions of Jammu and Ladakh. That is why different commissions, like Sikri Commission in 1979 and Gajender commission in 1967 had to be appointed to look into the lopsided development in Jammu and Ladakh regions.

The Jammu and Kashmir is a prosperous state which in terms of per capita income is placed third among the Indian states. Again, according to National Sample Survey, Kashmir has the lowest poverty ratio as compared to any state in India. Only 3.5 percent of Kashmir’s population was below poverty line in 1999-2000. The national average was as high as 26.1 percent. Maharashtra is the second richest state in India, but its poverty ratio is 25 percent where as Orrisa has highest poverty ratio at 47.2 percent! On an average Central Per Capita Assistance to a Kashmiri is 8 times more than any other fellow citizen in the country. The terrorist violence raging in Jammu and Kashmir is another ‘Direct Action’ that Pakistan and Muslim secessionists inside the state have launched to force a second partition on India. The campaign of terror spread in Jammu and Kashmir follows the same pattern which the ‘Direct Action’ followed in 1946; genocide of Hindus, their ethnic cleansing by forced exodus from the Muslim majority provinces of India and the destruction of their religious identity. Genocide of Kashmiri Pandits is violation of not only Human Rights but also its Constitutional Rights. In a report on Kashmir by Amnesty International released in December 1993,it said, ”Armed opposition groups in Jammu and Kashmir have been responsible for numerous and grave Human Rights abuses, including hostage taking, assassination of politicians and their families, deliberate killing of civilians including journalists, torture and rape….It urged all such groups to release all hostages and respect Human Rights and humanitarian standards.” The National Human Rights Commission (NHRC) in ruling on the 11th June,1999 stated that, “ The commission is constrained to observe that acts akin to genocide have occurred with respect to Kashmiri Pandits.’ UN Secretary General at the 60th session of the commission on Human Rights in Geneva on 7th April,2004 observed,” When civilians are deliberately targeted because they belong to a particular community, we are in the presence of potential, if not actual genocide.” It is a pity, that in-spite of repeated requests no enquiry commission has been constituted by state or central government so far to bring culprits to book who are responsible for genocide and ethnic cleansing of Kashmiri Pandits, nor the Hon’ble Supreme Court of India has acted so far.

Kashmiri Pandits have suffered enough oppression, economic deprivation and religious persecution during last five decades in the state. The Muslimisation of the state ensured by Article 370 has ravaged them beyond repair. They lost their roots, spiritual philosophy, culture, ancient heritage, tradition, history and over all their identity. They lost every thing overnight. A person displaced under force and oppression is rightfully a claimant of adequate relief and compensation. All of us are aware that when huge chunks of population in a country get displaced to facilitate construction of a big dam or a development project, the people displaced are given substantial compensation and even much better conditions of life than they were having at the original place, that is exactly how earth-quake victims are being looked after. What have the Kashmiri Pandits got instead?

Kashmir problem for anyone in the world may be a political problem. For us, it is an ideological one. It is a clandestine struggle between the forces of liberty, democracy, freedom of conscience versus the forces of bigotry and thought control. We have to be with the forces of progress, new world, a world of scientific understanding and not to be part of blinding faith, intolerance, medieval darkness. Kashmir for us is a choice—a history of nearly 6000 years, which produced great poets, historians, litterateurs, sages and saints much before the Muslim rulers came on the scene. There is no option but save Kashmir and its great culture heritage from terrorism.

Of late, the Srinagar-Muzaffarabad bus service and opening of different points on LOC for meeting point of divided families and relief supply after the devastating earth-quake, will bring the people living on either side of LOC closer. They in turn will access each other’s democratic freedoms, self-governance, land reforms and development of respective regions. It is unfortunate that people living on other side of LOC have not tasted much of these realties. Sardar Shaukat Ali Kashmiri, Chairman, United Kashmir People’s National Party and Secretary General, International Kashmir Alliance, while quoting the July,2004,reportof the Human Rights Commission of Pakistan said, ” fundamental rights such as freedom of movement, freedom of expression, freedom of assembly and freedom of association are often fringed. There is limited tolerance of divergent views. There are seven or eight political parties in Azad Kashmir but the State’s constitution and election laws debar those who do not subscribe to the so-called accession of Azad Kashmir to Pakistan, from participating in election. Handpicked nominees of the military regime in Islamabad are thrust upon the people as the head of the government, disregarding people’s wishes.” Comparatively, Indian side of Kashmir is much better off politically and economically. The only fear is that once people realize this fact, the terrorists will become panicky. Secondly, bus service is primarily aimed at uniting divided families on the either side of LOC. There is hardly any valley -based, Kashmiri speaking divided family. So the cross-border bon-homie may become cross-border terrorism.

The Indian people and the government of India have to realize the danger which is posed by Muslim communalism and the millitarisation of fundamentalists in the state. Even as the present spurt in terrorist violence, which comes as a severe rebuff to congress chief minister’s Kashmir policy and opening of boarders along LOC, is further pushing Jammu & Kashmir deep into chaos. Today again, leaders are refusing to learn anything from the past. Politicians recognize no limits to their greed to hold on to power and ensure votes at the next hustings even they fail miserably in their gimmicks.

The demand for ‘greater Autonomy’ after 30 years of the ‘Kashmir Accord’ between Late Smt. Indra Gandhi and Sheikh Mohammad Abdullah on February 24, 1975 has once again brought into sharp focus the machination and double talk of National Conference. It is unfortunate the Peoples Democratic Party leaders have also raised this bogy. They have gone a step further by demanding Pre-1953 status and arguing that this will be ultimate Confidence Building Measure

(CBM) for the people (Muslims) of Kashmir. The Hindus and Buddhists of the state, who put together constitute about 55 percent of the population, expressed sharp disapproval of any compromise on the issue of autonomy. The Pandits of Kashmir, smouldering in exile, denounced the demand for the restoration of 1953 status, as a tactical manoeuvre to prepare the ground for the separation of the Kashmir valley and Muslim majority regions of the Jammu province from India for which the inspiration came from several western powers. The years that flowed ‘Kashmir Accord,’ the secessionist movement gathered greater strength. A whole generation of the Muslim youth was socialized to the Muslim quest for freedom from India and the unification of the state with Pakistan. The autonomy of the state, envisaged by ‘Article 370’ provided the political context, in which Muslim separatism was recognized as a legitimate expression of Muslim aspirations to freedom. Interestingly, the Muslim secessionist forces and terrorist organizations expressed subdued disapproval of the demand of ‘greater autonomy’ reiterating their claim for self-determination, expressing doubts about the ultimate advantage, the autonomy of the state would provide them.

The government of India should deal firmly with all religious and ideological separatism which have impeded the integration of the political culture of India. If Indian government does not, right now, reverse its policies of accepting religious separatism, as a gradient of its secular organization, it will not be after long, that it will have to face the prospect of a second partition. The cry for the second partition of India has already been raised in Jammu and Kashmir.

Kashmiri Pandits, therefore, demand that they must have a say in the determination of the future of the state and assert that no political settlement to which they are not party shall be acceptable to them. Article 370 must be abrogated. Full political, constitutional and other guarantees against any further injustices and oppression against them must be assured. Peace in Kashmir cannot be restored if they are left smouldering in their exile. The community in its exile, for last 16 years, is faced by problems of rehabilitation, unemployment, poverty and the crisis of their identity. Lastly, terrorist violence should be dealt firmly to prepare appropriate conditions for the return of Pandits to their ancestral home. Kashmiri Pandits despite of having suffered untold miseries, in the past, have maintained distinct community features. Kashmiri Pandit is a class-less society of Brahmans without any further caste and creed. A farmer, a trader, a teacher, a doctor, an advocate, an employee, everyone is of same class of Kashmiri Pandit. Perhaps this is the greatest strength of its survival!

Let us join our hands to improve quality of life of our community members. Let us co-ordinate and raise our voice and speak truth about Kashmir. Let us work together for economic and political rehabilitation of our community.



CHAMAN LAL GADOO

HUMAN RIGHTS VIOLATIONS IN KASHMIR

HUMAN RIGHTS VIOLATIONS IN KASHMIR

The Kashmir Valley is in grip of terrorist trauma engineered by Pakistan. In fact, it is a low cost proxy war declared by Pakistan against India to grab Kashmir. The grimmest fallout of this atrocious Pak operation is the total exodus of the Hindu minority from Kashmir Valley. It has threatened the unity of India and the very survival of Kashmiri Hindu minority. They have been uprooted from Kashmir Valley. The future is bleak and their existence is in danger. The following census figures speak volumes:

Year Muslims Hindus Others

1941 83% 15% 2%

1981 92% 5% 3%

1991 97% 0.1 % 2.9%

At present over 300,000 of them (about 78,000 families) are either residing in temporary relief camps at Jammu, Delhi, Chandigarh or Amritsar or have made their own arrangements in various parts of India. This figure of over 300,000 excludes over 10000 Muslims, who also have been forced by the denial of free expression and circumstances to leave the Valley of Kashmir to seek refuge in India.

