JAMMU AND KASHMIR

Towards greater autonomy

The report of the State Autonomy Committee set up by the National Conference Government outlines constitutional and legislative measures to restore to Jammu and Kashmir the political autonomy that was guaranteed at the time of its accession. Particularly in the light of developments since the Kargil conflict began, it merits a national debate on the State's place in the Indian Union.

PRAVEEN SWAMI
in Srinagar

Certain tendencies have been asserting themselves in India, which may in the future convert it into a religious state wherein the interests of Muslims will be jeopardised. This would happen if a communal organisation had a dominant hand in the Government and Congress ideas of the equality of all communities were to give way to religious intolerance. The continued accession of Kashmir to India should, however, help in defeating this tendency. From my experience of the last four years, it is my considered judgment that the presence of Kashmir in the Union of India has been the major factor in stabilising relations between the Hindus and Muslims of India.

- from Sheikh Mohammad Abdullah's inaugural address to the Jammu and Kashmir Constituent Assembly, November 5, 1951.

BY SPECIAL ARRANGEMENT
Priminister Jawaharlal Nehru with National Conference founder and Prime Minister of Jammu and Kashmir Sheikh Abdullah, an undated file photograph. Protracted negotiations between them led to the institutionalisation of the State's relationship with the Indian Union as laid out in the Instrument of Accession of 1947 and to the emergence of Article 370 of the Constitution.

THE National Conference, the ruling party in Jammu and Kashmir, appears to be torn between a sad marriage to its historic ideological commitments and a new dalliance with the Hindu Right.

Four months have passed and a war has broken out since Chief Minister Farooq Abdullah announced the release of the most important political document on the political future of Jammu and Kashmir since its accession to India on October 26, 1947. The Report of the State Autonomy Committee (SAC), which was set up shortly after the National Conference Government came to power in September 1996, promised to open a dialogue on Jammu and Kashmir's place in the Indian Union. But with more than a few voices on the Hindu Right calling for the repeal of Article 370 in the wake of the Kargil crisis, it remains to be seen whether the N.C. will find the courage to initiate a meaningful debate on the autonomy issue.

The SAC, whose Report was released in April, has its origins in a promise the N.C. made in its manifesto released ahead of the State Assembly elections in 1996.The manifesto said the party would secure "dignified, undiluted and meaningful autonomy" for the State's people. The N.C., which had boycotted the previous round of Lok Sabha polls, agreed to participate in the 1996 Assembly elections only after the then Prime Minister, H.D. Deve Gowda, promised "maximum autonomy" for Jammu and Kashmir. In the wake of the Kargil crisis, the SAC Report raises fundamental questions about India's policy on Jammu and Kashmir: What vision does India have of the State's future? Given that powerful forces within and outside India have advocated that the State be carved up on communal lines, what alternative terms of political dialogue for Jammu and Kashmir may there be?

NISSAR AHMAD
At a meeting in New Delhi in 1998 to review the situation in the State, Chief Minister Farooq Abdullah with Union Home Minister L.K. Advani, Defence Minister George Fernandes, Governor G.C. Saxena and Chief of the Army Staff Gen. V.P. Malik.

Jammu and Kashmir's former feudal ruler Karan Singh was appointed to chair the nine-member SAC's deliberations, which began shortly after it was set up on November 11, 1996. Growing political differences with Farooq Abdullah led Karan Singh to resign suddenly from the SAC in July 1997. Public Works Minister Ghulam Mohiuddin Shah took over as the chair, and former Assembly Speaker Mirza Abdul Rashid filled the vacancy. The slow progress of the SAC's deliberations provoked cynicism about its work. However, its final Report is surprisingly thought-provoking.

In essence, the SAC Report outlines a series of constitutional and legislative measures to restore the political autonomy that Jammu and Kashmir was guaranteed at the time of its accession. Unlike any other princely state, and despite the pressures placed by Pakistan's invasion of its territory, Jammu and Kashmir negotiated the terms of its accession to India. A schedule to the Instrument of Accession listed just 16 areas, under the three heads of Defence, External Affairs and Communications, for which the legislature of the Dominion of India could make laws. A fourth head, Ancillary, enabled the Dominion to make laws on four subjects related to elections to its legislature.

Protracted negotiations between N.C. founder Sheikh Abdullah and Indian political leaders, principally Prime Minister Jawaharlal Nehru, led to the institutionalisation of the relationship laid out in the Instrument of Accession. The process of negotiation was often bitter, with Sheikh Abdullah threatening on at least one occasion to walk out of the Constituent Assembly in protest against the phrasing of a clause. Article 370 of the Constitution emerged from this process of dialogue, and this fact is little understood by the assortment of figures who periodically attack it as the reason for the troubles in Jammu and Kashmir.

