Federal Debate in Jammu and Kashmir: What the Election boycatt can teach us

The election results in Jammu and Kashmir seem to have been the long awaited good news to shake off a bad year. The voter turnout in J&K hovered around 62%, slightly higher than the national average, and J&K has a new energetic Chief Minister, the youngest in India. If the editorials of the national English language print media are to be believed, the elections were a ‘triumph of democracy’ and validated ‘mainstream politics as the most effective mediator in finding solutions’. The elephant in the room, of course, is the Hurriyat Conference. Not only has the Hurriyat refused to contest elections, it has also called for an election boycott. Political analysts now recommend that New Delhi stop the ‘futile talks’ with the separatists, who do they represent anyway? Needless to say that this is exactly the kind of post-election media coverage the Hurriyat anticipated. This is why they called for a boycott in the first place. But there is a deeper rationale underlying the boycott call and, in terms of international law, it is a valid one.

To understand this we need to go back in history. In 1970, the UN General Assembly adopted a resolution, which came to be known as the Friendly Relations Declaration. The resolution was non-binding, but widely seen as containing principles of universal validity. The principle of self-determination occupied a prominent place in the declaration. It was defined as ensuring the right of all peoples to freely determine their political status. But it had an important qualifier. The right to self-determination, so the declaration, cannot be invoked to undermine the territorial integrity or political unity of states ‘possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour’. In plain language, this means that the most potent antidote to secession is for a state to make sure it has a representative government. If we spin it a little further we could probably also make the case that participation in the democratic (electoral) process by all segments of the population is a vital indicator for the right to self-determination being meaningfully exercised.

After the adoption of the Friendly Relations Declaration, the principle of self determination lay dormant for almost twenty years. Only when the Cold War ended, did peoples start asserting themselves again. The Berlin Wall crumbled, and Germany, under the banner of self-determination, seized the historic opportunity for reunification. The world witnessed the dismemberment of existing states and the creation of new ones. But here is the rub. The demise of the Eastern Bloc also marked the end of any effective opposition to the Western model of representative democracy. Interestingly, the German people never held a referendum. The governments did all the paperwork for them and then had them sign in the bottom right corner. True to the spirit of the Friendly Relations Declaration, there was an election for the people in East Germany before reunification and a general election after the fact. State doctrine was latched onto the elections and out came the people’s will. You may call it self-determination light, but perhaps it’s just that declarations on friendly relations are not for peoples after all, but for nations.

The Non-Aligned Movement duly supported anti-colonial self-determination struggles, but the script changed once the post-colonial nation-state had established itself. India, when signing on to the International Covenant on Civil and Political Rights, made it clear that the right to self-determination had outstayed its welcome. National policies are not set in stone. The Indian government may come around yet again, this time to appropriate the separatists’ talk of self-determination. Here is how: Mainstream political parties have had a smooth sailing in the 2002 and 2008 Assembly elections. If they secure a strong showing again in the upcoming Lok Sabha elections, can it not be argued that J&K is reconciled with integration into India, like the five eastern states of Germany were with acceding to the Federal Republic of Germany? The nexus between the right to self-determination, representative government and elections is the Achilles heel of the Hurriyat, and they know it.

Explaining the rationale for boycott is not the same as saying that the Hurriyat did the right thing when they called for it. In fact, I believe they were wrong. The Hurriyat’s influence is largely confined to the valley to begin with. What is more, the various factions, prone to talking and fighting among themselves, clearly underestimated the desire of the people, especially in the rural areas, to hold someone accountable for what is going wrong in their lives. Voters in J&K, like in other parts, may have actually had few illusions as to what their ballot would accomplish. Many were not even in a position to punish the party of their earlier choice because they came out to vote for the first time. But a message they wanted to send anyway. The idea one gets from analyzing the situation in J&K is that frustration about political disenfranchisement can constitute an electoral stimulant as effective as confidence in the democratic process. What objection could the Hurriyat possibly have had to Kashmiris driving home that point?

As for the way forward, the Indian media have highlighted the need for the incoming J&K administration to focus on governance and development. But in the federal scheme of things, state elections are about a whole lot more than electricity, roads and water (‘bijli-sadak-pani’). This is not the place to decide on the merits whether Article 370 of the Indian constitution has widened or, as some would argue, allowed to shrink the autonomous space for J&K. The fact remains that public order (and police) is a state responsibility, so is public health. Education is inscribed in the concurrent list, meaning that the state can legislate to the extent that the centre has opted not to. But in the case of J&K, the state is in charge of education unless it has concurred to legislation by the centre. Take public order, health and education together, and you have the ingredients for the future of J&K. Add to the mix the constitutional provision that the armed forces are deployed ‘in any State in aid of the civil power’ and throw in the admission that militancy is on the wane (according to police sources, some 800 militants are left in J&K). Out of the window goes the justification for the massive deployment of the armed forces in J&K. And if the army goes—and with it the paramilitary forces—so does the Armed Forces Special Powers Act. Being given the chance of a referendum, my guess is that this is what people in J&K would have decided.

Chalking out lines of argument entirely within the scope of the Indian constitution does not always go down well with my interlocutors in J&K. I have come to appreciate that Kashmiris do not necessarily see the Indian constitution as a reference point for political or legal deliberations because, I was told, the princely state never effectively acceded to India. Others believe that there is no basis for discussing J&K outside of the constitutional framework. Listening to both sides, I cannot help feeling that a debate on the status of J&K will remain out of focus as long as it is beset with taboos. In the Indian discourse on constitutionalism, the greatest taboo is secession, and in the Kashmiri separatist discourse, it is a discussion of Indian constitutionalism. This is somewhat paradoxical as secession is the daily bread for federal systems, and if a divorce of J&K from India comes to pass, it will have to go through the Indian constitution (and the constitution, too, is to make provision, with respect to the rest of India, for the eventuality that the marriage is found to not have been consumed or concluded). Meanwhile, the talk of ‘autonomy’—a concept that the National Conference cannot even get its coalition partner Congress to agree to—seems little promising if it just means a rehash of 1952, 1975 or 1987, a political arrangement, a deal between the Abdullah and Nehru families, without any supporting institutions and legal framework for implementation.

Sometimes set-backs give birth to new ideas. Sajjad Lone, a moderate leader of the Hurriyat, fuelled speculation when he declared, after the elections, that ‘the grammar of our movement has remained unchanged since 1989’. Even Syed Ali Shah Geelani, the leader of the hard line faction, conceded the need for ‘fully discussing’ the methods ‘to carry the struggle forward’. Here is a thought. Start a dialogue from the four corners that make up the house of J&K. There is a constitution in J&K and in India, in Azad Kashmir and in Pakistan. Each has a role to play for a solution of the Kashmir conundrum, and all are wanting in isolation from each other. Break with dogmas. Debating self-determination and constitutionalism is not mutually exclusive. If the people of J&K truly believe ‘Quit India’ is the answer to their problems, they need to find a way of feeding their sentiments into a larger discourse on conditions, modalities and arrangements for secession. Being open to that discussion does not make anyone, as parts of the national media would have it, a ‘bleeding heart’, a ‘well-meaning intellectual’ or a bad person altogether. Freedom seekers everywhere, I think, will agree that 26/11 ought to be remembered not primarily for the Mumbai attacks and its aftermath, but as the day when the people of India, sixty years ago, gave themselves a constitution that meant to secure the rights of citizens in their pursuit of justice, liberty, equality and fraternity.

This article previously appeared in Kashmir Times, 8 January 2009. The opinion expressed in the article reflects the views of the author and not necessarily that of the foundation.