PREFACE

We hold no brief for any one violating human rights anywhere. All we submit is that the small and helpless community of Kashmiri Pandits, along with Kashmiris of other communities suffering for their belief in secularism, nationalism and democracy, are the worst victims of human rights violations in Kashmir. They continue to suffer the aftermath of this tragedy, living a miserable life i n townships of tattered tents, and other camps, in Jammu and other parts of the country. But nobody hears their anguished cry while the terrorists, their supporters in the state and Pakistan have succeeded in generating worldwide awareness about the hardship faced by some Muslims in Kashmir for harboring and helping terrorists. Organizations like the Amnesty International and Asia Watch while raising howls about the difficulties of Kashmiri Muslims make no more than passing references to the inhuman brutality with which the Muslim terrorists in the state massacred large numbers of Kashmiri Hindus and indulged in rape, arson and plunder forcing them to flee their homes of hundreds of years. The latest incident is the shooting down of a hundred year old Kashmiri Pandit in Wanpora in the first week of June, 1993. All this is sought to be hidden behind the smoke screen of "human rights violations by the security forces" and basic questions are clouded in a desperate attempt to keep the world in dark about the actual happenings in the name of insurgency against the Center.

It is therefore essential to make a proper assessment of violations of, whose human rights in Jammu and Kashmir. While doing so, facts must be treated as sacred and not twisted for dramatic effect to serve sectarian political ends. Unfortunately, the assessments made by some of the Human Rights organizations are faulted in their very fundamentals because such assessments have been based on avowedly partisan evidence. Most of the evidence has been collected in Pakistan-occupied part of the Jammu and Kashmir State and from other sources close to the terrorists. Some of these "watch dog" groups make little attempt to conceal the fact that they are functioning as apologists for Muslim terrorists operating in the State at the behest of Pakistan.

Nothing else can explain their studied indifference to the plight of more than three lakh Hindus whose "rights", such as they were in a regime which was already Islamic except in name, were trampled under the jack-boots of the Pakistan-aided marauders in collaboration with local Muslim fundamentalist and secessionist elements. The magnitude of misdeeds of the terrorists have been of such proportions that Asia Watch found it difficult to completely conceal them and had grudgingly to concede that they were guilty of excesses in the name of violent opposition. It is a tragedy that even after the Asia Watch report was made public certain people in this country fell prey to the Pakistani and terrorist disinformation and have developed a mind-set totally indifferent to the plight of Kashmiri Hindus who have been reduced to beggary in their own country for their patriotism, tolerance and secular ideals. The flood of publicity mounted by the mentors submerged the sad tale of their suffering, so much so that when the specter of "demographic change" was recently raised, nobody asked: Has demographic change not already been brought about in the state? Has it not been made a totally Muslim Kashmir now with the elimination of the Pandits?

Design To Break Up India

Terrorism is a violation of human rights, whatever its political objectives. Terrorism in Jammu and Kashmir motivated by ideological commitments to a Muslim crusade is a greater violation of human rights. The Universal Declaration of Human Rights, it must not be forgotten, was adopted by the world community precisely to save mankind from the scourge of crusades; the second world war was a war of crusades.

There is an imperative necessity for a bold and unconventional endeavor to identify the content and contours of violence which has ravaged Jammu and Kashmir State and describe the perspectives in which the infringements of human rights deserve to be assessed. Any enquiry and assessment restricted to parameters predetermined by political considerations and social motivations and preconceived notions of the nature of the violence and strife in the state, is bound to be self-defeating. Human judgments which are presumed to be universal, as the Universal Declaration of Human Rights, underline generally accepted norms and standards of human behavior and not such norms and standards which are arbitrarily devised. There is always a danger in shifting parameters and judgments in respect of human rights because shifting parameters and judgments are incompatible with and destructive of the universality of such rights.

It will be a travesty of human history to ignore the crucial factor of terrorist violence in Kashmir which must ultimately determine the context in which the violation of human rights has taken place. The boundaries of state action to contain terrorism must be viewed in the broad context of the United Nations Charter, the International Covenants and the resolutions of the General Assembly and the Security Council on terrorism. An enquiry into human rights violations in Jammu and Kashmir cannot be confined to narrowly local and narrowly dated frames of reference.

The terrorist violence unleashed in Jammu and Kashmir by various terrorist organizations and the state of Pakistan, Is by itself a violation of human rights. The Muslim crusade which seeks to exterminate the religious and ethnic minorities In Jammu and Kashmir and establish the primacy of Islam in the government and the society of the state, contravenes the principle of the due process of law which is the basis of the Universal Declaration of Human Rights. Political terrorism, whatever its Ideology and objectives, is a crime against International Law, a crime against humanity, a crime against the law of war and a crime against the Universal Declaration of Human Rights.

Terrorist violence in Jammu and Kashmir has several dimensions which have a direct bearing on human rights in the state.

In the first place, terrorism in Jammu and Kashmir is a process of political violence which has specified political commitments aimed to separate Jammu and Kashmir state from India and secure its annexation to Pakistan. It is the culmination of the Muslim struggle in pre-partition India for the homeland of Pakistan, which claimed Jammu and Kashmir on account of the Muslim majority character of its population. It is a religious crusade to complete the partition of India which it is claimed is 'incomplete' so long as Jammu and Kashmir is not merged with Pakistan. It must clearly be understood that this terrorist violence is not aimed at effecting any change in the existing political system, economic organization or social relationships. It is neither an expression of political dissent, nor is it apolitical movement aimed to replace the existing sets of political instruments in the state. It has an international content as it is aimed at cutting off a part of the Indian nation and secure its annexation to the state of Pakistan.

The Muslims in Kashmir are the ruling elite of the state. They dominate its entire economic organization and enjoy communal precedence in all social forums. Islam is virtually the official religion of the state. Whereas the Muslims constitute a little more than half the population of the State, they possess three-fourths share In legislative bodies, administrative organizations and all the local Government Institutions. In the Kashmir province, the Hindus have no elected representation In the State Legislature, nor do they have any elected representation in the local bodies. They constitute less than five per cent of the administrative services of the State and have less than one percent share In the higher cadres of the state administration. Muslims monopolize 94 per cent of the state services In Kashmir. The Hindus of Kashmir province have absolutely no share In the decision making clusters of the state Government, which have always been constituted by the Muslims of the Kashmir Province. More than 90 per cent of the admissions to professional, technical and other educational Institutions are reserved for Muslims in one form or the other purely on communal basis. The Hindus, Sikhs and other minorities share a bare 8 per cent of the educational facilities that the State provides.

The Muslims own and control the entire economic and Industrial structure of the Kashmir Province. They own 96 per cent of the agricultural land, orchards and other urban landed estates. They enjoy a monopoly over the entire industrial organization, trade, commerce, financial resources and exports of the province of Kashmir. They have complete monopoly in trading in fruits, carpets, shawls, wood-work, woolens, silk etc. The Hindus in Kashmir have never been allowed to have any share In the tourist industry, the transport organization, concessionary contracts for the construction of the State property, roads and buildings and the licenses for Imports and exports which the state Government has been lavishly distributing among the Muslims.

Evidently, terrorist violence in the State is not local in content or outlook. Its objectives have transnational implications and its aim is the separation of Jammu and Kashmir State from India and, as a consequence, open the way for the disintegration of the Indian Union.

Violation of Human Rights

The political content of the terrorist violence has a direct effect on human rights as it involves militants' strategies which cannot but infringe the principles which form the basis of human rights. These strategies include:

1. Liquidation of the Indian support structures in the state, involving elimination of the people of all communities including Muslims who constitute such support structures;

2. suppression of all political dissent and opposition by fear,

3. oppression and mental torture of people who do not support terrorism;

4. liquidation of civil population which extends help to security forces in their operations against terrorists;

5. communalization of the society aimed to suppress opinion opposed to the secession of the state;

6 . conduct of military operations by the terrorists against the security forces of the state in violation of the laws of war.

The second major dimension of terrorism in Jammu and Kashmir is the terrorists' aim to exterminate Hindu population in the Kashmir valley because Hindus do not accept the secession of the state from India and its annexation to Pakistan nor do they accept to be governed by the authority which derives its sanction from the law and precedent of Islam. The Hindus have always supported accession of the state to India. They have, undeniably, formed the most powerful support base for India in Kashmir. Hindus in the valley rose unitedly against the invasion of the state in 1947, and fought shoulder to shoulder with the Indian soldiers against the infiltrators from Pakistan in 1965. They were always in the forefront of the struggle against secessionism, communalism, fundamentalism and the various movements for annexation of the state to Pakistan.

