Author: Arvind Lavakare
Publication: Rediff on Net
Date: July 30, 2002
URL: http://www.rediff.com/news/2002/jul/30arvind.htm
The autonomy that father-and-son
Abdullah dream of is the return of J&K to its pre-1953 status with
regard to its constitutional position -- vis-à-vis the rest of India.
That is simple. But what is the sanctity of that cut-off date for them?
The commoner interested in politics
is unlikely to know despite the dozens of media discourses on the autonomy
theme -- which say what about those discourses? Never mind.
You'll readily understand the significance
of the 'pre-1953' phrase when told that it was on August 9, 1953 that Sheikh
Abdullah, J&K's prime minister, was dismissed from office and detained
under the state's Prevention Detention Act by the erstwhile yuvraj (in
his capacity as the Sadar-i-Riyasat aka governor of the state). Abdullah
and 25 others, 10 of whom were hiding or in Pakistan, were charged with
conspiracy to 'overawe by force and show of force the duly constituted
government of Jammu and Kashmir with the object of overthrowing it and
facilitating the annexation of the State's territory by Pakistan' (The
Guardian, London, September 19, 1962, and The Times, London, September
20, 1962, as cited on page 86 of The Constitution of Jammu & Kashmir,
Universal Law Publishing Pvt Ltd, New Delhi, third edition, 1998, by Dr
A S Anand, former chief justice of India.)
The matter was called the Kashmir
Conspiracy Case and resulted in Sheikh Abdullah being in jail till January
1958 when he was released, only to be rearrested in April that year. Final
charges were brought against him and others in August 1962 and the first
prosecution witness gave evidence in the special sessions court, Jammu,
on September 19 that year. Then, suddenly, the case was closed. Was Jawaharlal
Nehru, the long-time friend of Sheikh Sa'ab, the invisible potentate? Never
mind.
By then, however, considerable advance
had occurred in J&K's constitutional relationship with the rest of
India. Not only had the state's separate constitution seen the light of
day on November 17, 1956, with its intricate links to India, but also several
Indian parliamentary laws had become enforceable in J&K and many provisions
of the Indian Constitution had become valid for the state in toto or with
modifications. Those links had been effected by the President of India's
'Constitution (Application to Jammu and Kashmir) Order' of May 14, 1954
and its subsequent amendments from time to time -- all issued under Article
370 of the Indian Constitution.
Those links are what the 'pre-1953'
autonomy demand now seeks to break though all of them were forged after
the required consultation or concurrence of the reigning J&K government
as required by Article 370. In short, Sheikh Abdullah's son and grandson
want J&K to be reverted to that time zone when Sheikh Sa'ab was the
'Lion of Kashmir,' the Wazir-e-Azam of the once princely state of India.
To know what precisely the pre-1953
political status of J&K was, it is necessary to highlight what the
President's Constitution (Application to Jammu and Kashmir) Order of January
26, 1950 did before it was repealed by a similar Order of four years later
referred above.
The 1950 Order set out the constitutional
relationship that was to exist between J&K and the Union of India immediately
after the inauguration of the Indian Constitution. Of the 22 Parts of the
Indian document, the Order made only Parts V, XI, XII, XV, XVI, XVIII,
XIX, XX, XXI, and XXII (ten in all) applicable to J&K, and that too
with modifications in some provisions. Thus --
* The Supreme Court's original jurisdiction
was restricted only to Article 131 dealing with disputes between the Union
and the states. In all other matters, the apex court was given only appellate
jurisdiction.
* The Comptroller and Auditor General
was denied jurisdiction of J&K
* Unlike in other states, the representatives
of J&K to both Houses of the Indian Parliament were not to be elected
by the state's people but to be appointed by the President of India in
consultation with the J&K government. These appointed members were
however to be treated as elected members for the purpose of voting for
the post of the nation's President under Articles 54 and 55.
* Unlike in the case of other states,
Parliament's power of legislation with regard to J&K was limited to
the items on the Union List, subject, of course, to the constraint of Article
370. The State List and the Concurrent List of legislative items were not
applied to J&K.
