The Hindu : J&K and autonomy

Online edition of India's National Newspaper
Friday, Aug 23, 2002

Opinion

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J&K and autonomy

By Balraj Puri

The Prime Minister must consult representatives of all parties and regions of the State before taking any decision.

IN THE current debate on autonomy for Jammu and Kashmir, it is being argued that the State was granted special status or that it agreed to accede to the Union on only three subjects due to special reasons. The fact is that the State was neither granted nor did it demand a special status. All the states ruled by princes were required to accede to India or Pakistan on only three subjects — Defence, Foreign Affairs and Communications. Jammu and Kashmir was not and could not be an exception.

However, later other princes surrendered their right of Constitution-making to the Constituent

Assembly of India which eventually adopted a uniform Constitution for the former princely states and those of the former British India. Neither the ruler nor the political leadership nominated by him to run the Government of Jammu and Kashmir surrendered more powers. Instead, in accordance with the Constitutionally prescribed procedure, the representatives of the State and the Union Government agreed that "Constituent Assembly of the state would be empowered to determine other powers — beyond the Instrument of Accession — to be transferred to the Government of India''. Accordingly, Article 370 was introduced in the Constitution of India. Sir Gopalaswamy Iyanger told the Constituent Assembly that "the State Constituent Assembly would decide both on the Constitution of the State and the range of federal jurisdiction over the State". While Sheikh Abdullah had insisted on abrogation of Article 370 after State-Centre relations were finalised, in accordance with the decision of the State Constituent Assembly, the Government of India persisted in retaining it to use it, as was explained later, as a tunnel through which the process of integration could continue indefinitely.

Meanwhile, after a series of talks with Nehru, Sheikh Abdullah agreed to extend some more provisions of the Indian Constitution to the State under what was known as the Delhi Agreement signed by both of them in July 1952. These provisions included right of citizenship, fundamental rights subject to suitable modifications to protect the land reforms of the State, limited jurisdiction of the Supreme Court, acceptance of the Union flag along with the State flag and that the head of the State would hold office during the pleasure of the President.

The process of evolution of the State's relations with the Centre was jolted by the crisis of August 1953 when Sheikh Abdullah was dismissed from power and detained indefinitely. The causes of that crisis are too complex to be discussed here. The letter of the Constitution was strictly followed in extending its provisions and Central laws to the State thereafter also. Concurrence of the State Government, as required, was obtained in every case. But the way the Governments were elected is by now well known. Moreover, all these integrative measures were taken after putting the popular leadership in jail. It is not the question of merit or demerit of such measures. It is the manner in which these were taken and their lack of political and moral legitimacy that caused popular alienation in Kashmir.

Further, whatever justification may be cited for transfer of powers from the State to the Centre to

implement the decisions of the State Constituent Assembly in 1956, it was insignificant as compared to the massive erosion of the State's autonomy by the post-Nehru leadership in 1964-65 with the concurrence of the leftist Government of G.M. Sadiq in the State. Articles 356 and 357 of the Indian Constitution — regarding emergency provisions — were extended to the State in December 1964. Nomenclature of the head of the Government and of the State were changed from Prime Minister to Chief Minister and from Sadar-e-Riyasat to Governor respectively in April 1965. The latter was to be nominated by the President instead of being elected by the State Assembly. Meanwhile, at the political level, the ruling regional party, National Conference, was dissolved and made a branch of the All India Congress Party. These measures and the haste with which they were taken were perceived in Kashmir as a threat to its identity. They caused an unprecedented wave of anger in Kashmir against relations with India. It tempted Pakistan to exploit the popular anger by sending thousands of infiltrators to Kashmir in 1965 that led to the second Indo-Pakistan war. But that did not deter the "integrationists" from pursuing the process till the mid-1980s.

A glaring case of the misuse of the "tunnel of Article 370" for the purpose of integration of the State in violation of the spirit of the Constitution is the way Article 249 was extended to the State — when Jagmohan was Governor. Exercising the powers of the State Constituent Assembly and the executive, he recommended to the President its application to the State. It empowered Parliament to legislate with respect to matters in the State List of Subjects. Mr. Jagmohan himself acknowledged, "if the present set up had not been there, much noise would have been made over the extension of Article 249 to the State".

I was one of the few who had opposed the manner of constitutional integration of the State — which was at the cost of its emotional integration. I have now similar reservations about the manner in which Farooq Abdullah is seeking restoration of the autonomy and the liberal arguments in support of that. My first and foremost objection is to the discussion of the subject after announcement of the election dates. The nomination of Arun Jaitley as the Centre's interlocutor with Cabinet rank for talks on the issues of devolution of power, as the demand for autonomy is put, with the National Conference is a gross violation of the code of conduct. The only purpose it is intended to serve is to boost the election prospects of the ruling party in the State.

Second, any agreement on Centre-State relations with Dr. Abdullah will block avenues of a dialogue and settlement with the alienated popular leadership of Kashmir. Any agreement on the subject would be worthwhile only if it gets universal approval of the people and leads to the end of the secessionist movement. Third, the transfer of power from the Centre to the State must be preceded by equity among its three regions which must have adequate autonomy within the State and an equal say.

Fourth, in the absence of federal autonomous institutions to act as checks and balances — like the Supreme Court, the Auditor General and the Election Commission — the State might become an authoritarian and regimented system which may deprive the people of whatever liberties they have today. Fifth, the present ruling party of the State has surrendered the political autonomy other State Governments enjoy by shifting its loyalty to any party that comes to power at the Centre. More autonomy to such a State might help in imposition of a combined dictatorship of the ruling parties at the Centre and the State over the people.

Sixth, before a discussion on autonomy for the State, its ruling party must agree to grant autonomy to institutions such as universities, cultural academies, the Public Service Commission, cooperative societies and panchayati raj institutions as also to religious institutions such as the Auqaf Islamia and managements of religious shrines which are controlled by the Governor. In short, rampant misuse and abuse of existing power in the State must stop. The State's Government must be democratised and federalised before it aspires for more powers from the Centre.

The Prime Minister must consult representatives of all parties and regions of the State before taking any decision. Consultation should not be confined to the representatives of the Government as there are still doubts whether they would be elected through a perfectly free and fair election.

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