In the present turmoil the strategies used in the terrorist operations against the Hindus in Kashmir include:

1. The extermination of Hindus;

2. Subjection of Hindus to brutal torture to instill fear among them in order to achieve their submission to the terrorists and their exodus from Kashmir;

3. Flushing out such Hindus who refuse to submit to the terrorist dictates, by force, fear of death, fear of conversion and criminal assault on their women;

4. Destruction of the residential houses of the Hindus Who migrate and the appropriation of their business establishments to ensure that they do not return;

5. Attachment of their landed property;

6. Destruction of the social base of the Hindus by desecration and destruction of their places of worship, shrines and temples;

7. Appropriation of the property of the Hindu shrines and its attachment to the Muslim religious endowments;

8. Declaration of a religious crusade against the Hindus.

Pakistan Factor

The third and the most crucial aspect of terrorism in the State is the participation of Pakistan in the terrorist violence. Pakistan has a history of sponsoring terrorist violence in its neighboring countries including India. It is openly committed to the export of Islamic revolution to non-Muslim states and militarization of pan-Islamic fundamentalism in South Asia. Pakistan has always used Islam as an ideological instrument for its territorial expansion. It has claimed Kashmir in the name of the Muslim nation and the unity of the Muslims Ummah. Pakistan is at present a conventional, organized and international base for the militarization of pan-Islamic fundamentalism and Muslim terrorism in Asia. There is enough proof of the complicity of Pakistan in the terrorist activity in Jammu and Kashmir, which cannot be disregarded.

The induction of terrorism in Jammu and Kashmir by Pakistan is its third attempt to cut off Jammu and Kashmir from India and annex it to its territories. In October 1947, Pakistan sent thousands of armed forces and irregular commandos into the State to annex it. Were it not for the heroic resistance of the state troops led by the Chief of the Army Staff of the State, Brigadier Rajender Singh, who resisted the advance of invading forces till the State acceded to India and the Indian troops joined the battle, the story of the State would have been different. About thirty thousand Hindus and Sikhs were slaughtered by the invading hordes in the territories of the State overrun b them. Hundreds of thousands of them were uprooted and displaced. That story is still untold. In 1965, Pakistan inducted thousands of its trained commandos in the garb of local Muslims into the State to unleash a Muslim rebellion against India. The infiltrators spread all over the valley, penetrated into Srinagar. but due to the lack of support from local Muslim population and prompt military action taken by Government of India, the infiltrators sneaked back to Pakistan after war broke out between the two countries.

The present terrorist violence in Jammu and Kashmir is the third attempt by Pakistan to break up India and annex Jammu and Kashmir. This time the technique of military intervention is different; the flanks of terrorist organizations are recruited from the local Muslim population and after being trained and armed in Pakistan are reinducted into the State, to carry on the Islamic crusade, Jihad, against India. Large numbers of armed commandos consisting of personnel of the army and intelligence services of Pakistan, and the various troop formations raised in the occupied territories of so-called Azad Kashmir have also been inducted into the State to help the terrorist elements.

The consolidation of the pan-Islamic fundamentalism and its militarization in South Asia has been effectively used by Pakistan to export Islamic revolution' to Jammu and Kashmir. Once the Jihad or the Islamic crusade for the liberation of the State triumphs, Jammu and Kashmir will as a part of the fundamental unity of the Muslims, join the Muslim nation of Pakistan. That is the reason why Pakistan projected Jammu and Kashmir Liberation Front in the first phase of terrorism in Kashmir, ostensibly to create an impression that the Muslims have launched an armed struggle in the State to liberate it from India. The truth is that Jammu and Kashmir Liberation Front was sponsored by Pakistan to impart a more militant direction to demand for plebiscite in the State. It received arms and funds from intelligence agencies of Pakistan and always acted under the instructions of the intelligence services of that country. Once the terrorist violence in the state spread, Pakistan inducted the more powerful terrorist flanks into the state, like the Hizbul Mujahidin, the militant outfit of Jamaat-i-Islami, Al Badar, exclusively entrusted with the task of liquidating the Hindus, and the other terrorist organizations like Al Umar, Allah Tigers, Janbaz Force, Hizb Ullah and several other terrorist groups all committed to the accession of the state to Pakistan.

Mass Massacres

The terrorist violence in Kashmir has involved mass massacre of the people of the State, destruction of their property and genocide of Hindus and their exodus from Kashmir. The death and destruction of innocent people, genocide of minorities and conduct of a war of attrition in violation of the laws of war are crimes against humanity and international law, besides being violation of human rights. The terrorist violence in Jammu and Kashmir, on a well designed pattern, has led to several consequences which are inextricably interlinked with the violation of human rights. The pattern in which terrorism has manifested itself in Jammu and Kashmir has several aspects, some of which are characteristically original to the political violence unleashed by the various terrorist organizations and Pakistan in Jammu and Kashmir. These aspects are

(a) mass massacre;

(b) genocide of Hindus and

(c) atrocities committed by terrorists.

It is generally presumed that mass massacre involves a hundred or more political killings. Mass murder is not a precise term. It is arbitrarily defined here as something approaching "a hundred or more political deaths". In Jammu and Kashmir terrorism has involved the liquidation of thousands of people, including the Hindus, the Muslims, the security personnel and the strategic staff of the State government and other administrative bodies. A computation of the data on the terrorist killings from the local newspapers published from Srinagar and other townships in Kashmir reveals that the number of the people, other than Hindus, killed by the terrorists, runs into several thousand.

The main targets of terrorist violence in Kashmir, have been

1. the Hindus;

2. the Muslims opposed to secession, the Muslims accused by terrorists of acting as "agents of India" and "informers" and those alleged to have spied for the security forces of the state;

3. Hindu employees of the State government, the Hindu employees of the government of India posted in the State, Hindu technical staff of Government of India installations of communications, police, radio and television, Hindu technical staff of the industrial corporations and the Hindu personnel of the security organizations of the state as well as the personnel of the Central paramilitary forces deployed in the State.

The Hindus of Kashmir, among them mainly the Kashmiri Pandits, have been killed in large numbers irrespective of their age, profession and political commitments. The killing of Muslims has been specifically selective and except for a few doubtful cases most of the Muslims killed have been those who have been opposed to secession and who did not support Pakistan's claim to Jammu and Kashmir State. More notable of the Muslims who have been assassinated by terrorists include Maulana Masoodi, a veteran freedom fighter and a close associate of Sheikh Mohammad Abdullah; Maulvi Farooq, Mirwaiz of Kashmir; Mir Mustafa, a former member of state Legislature; Pir Hissam-ud-Din Bandey and Abdul Jabbar, former ministers of the State government; Abdul Sattar, Ranjoor, General Secretary of the Communist Party of India in the State; Mohd. Shaban, Editor, Al Safa, an Urdu daily; Prof. Mushir-ul-Haq, Vice-Chancellor of Kashmir University; and Mohd. Din Bandey, the Muslim Gujjar who reportedly gave the first information about the ingress of infiltrators from Pakistan in 1965. Among the many other Muslims killed by the terrorists are former members of the State Legislature, National Conference and Indian National Congress activists, and officers of the State police.

Terrorism has taken a very heavy toll of the personnel of the security organizations of the State. Barring variations in official account of the security personnel killed and the account given by the local press as well as the figures made public by the terrorists themselves, a fairly large numbers of the personnel of the para-military forces and the Indian army have been killed in the hit and run guerrilla attacks mounted on them by terrorists. The attacks have involved sudden assaults on para-military pickets in civil areas, ambush of army and para-military convoys, mine blasts, rocket and bomb blasts on police stations and other security installations.

Genocide Of Hindus

Genocide is the destruction in whole or in part of a national, ethnic, racial or religious group. The United Nations General Assembly approved a resolution on 11th December, 1946, declaring genocide a crime under International Law. A convention on the Prevention and Punishment of Genocide adopted by the General Assembly came into effect on 12th January, 1951. The Convention proclaims genocide as a crime against International Law. The Convention lists destruction of an ethnic, racial or religious group as genocide. Specifically, genocide includes:

1. Killing members of a community or a group because of their affiliations;

2. Causing bodily or mental harm to the members of a community or a group;

3. Deliberately inflicting conditions on the community or the group to bring about its physical destruction;

4. Imposing measures to prevent births in the community or the group;

5. Forcibly transferring children from one group to another.

The terrorist organizations in the State and those operating from Pakistan have unleashed an organized campaign to exterminate the Hindus in Kashmir. Besides the obligation to prosecute a religious war against them, terrorists have sought to achieve several tactical advantages in eliminating Hindus. Hindus used to form a vital and powerful base for India in Kashmir. They have fought the secessionist movements in the State with their bare teeth. They alone have resisted the onslaught of the pan-Islamic fundamentalism as well as the Islamization of the Government and the society in the State. They have always been instrumental in keeping the feedback channels of Government of India open and maintaining a regular and uninterrupted flow of information to its agencies.