* The taxes collected by the Union
or by the states on behalf of the Union remained exclusively under J&K's
control. Provisions dealing with the distribution of taxes collected by
the Union outside J&K did not apply to that state. Similarly, Article
280 relating to the finance commission was not applicable to J&K.
* The income tax department of J&K
was to be free of all central controls. The state was allowed its own customs
department that had been established during the British period.
* The Election Commission of India
had no jurisdiction other than that pertaining to elections for the posts
of President and vice-president of India. Elections to the J&K state
assembly were to be governed by the state's laws.
* The provision regarding reservation
of seats in the state assemblies was not applied to J&K Similarly,
the provision for appointment of a commission to investigate the conditions
of backwards classes or of a special officer for scheduled castes did not
apply to the state.
* The provision regarding official
language was restricted to dealing with Union and to the proceedings of
the Supreme Court. The directive for the development of the Hindi language
did not apply to J&K.
* Amendment of the Indian Constitution
relating to J&K needed not only the detailed requirements of the Article
concerned but also an Order of the President of India under Article 370.
More conspicuous is that all of
Parts I to IV, Parts VI to X, Part XIII, Part XIV and Part XVIII were not
made applicable to the J&K of pre-53. The critical constituents of
these omissions were:
* Citizens of J&K were not deemed
to be citizens of India!! (That diabolical wrong was corrected by the above-referred
Order of May 14, 1954, which conferred that citizenship with retrospective
effect from 1950).
* J&K citizens were denied the
fundamental rights elaborated in Articles 12 to 35 in Part III of the Indian
Constitution. (In order to distribute land to poor peasants, Sheikh Abdullah's
land reforms of 1949-50 expropriated estates above 182 kanals (about 23
acres) without paying any monetary compensation to the owners. Why, even
the state's Maharaja was denied his sovereign right in the matter -- his
assent was not obtained before the Sheikh announced the sweeping reforms).
* Directive Principles of State
Policy (including the establishment of a uniform civil code) contained
in Part IV of the Indian Constitution) were not applicable to J&K.
* Kashmir Service Regulations were
to prevail and employment in J&K was permitted to be restricted to
"state subjects" defined under a sovereign notification of April 20, 1927.
* Proclamation of general emergency
and financial emergency were not applicable to J&K. Its government
was exempted from being suspended by the Centre under Article 356.
Apart from all of the above, Arun
Shourie has pointed out an alarming anti-national facet of the demand of
the Abdullahs. In an interview published in The Times of India, Mumbai,
on July 8, 2000, he pointed out 'Financial integration of the state (J&K)
with the rest of India was brought about in 1954; once you go back to 1953,
the jurisdiction of the Reserve Bank goes, they get the right to have their
own currency.'
So do the Abdullahs want their faces
and signatures to ornament the currency notes in J&K? Those who sympathise
with their call for the pre-1953 status must answer that billion-dollar
question.
There is even a bigger question
that these Abdullah supporters must answer. Why did the J&K Autonomy
Committee's report not provide justification for its demand of reversing
the long list of Parliamentary laws it wanted reversed for the state?
In this context, it must be remembered
that the Indira Gandhi-Sheikh Abdullah accord of November 13, 1974 provided
that i. the state government's proposals for altering or repealing the
already modified application of any provision of the Indian Constitution
to J&K would be treated on merit ii. Parliamentary laws on the Concurrent
List extended to J&K after 1953 would be sympathetically considered
for amendment or repeal. But no proposal on either came from the Sheikh
Abdullah government, writes Jagmohan (currently a Union Cabinet minister
and formerly twice governor of J&K) in his edit-page article in The
Times of India, Mumbai, of July 11, 2000. Why?
The Abdullahs really have a lot
to answer if only the politicians and media confront their antecedents
and arrogance boldly and squarely. Unfortunately, there is nothing in the
pre-1953 model on that score which warrants such a hope.
Tailpiece: A reader of an earlier
column on autonomy ridiculed the 'ignorance' of the statement therein that
J&K was the only state to have its own flag. He is referred to page
121 of Dr Anand's above-referred book. In footnote 3 of that page, the
former chief justice says, 'Throughout India there is only one flag and
Kashmir is the only State which has its own flag in addition to the Union
flag.' Clearly, impudence is not the monopoly of the Abdullahs.
