Autonomy not secession

By Rajeev Dhavan

NEWS FROM Srinagar mentions a special report on `autonomy for Kashmir'. The report has not been made public. Its details are not known. The Assembly of Jammu and Kashmir (J&K) has passed a `resolution' on `autonomy' for Kashmir. The text of this Resolution is not known. It was passed by a voice vote. Its supporters are not known. With political guile, the Union Home Minister, Mr. L. K. Advani, decided to duck the issue; and, hand it over to Parliament rather than take a stance by combining political courage with constitutional conviction. Instead, he wants to rely on the Opposition to defeat the measure. It is the BJP's relentless frenzy over Article 370 which has cumulatively created this crisis. Even now, the BJP is relentless. It is prepared to risk J & K but not lose its electoral support. The BJP needs to take a clear categorical and unequivocal stance that Article 370 should be made permanent. But it prefers to hold on to its lumpen cohorts rather than preserve the nation.

The J & K Assembly's `resolution' has no special constitutional status. But it has a positive aspect which needs to be emphasised again and again. It is a demand for autonomy not secession. The Resolution wants to go back to the status quo of 1953. From this many implications follow. It follows that the J & K Assembly accepts the Instrument of Accession. Through this Resolution, the J & K Assembly confirms that all of Kashmir (including Pakistan- occupied Kashmir) is an integral part of India. By staying within Article 370, the J & K Assembly also accepts that Kashmir's merger with India is irrevocable. Such a strong political affirmation of Kashmir's status within India by its own duly- elected Assembly must be given due respect. Writ large over the Assembly's Resolution is not a message for India, but for Pakistan and the rest of the world.

But, let us return to some basic issues. The idea that special provisions have to be made for special States should not startle us. Apart from Article 370, there is a family of Articles (371 A to 371 I) which makes special provision for Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh. There are special provisions for Tribal Areas (in the Fifth and Sixth Schedule). One provision provides for special Cabinet Ministers for Tribal Welfare for the States of Bihar, Madhya Pradesh and Bihar (Article 164). If some States are special, Kashmir is even more special than others. Mr. Advani's escapism cannot eclipse the extra-special status of Kashmir. Like so many other States, Kashmir did not have to accede to India. It could have gone to Pakistan. Or stayed independent. It chose to design its joining India on the terms of the Instrument of Accession to specifically include only questions of defence, foreign affairs, communication and the like. The sacrosanctity of the Instrument of Accession has been accepted by, and forms the cornerstone, of the specially-crafted Article 370 of our Constitution, and, perforce, the Constitution of J & K of 1957.

The architecture of Article 370 is intricate and delicate. It has four main features. First, the Union's legislative power extends to all matters on the Instrument of Accession in `consultation' with the J & K Government. Second, the `concurrence' of the J & K Government is required to apply or extend Union laws beyond the Instrument of Accession. Third, the `concurrence' of the J & K Government is also required to apply or extend any parts of the Indian Constitution to J & K. Finally, J & K was entitled to, and drafted, its own Constitution in 1957. Within the terms of Article 370, many Indian laws relating to negotiable instruments, mines and minerals, security, working journalists and many other crucial aspects of law and order, commerce communication have been applied to J & K. Equally, many parts of the Indian Constitution including those relating to fundamental rights, the Supreme Court, Election Commission, Auditor General and many others have been extended to J & K. The Election Commission of India has been given express recognition in the J & K Constitution of 1957 which cannot be altered even by the J & K Assembly by less than a two-thirds vote. According to the list in Chief Justice of India, Mr. A. S. Anand's authoritative book on the Constitution of J & K, no less than 43 Constitutional Application Orders and 205 Union statutes have been applied to J & K since 1953. The proposal to go back would unsettle all these laws and constitutional arrangements.

A voice vote of the J & K Assembly cannot unravel the entire legal edifice which has been carefully built with the concurrence of successive J & K Governments over a period of 47 years since 1953. The J & K Government has no power to unsettle these arrangements. Its voice vote is no more than a demand, perhaps a threat wrapped up in a protest. It cannot wipe out the present known constitutional and legal system by the strength of its decibels. Indeed, if that were the effect of the Resolution of the Assembly, there would be chaos in J & K. Banking would come to an end. Trading and investment operations would come to a close. A reign of anarchic terror would be unleashed to extents comparable with those of Serbia, or, even the Partition of India. A legal vacuum accompanied by a terrifying social chaos could not be what the Assembly intended. Nor does Parliament have the constitutional authority to empower or invite such chaos. Autonomy is just a word. Each ingredient of autonomy needs to be worked through the political and constitutional process. Some demands are easier than others. J & K cannot shrug off the Supreme Court and become a law unto itself. Nor can it accept Union money and reject financial audit throught the Auditor General. Each thread has to be carefully considered and reconsidered.

Demands for autonomy within the framework of the Indian Constitution are not new. They were suggested in the Fifties and Sixties. Tamil Nadu's Rajmannar Report demanded de-centralisation in 1971. In 1978, West Bengal issued a Memorandum making 29 demands for autonomy. The Sarkaria Commission has favoured decentralisation in many areas. Constitutional Amendments have been made to create panchayats. A Constitutional Amendment rewriting financial federalism is already before Parliament to implement the Finance Commission's proposals.

Autonomy is not secession. Nor is it a signal for other States to make similar claims as those of J & K. It is a unique and special opportunity to resolve fundamental issues germane to a decentralised peoples democracy. But, any proposal has to be made within the Constitution. A federalism based on special provisions for special units will provide constitutional solutions for the future to save the 21st century from bloody wars to re-write the map of the world. China has evolved a special federalism for Hong Kong and Macau. Yugoslavia could have been saved from disintegration if such special treatment had been conceded to Slovenia and other parts. The answer to Sri Lanka's troubles lie in this direction. The BJP wants to hide its uneasy communal past on Kashmir by a double camouflage. It refuses to formally state that it has abandoned its demand for the abolition of Article 370. No less, its Government wants to hide behind Parliament instead of showing statesmanship and courage. India must accept the framework of Article 370. The cry for `autonomy' as part of the Union of India should not frighten us. It is no more than a proposal. It is also a challenge to India's genius to accommodate diversity within unity.

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