The mass attack on the Hindus began in January, 1990, and by the onset of August, 1990 more than eight hundred of them had been murdered in cold blood. Most of the victims were innocent people who lived in poverty and persecution under the Muslim dominated constitutional organization of the State. Among those killed, were people from all sections of the society, lawyers, political activists, mediamen, intellectuals, shopkeepers, errand boys and men of small means.

The terrorists killings have been accompanied by torture unheard of in the annals of human history, which tantamount to grave crimes against all law and against humanity. In sheer disregard of the norms of political behavior, generally recognized by civilized nations and now embodied in several international Covenants, the charter of Human Rights Declaration and resolutions of the United Nations General Assembly, the terrorists have inflicted grievous hurt, injury and death / torture on hundreds of Hindus and other dissenters. Torture deaths have been brought about by inhuman practices described below:

1.Strangulation by using steel wires;

2. Hanging;

3. Impaling;

4. Branding with red hot irons,

5. Burning alive;

6. Lynching;

7. Draining of blood in contrived terrorist underground hospitals;

8. Gouging of eyes before assassination;

9. Slicing;

10. Dismemberment of body;

11. Breaking of limbs;

12. Drowning alive;

13. Dragging to death;

14. Slaughter.

Brij Nath Shah was kidnapped on 27th April, 1990 from his home at Sadhu Ganga, Kupwara in Kashmir. Two days later his body was found hanging by a tree. His lips had been stitched.

Sham Lal of Chiragam in Anantnag, Kashmir was kidnapped in May 1990. The hands and the feet of the unfortunate man were chopped off and his skull battered. Sham Lal's dead body was stuffed in a sack and left on the threshold of his house, wherefrom it was recovered by his brother.



Pran Nath of Uttarsu in Anantnag District was kidnapped on 27th May, 1990. His body was found impaled; his chest and feet nailed.

Three officials of the Life Insurance Corporation of India were kidnapped in Srinagar. They were subjected to torture and then confined in an abandoned Kashmiri Hindu migrant house. The house was set ablaze. Two of the officials were burnt alive while the third official escaped with more than 50 percent burns.

One Bhushan Lal of Ompura in Badgam, Kashmir was kidnapped on 27th April 1990. He was tortured and then strangulated to death. His body was found the next day.

Girja, a school teacher at Bandipora, was kidnapped from the house of a Muslim colleague. The unfortunate woman, after being gangraped, was sliced on a mechanical saw.

Scores of the bodies of Hindus were recovered from River Jhelum. Most of them were drowned.

Brij Nath Koul of Hermani of Shopian, an employee of the Agricultural Department and his wife were tied to a speeding vehicle. Their mangled bodies were recovered ten kilometers away from their home.

The dead bodies of several Kashmiri Hindus were salvaged from various places in Kashmir. Their heads had been severed off.

Several dead bodies of Kashmiri Hindus were recovered, which had been branded by hot irons before death. Several bodies were found with eyes gouged out.

The most dastardly and inhuman acts of terrorism were those committed in the hospitals where the Hindus brought in for treatment were either allowed to die for want of treatment or brutally murdered by the doctors and others who collaborated with the terrorists. A number of cases have been reported where injured Hindus were allowed to bleed to death.

Scores of cases have been reported where kidnapped Hindus were drained of their blood and their lives were terminated.

Among the dead in Kashmir, the state Government is yet to disclose the identity of about four hundred dead bodies, recovered by the police and disposed of at its will. The State government is keen to cover the anti-Hindu character of the terrorist violence and has tried to play down the massacre of Hindus. But the fact remains that most of those killed and still unidentified are Hindus. A survey of the migrant population reveals that there are several hundred Kashmiri Pandits, who are missing and are presumed dead.

The worst sacrilege to which the Hindus have been subjected, and the process continues still, is that the kith and kin of the Hindus killed in Kashmir, were not allowed to carry the dead bodies to Jammu for cremation according to Hindu rites. Evidently, the cremation of Hindus in Kashmir could not be carried out according to Hindu rites because the terrorists forbade Hindus to accompany the dead to perform their last rites. The Hindus' dead bodies were actually disposed of by the State police on their own and in total disregard to the injury and hurt the cremation of the dead bodies by the state police, caused to the religious feelings of the bereaved Hindu families.

Exodus in Panic

The rising terror which consumed hundreds of innocent Hindus, the deliberate indifference of the state apparatus infested by pro-Pakistan agents and infiltrators and the failure of Government of India to take effective and firm measures against the terrorists as well as their harbourers, particularly in the ranks of the administrative organization of the state, compelled the Hindus to flee for their lives to Jammu and beyond. By July- September, 1990 more than two lakhs of Hindus had evacuated from their homes leaving their property, land, trade and business behind them. After the exodus, all the Hindu property has been looted and thousands of Hindu houses burnt down. Several Hindu shrines have also been burnt down or destroyed by explosives.

Terrorism is a negation of life, and violation of the norms of human behavior recognized by all civilized people of the world. All value-based violence, which contravenes generally accepted norms of social order, human behavior and right to life and equality of all men, is retrogressive. Judgments which are based upon preferences which violate life, equality of all men and freedom, do not have any revolutionary content. The political violence motivated by ideological commitments whatever their value- content is necessarily retrogressive. There is no freedom which impinges upon freedom, no equality which upholds inequality. There is no life which portends death. Political terrorism even if it is for a religious crusade is as heinous a crime as any other crime against humanity. All political terrorism is organized crime.

Terrorist violence cannot be justified on the ground of its political and ideological motivations or value-basis. International conventions and treaties, even those pertaining to human rights, do not recognize terrorist violence as legitimate political action, arising out of any ideological or political commitments or any value basis. Commitment to separation of Jammu and Kashmir from India to further the cause of Islam and in the name of Muslim unity and brotherhood, to ensure the Muslims in the state the right to decide the future disposition of the state as envisaged by the United Nations Resolutions; commitments to "complete the partition of India" by the accession of the state to Pakistan or commitments to liberate the Muslim majority state of Jammu and Kashmir from India or commitment to establish a Muslim State of Jammu and Kashmir based upon religious precept and precedence cannot legitimize and validate terrorism in Kashmir.

International Law and Terrorism

There is a growing corpus of Municipal as well as International Law and precedent to deal with politically motivated terrorism. The civil jurisprudence and International law generally identify political terrorism as a crime, more serious than traditional civil and international crime. Murder of innocent people, torture deaths, kidnappings, abduction and rape of women are heinous crimes which do not come within the traditional definitions of crime. Many countries have extended their penal codes to most terrorist offenses. Legislation has also been undertaken to provide for special police powers and special judicial procedures to deal with terrorist crime. New special anti-terrorist organizations have been created within police departments and other international security organizations. In many states military participation in police functions has increased. Special military units for possible use in anti-terrorist operations have been created in a number of countries. All these measures have been necessary to combat terrorism and safeguard the lives of law-abiding citizens and innocent people and save states from being broken up by sponsored terrorism. Nations with long democratic traditions including the United States of America, one of the foremost super-states supporting human rights, have always demanded the adoption of severely stringent measures against political terrorism.

It is relevant to note that the United State of America proposed a set of highly stringent rules to deal with terrorism in the draft of an International Convention submitted by the United States Government to the ad-hoc committee of the United Nations on International Terrorism in 1973. Understandably, most of the Muslim States disapproved of the draft convention.

United Nations On Terrorism

The United Nations lists killings, kidnappings, torture and abduction as a crime. According to resolutions of the General Assembly of the United Nations on measures to prevent terrorism, the Nations General Assembly:

1. Unequivocally condemns as criminal all acts, methods and practices of terrorism wherever and by whoever committed including those who jeopardize the friendly relations between states.

2. Deeply deplores the loss of innocent human lives which results from such acts of terrorism.

3. Further deplores the pernicious impact of acts of international terrorism on relations and cooperation among states including cooperation for development.

4. Appeals to all states that have not yet done so to consider becoming party to the existing international conventions relating to various aspects of international terrorism.

5. Invites all states to take all appropriate measures at the national level with a view to the speedy and final elimination of the problem of international terrorism such as the harmonization of domestic legislation with existing international conventions, the fulfillment of assumed international obligations, and the prevention of the preparation and organization in their respective territories of acts directed against the states.

6. Calls upon all states to fulfill their obligations under International Law to refrain from organizing, instigating, assisting or participating in terrorist acts in other states, or acquiescing in activities within their territory directed towards the commission of such acts.

7. Urges all states not to allow in any circumstances to obstruct the application of appropriate law enforcement measures, provided for in the relevant conventions to which they are party, to persons who commit acts of international terrorism covered by those conventions.

8. Further urges all states to cooperate with one another more closely, especially through the exchange of relevant information concerning the prevention and combating of terrorism, apprehension and prosecution or extradition of the perpetrators of such acts, or the incorporation into appropriate bilateral treaties of special clauses, in particular regarding the extradition or prosecution of terrorists.