SANDEEP SAXENA
Karan Singh, former ruler of Jammu and Kashmir who resigned as SAC chairman following political differences with Farooq Abdullah.

In essence, the Article makes six special provisions for the State, all of which emerged from the terms of the Instrument of Accession. First, Jammu and Kashmir would have its own Constitution within the Union of India, thus exempting it from the provisions of the Indian Constitution for the governance of the States. Then, Parliament's authority to legislate for the State would be restricted to the three areas laid out in the Instrument of Accession. If any other constitutional mandates or Union powers were to be made applicable to the State, they required the assent of the State Government.

But, the SAC Report argues, Article 370(2) placed even bigger limitations on the Union's powers. It made clear that the State Government's concurrence with moves to extend constitutional provisions to Jammu and Kashmir would require the ratification of the State's Constituent Assembly. Once the Jammu and Kashmir Constituent Assembly completed its work, therefore, no government had the power to consent to any further extensions of the Union's powers. Finally, Article 370(3) enabled the President to abrogate or amend the entire Article, but only on the basis of a recommendation by the State's Constituent Assembly.

BY SPECIAL ARRANGEMENT
Public Works Minister Ghulam Mohiuddin Shah, who was appointed in place of Karan Singh.

IN July 1952, even as the work of the Constituent Assembly was under way, Nehru and Sheikh Abdullah announced a 10-point agreement on Jammu and Kashmir's relationship with India. While residuary powers rested with the Centre in the case of other States, they would rest with the State in the case of Jammu and Kashmir. Citizens of the State would also be citizens of India, but pre-Independence State subject laws that barred outsiders from buying land in the State would still apply. The Indian flag would have primacy, and the power to grant prisoners reprieves and commute death sentences would rest with the President of India. The Union's power to impose a state of emergency was, however, severely restricted.

Areas of disagreement still remained. Nehru and Sheikh Abdullah could not agree on whether Fundamental Rights should be incorporated in the Constitution of the State or that of India. One of the principal obstacles was that the right to property conferred by the Indian Constitution stood in the way of the N.C's radical programme of land reform. Then, while Sheikh Abdullah agreed that the Supreme Court ought to have jurisdiction with regard to Fundamental Rights, no final decision was made on how this would be reconcilable with the powers of Jammu and Kashmir's supreme judicial authority, the Advisory Board to His Highness. Financial arrangements, too, were left for further discussion.

The Delhi Agreement of 1952, and the Constitution Order it led to, were to form the basis of the N.C's subsequent demands for autonomy, for reasons that were deeply rooted in politics. The Hindu Right's aggressive Praja Parishad movement in Jammu, demanding the full application of the Indian Constitution in the State, as well as the bitter legacy of the genocidal riots that accompanied Partition, had led Sheikh Abdullah to adopt a stand that seemed to introduce a measure of ambiguity to his commitment to the Indian Union. The Praja Parishad movement terrified Muslims in the State and was to force his new stand. This, helped by Sheikh Abdullah's occasional - and opportunistic - support for Western intervention in the State, pushed Nehru finally to break with his comrade of long standing.

SHANKER CHAKRAVARTY
Advani leads a BJP rally in Jammu in June 1994 to demand that the communally-sensitive Doda area in the Jammu region be handed over to the Army. In the light of the Hindu Right's long-standing demand for the repeal of Article 370, it is unclear whether the N.C. will now initiate a debate on the autonomy issue.

With Sheikh Abdullah in jail, Syed Mir Qasim's regime set about resolving the areas of dispute in the 1952 Accord. In February 1954, Qasim presented the Jammu and Kashmir Constituent Assembly with the reports of its Drafting Committee. The reports were to form the basis of the 1954 Constitution Order issued by the President of India, which transformed several important features of the Delhi accord. The jurisdiction of Parliament to legislate for Jammu and Kashmir was now extended beyond the three areas outlined in the Instrument of Accession, making it competent to cover all areas in the Union List. Parliament was now also empowered to make laws for the State on areas not detailed in the Union List. Fundamental Rights, too, were extended to Jammu and Kashmir.

The SAC Report bitterly attacks the 1954 Constitution Order. For one, it points out, the Order's preamble says that it was "made with the concurrence of the Government of the State of Jammu and Kashmir." Since proceedings in the State's Constituent Assembly were on at that time, the SAC Report asserts, "the State Government (had) lost the power to accord any such concurrence... However, the order may be said to be valid insofar as it conforms to the Annexure to the report of the Constituent Assembly's Drafting Committee." This, it did. But the Constitution Order of 1954, made early in the course of a bitter political confrontation in the State, was just the beginning.