The security Council adopted a resolution on 18th December, 1985 urging upon all the States to undertake appropriate measures to bring to an end hostage taking, abduction and other forms of terrorism. In the operative part of the Resolution, the Security Council

1. condemned unequivocally all acts of hostage-taking and abduction;

2. called for the immediate safe release of all hostages and abducted persons wherever and by whoever they are being held;

3. affirmed the obligation of all States in whose territory hostages or abducted persons are held, urgently to take all appropriate measures to secure their safe release and to prevent the commission of acts of hostage-taking and abduction in future;

4. urged the further development of international cooperation among States in devising and adopting effective measures which are in accordance with the rules of international law to facilitate the prevention, prosecution and punishment of all acts of hostage-taking and abducting as manifestation of international terrorism.

A number of other resolutions and conventions of the United Nations General Assembly and the Security Council, the Adhoc Committee on International Terrorism, various reports of the Secretary General of the United Nations and the Covenants of various inter-state organizations on political and international terrorism, have urged the members of the international community to undertake stringent and effective legal and administrative measures to combat terrorism. The recommendations envisage the institution of fresh political instruments and modified penal procedures to check terrorism. The Council of Europe produced a Convention on terrorism in 1977, which stipulated that amnesty available to political offenses should not apply to terrorist violence associated with all forms of terrorist acts, assassinations, bomb outrages, rocket attacks and killings by other explosive devices, kidnapping, taking of hostages, hijacking and such other offenses.

Human Rights

In the Charter of the United Nations, the peoples constituting the United Nations, express their determination to reaffirm faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and nations large and small. In 1948, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights as a common standard of achievement for all people and all nations. In 1966, it adopted the United Nations Covenant of Human Rights.

The Universal Declaration of Human Rights stipulates, in several sets of its articles, the inalienable rights of all members of human family. These inalienable rights are grouped around six main principles- Equality of man; Freedom of thought; expression and faith; Due process of law; Freedom of peaceful assembly and association; Representative basis of state power, and Right to a share in the social and economic organization of the state.

The equality of man is fundamental to the Declaration of Human Rights. The Declaration affirms that human rights are universal and applicable without any discrimination. If all human beings, professing different faiths, are born free with equal dignity and rights, no religious, social or political injunction can impose a reservation on the equality of man and discrimination against any people of the world. The equality of man transcends all religious precepts and precedent, social sanction, all ideological commitments and political limitations.

All human beings, the Declaration proclaims, are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. All people are entitled to all rights and freedoms envisaged by the Declaration, without any distinction of any kind, such as race, color, sex, language, religion, political or other status. Every human being has right to life, liberty and security of person. No one shall be subjected to torture or cruel inhuman or degrading treatment or punishment. All people are equal before law and are entitled without any discrimination to equal protection of law.

Due Process Of Law

Due process of law is the basis of the Declaration of Human Rights. Due process embodies seven principles which are basic to all rights. These principles are redressal against the state, no less against the private citizen; freedom from arbitrary arrest; fair trial; presumption of innocence till proved guilty; protection against ex-post facto penalty; respect for privacy and freedom of movement.

The Declaration of Human Rights envisages the freedom of thought, freedom of conscience and religion, freedom of opinion and expression, freedom of peaceful assembly and association. The Universal Declaration of Human Rights proclaims that the will of the people shall be the basis of the authority of the Government which shall be expressed in periodic elections conducted on the basis of universal adult franchise.

The Declaration of Human Rights embraces freedom from want no less than freedom from fear, and envisages for all people right to social security, the right to work, right to free choice of employment, right to just and favorable conditions of work, right to rest and leisure, right to adequate standard of living and right to education.

The Universal Declaration of Human Rights and the United Nations Covenants adopted by the General Assembly in December, 1966, underline themes which involve universal recognition of human rights and not mere juridical protection. The rights envisaged by the Declaration as well as the Covenants are universal in content and therefore, the obligation of their protection is not limited to the authority of the State, but extends to all social and political instruments as well as international organizations. The Declaration and Covenants signify the recognition of a juridical political organization of the world community in which the equality and dignity of man is acknowledged and as a consequence, it is accepted that man has a fundamental right to free movement in search of truth and the attainment of moral good and justice besides the right to a dignified life.

The Universal Declaration of Human Rights is not a partial guarantee and it does not envisage protection for a specific community or a section of the people of the world. The safeguards for human rights are universal and are available to all people of the world irrespective of their nationality, the regime by which they are governed and the religion and the race to which they belong. The Universal Declaration of Human Rights does not envisage protection of the rights of any single community in the world and insulate it against the infringement of the human rights. It does not provide protection only to the Muslims in Jammu and Kashmir against violation of their rights; it extends protection to all the communities in the state, more so, the Hindus and other minorities, who are more exposed to religious, political and economic dominance of the Muslim majority of the State. Genocide, forced mass exodus of minorities from their homes, and torture are grave violation of human rights. The Universal Declaration of Human Rights protects the Muslims in Jammu and Kashmir against the infringement of their rights, but it also envisages protection for Hindus and other ethnic and religious minorities in the State against extermination, religious persecution and slavery because they refuse to submit to precedents of a Muslim State. The Declaration is a guarantee against all ideological aggrandizement including precedence claimed by the Muslims in a Muslim State.

The Muslim terrorist crusade in Jammu and Kashmir is aimed to:

a) merge the state into the Muslim nation of Pakistan on the basis of its Muslim majority;

b) convert it into a Muslim State governed in accordance with the religious precepts of Islam; and

c) restrict human rights of all ethnic and religious minorities within the injunction of the Muslim State.

The crusade is a negation of human rights. All religious crusades which seek to establish religious precedence including the Muslim Jihad and the militarization of the pan-Islamic fundamentalism violate the Declaration of Human Rights. The rights envisaged by Declaration of Human Rights are irreconcilable to all political regimes which are based upon religious precept and precedent. Fundamental Rights, including human rights, conflict with restricted citizenship and all forms of religious protectorate.

The Declaration of Human Rights does not underline the guarantees against civil jurisdiction alone. The human rights are fundamental rights; they are also civil rights. The protection envisaged by human rights imposes a limitation on the arbitrary exercise of state power; it also imposes a limitation on the exercise of authority by all regimes including instruments of social control, private citizens, foreign states and international organizations. The terrorist organizations in the State, the Muslim crusade for a second partition of India and the state of Pakistan cannot escape the liability for the violation of human rights in the Jammu and Kashmir State.

The responsibility of violation of human rights in the Jammu and Kashmir state rests upon -

1. All the terrorist organizations in the State;

2. The Muslim organizations and the para-military outfits which aid and support terrorism;

3. The political regime in the part of Jammu and Kashmir occupied by Pakistan; and

4. The State of Pakistan.

Political terrorism is condemned by the United Nations as a crime against the rights of man. Terrorist killings, kidnapping, torture, hostage-taking, abduction are listed as grave crimes against humanity. The General Assembly denounces all acts of terrorism which endanger or take innocent lives, jeopardize fundamental freedoms and impair the dignity of human beings.

Failure of the Indian State

The Jammu and Kashmir Government and Government of India have failed to take adequate and necessary measures to suppress terrorism in the state. In spite of increasing terrorist violence during the fall of 1989, the State Government stubbornly refused to take any action against the growing terrorist menace. During 1989 sixteen hundred violent incidents including 351 bomb blasts took place in Kashmir province. During the first eighteen days of January 1990, 319 violent incidents, 21 armed attacks, 114 bomb blasts and 112 acts of arson and 12 outbreaks of mob violence took place in the state. The Government reaction to the terrorist violence is reflected by the fact that when Shabir Ahmed Shah a militant leader was arrested in September 1989, the Deputy Commissioner refused to sign the warrant of detention; later on the Deputy Commissioner of District Anantnag to which Shah belonged also refused to sign the warrant. The treachery against the Human Rights did not end there. The Advocate General did not appear before the Court to represent the case, shifting his responsibility to the Additional Advocate General and the Government Counsel. They too refused to appear before the Court.

The terrorist violence spread death, and hundreds of innocent Hindus were mowed down by the terrorist bullets but none of the high officials of the state Government was brought to book for having abetted the terrorist assault on human rights.

State's Inaction

The State Government and the Government of India have an obligation under the Universal Declaration of Human Rights, the various international Covenants and the United Nations Resolutions, to deal firmly with terrorist violence. Neither the State Government which is vested with the powers to maintain law and order in the state in the Indian federal division of powers, nor the Union Government which assumed all powers of the administration to itself in consequence of promulgation of President's rule in the State, adopted any of the measures mentioned above to deal firmly with the terrorist violence. Terrorist crime is still dealt with as an ordinary crime. Trial procedures have not been changed to meet the threat of crimes committed by the terrorist; no special anti-terrorist organizations have been instituted within the police department or within the security structures of the State.

TADA is a farce. None of the existing penal laws and procedures have been amended to cover crimes committed outside the State and reach the training nests in Pakistan. No special organization has been established at the national level to coordinate national efforts against terrorists. Both the State Government and the Union Government have not opted for military participation in police functions nor have any special military units for possible use in dealing with the terrorists been constituted. No special powers except those provided to deal with the extraordinary situation of terrorist violence, have been vested with the security forces and no security organization has been empowered to take any pre-emptive action against terrorist violence, so much so that the police force is empowered to fire only when they are attacked, leaving the initiative of surprise with the terrorists. All this is being done in spite of the internationally recognized obligation to change the existing penal law and procedures to meet the terrorist threat

Thousands of innocent lives could have been saved, if the State and Union Government had taken adequate measures which the world community, the civilized nations have adopted to deal with the political terrorism.

The local newspapers are a testimony to the death and destruction of Hindus and other innocent civilians who have been victimized by the various terrorist flanks and who could be saved if powers were given to the security forces to take pre-emptive action. Thousands of innocent lives have been taken by the terrorists and thousands of Hindus have been uprooted from their homes. They are languishing in refugee camps in Jammu and other parts of India. Their right to life, their homes and their freedom is as sacrosanct as any other human right listed in the Universal Declaration of Human Rights.

APPEAL

We appeal to all Human Rights Organizations.

We appeal to the conscience of the world to prevail upon India to:

a) put an end to political terrorism in Jammu and Kashmir so that the extermination and death of Hindu minorities and other innocent people is stopped immediately and hundreds of thousands of Hindus refugees are able to return to their homes in Kashmir, and

b) indict pan-Islamic fundamentalist organizations and terrorists organizations in Jammu and Kashmir which are responsible for terrorist violence in Kashmir, and the State of Pakistan which has sponsored these organizations by providing training, arms and funds to the terrorists in Kashmir, for crimes against humanity and International Law and crimes against Human Rights.

KASHMIR - GREATER AUTONOMY

Kashmir: Greater Autonomy

by Dr. M. K. Teng, C. L. Gadoo

Kashmir : Greater Autonomy

Terrorism in Jammu and Kashmir has almost broken up the national consensus on major functional attributes of Parliamentary government in Jammu and Kashmir. There is a deep difference of opinion about the feasibility of a political package on 'greater autonomy' to the State; Hindus and the other minorities, about 46 percent of the population of the State, opposed to any restructurisation of the existing constitutional relations between the Union and the State, and the Muslims uncertain of whether the so-called package of autonomy would be acceptable to militant regimes as a basis for settlement with the Indian Govemment. Perhaps, the Govemment of India believes that it can substitute 'greater autonomy' for the 'right of self-determination', that the Muslim secessionist forces, militarised by Pakistan in 1989-90, have been demanding for the last five decades. The former Prime Minister, Narsimha Rao, went so far as to suggest, that the Congress Government would concede "Azadi, short of Independence" to meet Muslim separatism, at least half-way, exactly in the same manner as the Congress had offered to concede a Muslim State within India, when it accepted the Cabinet Mission Plan in 1946.

The acceptance of the separate identity of the Muslim majority provinces proposed by the Cabinet Mission Plan led to the partition of India in 1947. The acceptance of the 'autonomy of the State', which, evidently, is presumed to be based on exclusion of Jammu and Kashmir State from the Indian constitutional organisation, may lead to the second partition of India.

The Government of India appears to have overlooked the dangerous portent of forcing a restructurisation of the existing constitutional relations between the State and the Indian Union and exclude the State from the constitutional organisation of India, to push it back into the position of isolation in which it was placed from 1947 to 1954. In the new setting created by fundamentalisation of secessionist movements in the State and their militarisation by Pakistan, the exclusion of the State from the Indian constitutional organisation, which the demand for autonomy actually aims to achieve, will be a prelude to the disengagement of the State from India. The recognition of Jammu and Kashmir, as a separate Muslim identity, based upon the Muslim majority character of its population, repudiates the Indian commitment to secularism and integration of the Indian people on the basis of the fundamental right to equality. Perhaps, it is not fully realised that Muslimisation of Jammu and Kashmir, the only Muslim majority State in India, would eventually disrupt the foundations of the Indian political culture and threaten not only the secular values of the Indian nation but its unity as well.

DISTORTION OF HISTORY

Maharaja Hari Singh, the ruler of Jammu and Kashmir State, signed the same standard form of the Instrument of Accession in October 1947, which the other Indian rulers signed to accede to the then Indian Dominion. The Instrument of Accession was evolved by the States Department, headed by Vallabh Bhai Patel, and was based upon the principles the Cabinet Mission had stipulated for the accession of the Indian States to the All India federation. All the rulers of the acceding States retained all the residuary powers of government and the Instrument of Accession they signed underlined the delegation of powers to the Dominion Govemment in respect of foreign affairs, defence and communications only. Among the other rulers, Hari Singh too retained the residuary powers of the government, and the Instrument of Accession he signed envisaged the delegation of powers to the Dominion Government of India in respect of foreign affairs, defence and communications. The Instrument of Accession did not bind any acceding State, including Jammu and Kashmir, to accept the future constitution of India.

No separate or special provisions were incorporated in the Instrument of Accession signed by Hari Singh and there was no precondition or agreement, specially accepted by the Government of India to any separate and special constitutional arrangement, to the exclusion of the other acceding States.

That the State Department of the Dominion Government, or the ruler of the State or the Congress leadership accepted any condition that Jammu and Kashmir would be provided a special constitutional position or any particular brand of autonomy or would be recognised as a separate Muslim identity, is a travesty of history. Neither Nehru, nor Patel gave any assurance to the Conference leaders that the Jammu and Kashmir State would be recognised as a separate constitutional entity because of the Muslim majority in its population.

When the invading armies of Pakistan were fast approaching Srinagar, the Prime Minister of Jammu and Kashmir, Mehar Chand Mahajan, arrived in Delhi, with a request from Hari Singh for help against the invaders. Mahajan was instruced to inform the Government of India that the Maharaja had decided to accede to the Indian Dominion and accepted to transfer whatever authority he would be required to make in favour of the National Conference. Sheikh Mohammad Abdullah was in Delhi and neither he nor Nehru laid any conditions on Mahajan in respect of the future constitution of the State. Mahajan too did not make any commitment on the separate Muslim identity of Jammu and Kashmir or its autonomy. Nehru sought a substantial transfer of authority to the National Conference which was in consonance with the pledges that the Congress had given to the people of all Princely States. The Congress was committed to replace personal rule, which characterised the political organisation of the States, by representative institutions on the basis of administrative responsibility which was accepted for the reorganisation of the governments in the Indian Provinces. Jammu and Kashmir was not recognised as an exception here also.

After accession of the State to India, an Emergency Administration, headed by Sheikh Mohammad Abdullah, was constituted by Hari Singh on 30 October 1947, to deal with the situation of crisis the invasion had created. In June 1948, The Emergency Administration was dissolved and replaced by an Interim Government, formed by the National Conference and headed by Sheikh Mohammad Abdullah.

Unfortunately lies have been multiplied during the last four decades to distort the history of those crucial years and lies are being retold to justify the treachery and blackmail, which characterised the atrocious process of forcing the exclusion of the State from the Indian constitutional organisation in 1950, when the Indian Constitution was adopted.



INSTRUMENT OF ACCESSION

The Instrument of Accession, which the rulers of the Princely States executed to join the Indian Dominion, reserved them the right to convene Constituent Assemblies to frame constitutions for their respective governments. The ruler of the Jammu and Kashmir also reserved the right to convene a Constituent Assembly to frame a constitution for his government. The Constituent Assembly of India, was by mutual consensus of the Premiers of the States and the representatives of the Constituent Assembly, entrusted with the task of evolving a model constitution, which the Constituent Assemblies of the States would follow in order to avoid any conflict between the Constitution of India and the constitutions of the States. Constituent Assemblies were convened in the Mysore State, the States Union of Saurashtra and the States Union of Travancore-Cochin.

In 1949, an extraordinary decision was taken by the Premiers of the States in a Conference held in Delhi. They decided to entrust to the Constituent Assembly of India the task of framing a uniform set of constitutional provisions for all the States. The constitutional provisions for the States, the Conference decided, would be incorporated in the Constitution of India.

The National Conference leaders did not accept the decision of the Premiers' Conference and insisted upon convocation of a separate Constituent Assembly for Jammu and Kashmir. Consequently, a Conference of the Conference leaders and representatives of the Dominion Government, in which Nehru and Sheikh Mohammad Abdullah participated, was convened in Delhi, shortly after the Premiers' Conference. A number of issues pertaining to the territorial jurisdiction of the Union, citizenship, fundamental rights and related safeguards, freedom of faith, emergencies arising out of war, rebellion and constitutional breakdown in the States, jurisdiction of the Courts, division of powers between the Union and the federating States, residuary powers between the Union and the federating States, the residuary powers and the institution of the Constituent Assembly in the State, came up for deliberation in the Conference. The Constituent Assembly of India had evolved provisions in respect of the territories of the Union, citizenship, fundamental rights, principles of State policy, jurisdiction of the courts and emergencies. The Constituent Assembly of India had also evolved a scheme of the division of powers between the Union and the States, which it proposed would replace the delegation of powers stipulated by the Instrument of Accession the acceding States had signed.