By 1986, some 42 Constitution Amendment Orders had been passed, restricting the powers of the State legislature and empowering Parliament to legislate on matters in the Concurrent List and even matters that ought to have been State concerns. Emergency powers that were applicable in all other States came into force in Jammu and Kashmir too. The All India Services gained entry, as did the Election Commission of India. Major reforms in the State Constitution were also brought about. "Not all these Orders can be objected to," the SAC Report accepts. "For instance, none can object to provision for direct elections to Parliament in 1966, delimitation of Parliamentary constituencies, etc. (But) It is the principle that matters. Constitutional limits are there to be respected, not violated."

NISSAR AHMAD
State secretary of the Communist Party of India (Marxist) Mohammad Yousuf Tarigami leads a rally of activists of the Democratic Youth Federation of India in Kulgam in south Kashmir in April 1999. The rally criticised the N.C. Government for its failure to take up development issues at the grassroots level.

FIGURES listed in the SAC Report detail just how deeply the special status envisaged in the Instrument of Accession and Article 370 has been transformed. Of 395 Articles in the Indian Constitution, the Report says, 260 are applicable in Jammu and Kashmir. The remaining 135 are Articles for which there are identical provisions in the Constitution of Jammu and Kashmir. Only three of the 97 areas listed in the Union List are still inapplicable in the State, as are 26 of the 47 entries in the Concurrent List. In some ways, however, the use of Article 370 has proved comparatively disadvantageous to Jammu and Kashmir. For instance, Parliament had to move four amendments to the Constitution to provide for the imposition (and extension) of President's Rule in Punjab from May 1987 until February 1992. In the case of Jammu and Kashmir, it merely required executive orders to be issued under Article 370.

It is this history that the SAC Report seeks to undo. At least two points are central to the debate that is certain to follow. The first is that the SAC Report must be seen as a basis for a rational debate, not as a theological manifesto, both by the party and by its critics. If, as the Report admits, some of the 'encroachments' by the Union's powers since 1950 have been desirable, a dogmatic insistence on restoring the Delhi Accord seems meaningless. Few people in Jammu and Kashmir will be enthused by the prospect of leaving the business of drafting Fundamental Rights to the State legislature or doing away with the powers of the Election Commission altogether. Creative solutions to the troubled history of State autonomy need to be found in a manner that respects the unique heritage of Jammu and Kashmir and the equal imperative of protecting the democratic rights of citizens from a notoriously corrupt political elite.

But despite Chief Minister Farooq Abdullah's promise of a national debate, it is far from clear just how serious his party is about such a process. Parts of the SAC Report read suspiciously like a National Conference political broadcast, projecting the party as the sole authentic representative of popular aspiration in the State. The process of regaining autonomy must be an inclusive one. The N.C.'s support for the BJP-led government at the Centre has not helped its credibility on the issue, given the Hindu Right's commitment to a single monolithic nationhood. Congress(I) leader Mehbooba Mufti, daughter of former Union Home Minister Mufti Mohammed Sayeed, has reacted with suspicion, arguing that the N.C. intends to use the SAC Report as election-time bait - a proposition that is not implausible.

Received wisdom that the erosion of autonomy is the sole or even principal cause of terrorism in the State is more than a little tired. Nor is the converse of this argument - that the grant of autonomy will ensure an end to violence - even vaguely grounded in the real world. The rise of the once-hated Congress(I) as a likely challenger to the N.C. in some areas and the ability of even the Communist Party of India (Marxist), which has pockets of influence in the State, to mobilise mass support on development issues at the grassroots level, illustrate that the basic foundations of politics in Jammu and Kashmir are changing more rapidly than most observers understand. Autonomy from New Delhi, if it is to serve any purpose, must be part of a broader process of devolving power to the people, something that Kashmir's ruling elite is conspicuously silent on.

But placing autonomy on the agenda will serve one, more fundamental, purpose. It will signal to the people of Jammu and Kashmir that despite the rise of a revanchist right-wing elsewhere in India, the political and cultural rights of Muslims in the State will be secure. It is perhaps not coincidental that the rise of secessionism and an Islamic far-Right in Jammu and Kashmir came about in the 1980s, a time of growing communal violence and a closing of doors to Muslims in India. And, in the wake of the Kargil crisis, a genuine all-India dialogue on the SAC Report could be the most effective line of resistance to United States-led efforts to intervene in the region. With the curious formations in power in the State and in New Delhi, however, such a debate seems wholly unlikely to come about.