The Conference leaders stunned Nehru and the other Congress leaders when they refused to accept the application of any provisions of the Constitution of India to the State and instead insisted upon the continuation of federal relations between the proposed Union of India and Jammu and Kashmir on the basis of the Instrument of Accession. In other words they demanded the exclusion of the State from the consitutional organisation of India and its reorganisation into a separate political entity which would be aligned with the Union of India in respect of external relations, defence and communications. In fact, the National Conference demanded the restoration of control over the State army to the Interim Government, which they claimed, would undertake the defence of the State, after the Indian army was withdrawn. The Conference leaders proposed that

(i) the rule of the Dogra dynasty be abolished;

(ii) the State be excluded from the constitutional organisation of India:

(iii) the relations between the Union and the State be governed by the stipulations of the Instrument of Accession;

(iv) the control over the State army be transferred to the Interim Government of the State;

(v) the Interim Government would institute a separate Constituent Assembly to draw up a Constitution for the State.

The Indian leaders agreed to leave a wider orbit of authority to the State Government and accepted to vest the residuary powers with it. They agreed to the demand for the abolition of the Dogra rule, and the institution of a separate Constituent Assembly for the State. However, they refused to countenance the exclusion of the State from the Indian Union and its constitutional organisation. Nehru, evidently disconcerted with the proposals the Conference leaders made, told them that he could not accept to deprive the people of the State of the Indian citizenship, fundamental rights and the Directive Principles of State Policy which reflected the pride of the Indian people in the ideological commitments of their liberation struggle.

The National Conference harboured completely different views about the constitutional relations between the State and India. They visualised the State as a separate political entity with its own constitutional organisation, independent of the political organisation of India in respect of which the Union of India assumed the responsibility of defence, communications and external relations within the stipulations of the Instrument of Accession. The Conference leaders were motivated by a subtle consideration that since the execution of the Instrument of Accession by Maharaja Hafi Singh, which the Conference leaders derisively described as "Paper Accession", was subject to a plebiscite, the Muslims in Jammu and Kashmir, had assumed a veto over the accession of the State to India. To retain the Muslim right to veto on the accession of the State, the Conference leaders evaded any fresh Constitutional postulates and agreements with the Indian Union, which would replace the Instrument of Accession or would alter its consequences.

The atmosphere in which Delhi Conference was convened, was pervaded by a deep feeling of uncertainty. A month before the Delhi Conference was held, Sheikh Mohammad Abdullah had thrown a bombshell in the Indian camp when he had told the correspondent of 'Scotsman', that the independence of Jammu and Kashmir would be the most suitable course to end the dispute over Kashmir. In case, Sheikh Mohammad Abdullah maintained, Kashmir was able to establish good neighbourly relations with India and Pakistan, the two countries would settle down to peace and live as good neighbours.

The National Conference leaders made a tactical retreat mainly to bide time and an agreement was finally reached between them and the Congress leaders. The agreement stipulated:

(i) that Jammu and Kashmir would be included in the territories of Indian Union;

(ii) provisions of the Constitution of India in respect of citizenship, fundamental rights and related legal guarantees, Directive Principles of State Policy and the Federal Judiciary would be extended to the State;

(iii) the division of powers between the State and the Union of India would be governed by the stipulation of the Instrument of Accession and not the Seventh Schedule of the Indian Constitution;

(iv) the administrative and the operational control of the State army would remain with the Government of India;

(v) a separate Constituent Assembly of the State would be convened to draw up the Constitution for the State; and

(vi) the Constituent Assembly, after it was convened, would determine the future of Dogra rule.

The agreement was shortlived. Not long after the Conference leaders returned to Srinagar, they made public pronouncements that the Jammu and Kashmir State would not compromise on the issue of autonomy and the Constituent Assembly of the State would evolve a set of separate principles in regard to citizenship, fundamental rights, Principles of State Policy and elections. The Conference leaders gave ample expression to their reluctance to accept the inclusion of the State in the Indian Union and the application of any provisions of the Constitution of India to the State.

The issues came to a head when Gopalaswamy Ayyangar sent the draft constitutional provisions, he had drawn up for the State, to the Conference leaders for their approval. The draft provisions were based upon the agreement reached in Delhi in May 1949, between the representatives of the Government of India and the Conference leaders. After closed door deliberations, the Conference leaders placed the draft proposals before the Working Committee of the Conference. The Working Committee turned down the proposals promptly.

Sheikh Mohammad Abdullah sent an alternate draft to Ayyangar which envisaged exclusion of the State from the Indian Union and its constitutional organisation. The draft stipulated the abolition of the Dogra rule and the reorganisation of the State into an independent political entity which would be federated with the Indian Union on the basis of the Instrument of accession. The draft proposed that the separate political identity of the State would be based upon the Muslim majority character of its population, its separate culture and history and the aspirations of its people for economic equality and political freedom which the Constitution of India did not enshrine.

The Conference leaders were particularly opposed to application of the provisions of the Constitution of India with regard to citizenship and fundamental rights to the State. They disapproved of all forms of safeguards which the provisions of the Constitution of India in respect of fundamental rights embodied, on the pretext that such safeguards would frustrate the resolve of the Interim Government to undertake economic, political and social reforms in the State. The real reasons for the Conference leaders to resist the application of the fundamental rights to the State were, however, different. The right to equality and the right to protection against discrimination on the basis of religion, the right to freedom of faith and the right to property enshrined by the Constitution of India, conflicted with the Muslimisation of the State, the Interim Government had embarked upon, right from the time it was installed in power. The Interim Government enforced the communal precedence of the Muslim majority in the government, the economic organisation and the society of the State with religious zeal. The discriminatory legislation, which devastated the non- Muslim minorities in the State, worst hit among them being the Hindus in the Kashmir Province, controverted the safeguards the Constitution of India envisaged against discrimination on the basis of religion.

Ayyangar received a jolt when the communication of the Conference leaders, along with the draft proposals drawn by Sheikh Mohammad Abdullah, was delivered to him. On 14 October 1949, he had a long meeting with Sheikh Mohammad Abdullah and Mirza Afzal Beg in Delhi and tried to persuade them to adhere to the agreement they had accepted in the conference at Delhi, earlier in May. The Conference leaders did not relent and told Ayyangar bluntly that they would not accept the application of the Constitution of India to the State.

Ayyangar failed to face the Conference leaders with firmness. He made a vain bid to placate the Conference leaders by offering to exclude fundamental rights and related legal safeguards, from the provisions of the Constitution of India, which were proposed to be extended to the State in his draft. To his consternation, the Conference leaders rejected the modified draft as well. They informed Ayyangar that the National Conference would not accept the application of any provision of the Constitution of India, including the provisions with regard to the territories of the Union and citizenship and that it accepted only the Instrument of Accession as the basis of any relationship between the State and the future Union of India. When Nehru and other Indian leaders insisted upon the inclusion of the State, at least, in the basic structure of the Constitution of India, the Conference leaders broke off the negotiations and threatened to withdraw from the Constituent Assembly.

Fearful of a crisis the resignation of Conference leaders from the Constituent Assembly of India would create in Jammu and Kashmir and its repercussions outside India, Ayyangar beseeched them not to take any precipitate action which would adversely affect Indian interests in the Security Council. A breach with the Conference leaders, he believed, would undercut the support India had among the Kashmiri speaking Muslims who Nehru, still believed, would win the plebiscite for India. The Conference leaders, foxy and sly, used the United Nations intervention, ironically enough, invoked by India to secure the withdrawal of the armies of Pakistan from the occupied territories, to foist on the Indian leaders, a settlement which placed the State in a position outside the political organisation of India.

Nehru was abroad in the United States of America. Ayyangar met the Conference leaders and assured them that the Government of India would accept a constitutional position for Jammu and Kashmir outside the Indian constitutional organisation. He further assured them the Government of India respected the aspirations of the Muslims of the State, and therefore, would accept the institution of a separate Constituent Assembly of the State which would frame the Constitution of the State and also determine the future of the Dogra dynasty. The provisions of the Instrument of Accession, Ayyangar assured them further, would determine the Constitutional relationship between the State and the Union of India.

Ayyangar drew up a fresh draft in consultation with Mirza Afzal Beg. Abdullah pulled the strings from behind the scene. The revised draft, prepared by Ayyangar and moved in the Constituent Assembly of India, envisaged:

(i) no provisions of the Constitution of India, except Article 1, would be extended to the State;

(ii) the division of powers between the Union and the Jammu and Kashmir State would be limited to the stipulations of the Instrument of Accession;

(iii) a separate Constituent Assembly would be convened in Jammu and Kashmir to frame its Constitution;

(iv) the President of India would be empowered to vest more powers in the Union Government in respect of Jammu and Kashmir in concurrence with the State Government;

(v) the President would be empowered to modify the operation of the special constitutional provisions for the State on the recommendations of the Constituent Assembly of the State;

(vi) the State Government would be construed to mean, the Maharaja acting on the advice of the Council of Ministers appointed under his proclamation dated 5 March 1948."

The draft provisions were incorporated in Article 306-A of the draft Constitution of India. The draft Article 306-A was renumbered Article 370 at the revision stage.

Article 306-A was circulated in the Constituent Assembly on 16 October 1949. It came up for consideration of the Assembly the next day. Several members of the Constituent Assembly detected an error in the draft provisions, which Ayyangar had overlooked. The draft Article defined the State Government as the "Council of Ministers appointed under the Maharaja's Proclamation dated 5 March 1948." The members of the Constituent Assembly pointed out to Ayyangar that the definition of the State Government envisaged a perpetual Interim Government which would lead to the creation of an anomalous situation of excluding all successor governments from the provisions of the Constitution of India. Ayyangar modified the draft to remove the anomaly and redefined the State Government as the "person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's proclamation dated the fifth day of March 1948."

The Conference leaders took strong exception to the change in the definition of the State Government. Mirza Afzal Beg threatened to move an amendment to the draft provisions of Article 306-A, seeking to alter the definition of the State Government.

Beg had actually sought to include provisions in the draft Article 306-A which envisaged a perpetual Interim Government in the State and which could be used as a lever against India in future. He and the other Conference leaders, were disconcerted with the inclusion of the State in the First Schedule of the Constitution of India and wanted some pretext to block the passage of the special provisions in the Constituent Assembly.

Ayyangar could not remodify the definition of the State Government, in view of strong reaction against it in the Constituent Assembly. He failed to persuade the Conference leaders to condescend to the modifications he had brought about in the draft. When Article 306-A came up for the consideration of the Constituent Assembly, the Conference leaders sulked away and did not join the deliberations on the draft provision till Ayyangar completed his speech. They sat glum when the draft provisions were put to vote and passed unanimously.

Immediately after the draft provisions were adopted by the Constituent Assembly, they sent a sharp rejoinder to Ayyangar demanding the rescission of Article 306-A as adopted by the Constituent Assembly, failing which they threatened to resign from its membership. Ayyangar was stunned. He sent a plaintive note to the Conference leaders entreating them not to take any action which would prejudice the Indian interests, and wait for Nehru's return. The Conference leaders did not resign from the Constituent Assembly, but as the days went by, they launched a surreptitious and widespread campaign to subvert the special provisions of Article 370.





Article 370

Article 370, in its original form, envisaged exclusion of Jammu and Kashmir State from the secular Constitutional organisation of India, and its reorganisation into a separate political identity based upon the Muslim majority character of its population. It imposed a limitation on the application of the provisions of Constitution of India to the State. The division of powers between the State and the Union was also limited to the stipulations of the Instrument of Accession. Article 370, was therefore, not an enabling act. It was, in fact, an act of limitation imposed on the application of the Constitution of India to the State, after the State was included in the First Schedule of the Constitution. The State was included in the First Schedule independent of Article 370.



CONSTITUENT ASSEMBLY OF JAMMU AND KASHMIR

The Conference leaders sought to use the Constituent Assembly of the State to undermine the special provisions of Article 370 as well as the Instrument of Accession. The elections to the Constituent Assembly of the State were held in 1951. Seventy three of the Conference nominees were returned to the Assembly unopposed. Two of the remaining seats in the 75 member Assembly were also annexed by the National Conference.

In his inaugural address, Sheikh Mohammad Abdullah claimed plenary powers for the Constituent Assembly to determine the final form of the Constitutional relations between the State and the Indian Union, which virtually sought to subject the special provisions envisaged by Article 370 to the verdict of the Assembly. He went further and asserted that the Constituent Assembly, its powers drawn from the people of the State, would determine future affiliations of the State in respect of its accession, in accordance with the options the Cabinet Mission Plan had reserved for the States. In categorical terms, he spelt out that the Constituent Assembly would determine whether the State would remain in India, accede to Pakistan or assume independence. The implications of his statement were clear. Article 370 would be rendered redundant after the Constituent Assembly had taken a final decision on the accession of the State and its constitutional relations with India.

The exclusion of the State from the Constitutional organisation of India and the insistence of the Conference leadership on the right to plenary powers for the Constituent Assembly, caused concern among the Hindus and the other minorities. The Hindus of Jammu reacted sharply against the exclusion of the State from the Indian Constitutional organisation, which they feared was a ploy to undo the accession of the State to India. They also opposed the abolition of Dogra rule, which they alleged would be used by the Interim Government to break the last link between India and the Jammu and Kashmir State.

The Hindus of the Kashmir Province, who bore the rigours of the Muslimisation of the State, also expressed strong disapproval of the Conference demand for a separate political organisation of the State. They had been devastated by the enforcement of Muslim precedence, and virtually reduced to a state of servitude. Their voice was stifled by the Conference gendarmes, who had taken over magistracies in the Valley in the aftermath of the invasion and dispensed justice in the name of Islam. The Conference leaders branded the Hindus as the traitors to the freedom of Jammu and Kashmir and accused them of having supported the Dogra rule in its depredations against the Muslims.

The Hindus made frantic appeals to the Indian Prime Minister and entreated Ayyangar not to accept the exclusion of the State from the Indian political organisation. They pleaded with the Indian leaders that the consequences of the isolation of the State and its reorganisation into a separate political organisation, governed by the commitment of the National Conference to the Muslimisation of the State, would have disastrous consequences in the long run.

History proved them right. Four decades after Article 370 was enacted, the rickety structure of the political instruments envisaged by it, crumbled under the onslaught of the Muslim secessionist forces, militarised by Pakistan. With that were wiped out the Hindus and the other minorities, along with the hollow slogans of secularism with which the successive governments of India had concealed the ugly face of Muslim communalism in the State.

The demonstrations made by the Hindus in Kashmir evoked little response from the Congress leadership. Blinded by the partition of India, which had been brought about by the Indian Muslims, rather than the British, they looked to the Muslims of Kashmir as the sole guarantors of secularism in India. They denounced the Hindus and other minorities for allegedly seeking to communalise the traditionally tolerant community of the Muslims and applauded the National Conference for its demand to secure the exclusion of the State from the secular political organisation of India on the basis of the Muslim majority character of its population

The National Conference used the Indian State to defend Jammu and Kashmir from the invading armies of Pakistan in 1947. After that was accomplished, they sought to use the United Nations intervention to pull out the State from India. In August 1953, the Interim Government was dismissed and a second Interim Government headed by Bakhshi Gulam Mohammad installed in its place. In 1954, the limitations imposed upon the application of the Constitution of India to the State were partially lifted by a Presidential proclamation, in respect of citizenship, fundamental rights, Government of India, division of powers, federal judiciary and elections to the Parliament. Subsequent proclamations extended more provisions of the Constitution of India to the State. The application of the provisions of the Constitution of India, however, were subject to reservations and exceptions, which mutilated their real content.

TERRORISM AND AUTONOMY

In the broad background of terrorist violence which has ravaged the State for the last six years, the demand for greater autonomy and the wild assurances of the successive Indian Governments to support it, has an ominous portent. The restoration of the 1953 status, which is presumed to be the bottom line the autonomy of the State will necessitate restructurisation of the existing Constitutional relations between the State and the Union of India and the withdrawal of the provisions of the Constitution of India, extended to the State, following the Presidential proclamation of 1954. The restoration of the separate political identity of the State on the basis of the Muslim majority character of its population will reinforce the Muslim claim to a veto on the accession of the State to India.

The insistence on (i) a safer zone to protect the Muslim minority from the dominance of the Hindu majority in India, and (ii) the right of the Muslims to reconstitute the Muslim majority provinces to form a Muslim State, were the two basic planks on which the Muslim League secured the partition of India. The creation of an autonomous state of Jammu and Kashmir placed outside the political organisation of India, will go half-way to substantiate Pakistan's claim on Kashmir. With militant guns booming in the background, India will, sooner or later, be forced to accept a settlement which is acceptable to Pakistan.

The militarisation of Muslim secessionist forces and their reorientation to Pan-Islamic fundamentalism has added a new dimension to the Muslim separatism in Jammu and Kashmir. The consolidation of Pan-Islamic fundamentalism as a basis for a global strategy to unify the Muslim nations into an independent power in the world, with Pakistan as one of its focal centres, threatens the whole northern frontier of India.

The demand for autonomy reflects the unconcealed satisfaction with which its proponents are using the ground earned by militants, to pull out the State from the Indian political organisation. With the Hindus in exile, there is no one left in Kashmir to weep for India. On a midnight hour, sometime in future, India might once again awaken to the f reality of a second partition.Human Rights Violations in Kashmir