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While replying to the debate on extension of President's
rule in Jammu and Kashmir, Prime Minister H. D. Deve
Gowda said in the Lok Sabha on July 12. 1996: "What has
happened in the past would not help. It will be a futile
exercise" (The Hindustan Times; July 13, 1996). The
Prime Minister was apparently referring to my exposition
of the historical developments with regard to the issue
of Jammu and Kashmir autonomy to show how dangerous and
superficial were the notions of "maximum autonomy".
"Kashmir- Short of Azadi" and "pre-1952/53 status", and
how these notions were based on incorrect facts and how
they ignored the "nuts" and "bolts" of working
relationship. He did not seem to realise that those who
do not see the events through the 'spectacle of history'
are bound to Set a bluffed view and take faulty
decisions.
Our decision-makers may do well to remember that "there
is", as Walter Benjamin puts it. ..always a secret
agreement between the past and the present". Even
otherwise, to be aware of the present without being aware
of the past is to take a narrow view of reality. Cicero
rightly observed: "Not to know what took place before you
were born is to remain for ever a child".
It was the lack of historical sense and respect for solid
facts embedded in the past that led the senior Ministers
of the United Front Government to make different
statements on Kashmir .autonomy. Defence Minister
Mulayam Singh said one thing, Home Minister Indrajit
Gupta another and Prime Minister H. D. Deve Gowda yet
another. These statements showed that, if facts and
history were ignored. nothing but confusion would result.
At every turning point of Kashmir's history since October
1947, the decision-makers became a victim of their
blurred vision and took the wrong direction. Now,
another wrong turn is being taken, And this may prove to
be the most disastrous of all.
At the moment. fatigue is setting in amongst the
militants, and events could be given a favourable turn by
repairing and strengthening the integrative links. But
our decision-makers seem bell-bent on closing the window
of opportunity and instead planting new seeds of disarray
and disruption which are bound to yield, sooner or later,
another thick and thorny harvest of turmoil and
turbulence in Kashmir. The cycle of destroying from
within what is defended by the armed forces from without
is likely to be repeated once again.
It is unfortunate that neither did the Narasimha Rao
Government assess nor is the Deve Gowda Government
assessing the deeper implications of the expression
'maximum autonomy'.
The Poor understanding of the Narasimha Rao Government
was evident from the statement he made on May 17, 1995 in
the Rajya Sabha. He said: "I can see some fight at the
end of the tunnel. By Azadi, the Kashmiri leaders may
not mean total independence." The declaration of the
United Front Government about maximum autonomy being
granted to Kashmir is hardly different from this
statement.
I have no doubt that, if leaden like Narasimha Rao and
Deve Gowda persist with theft present approach, they
would cause new complication and make the future of
Kashmir more uncertain and troublesome. Both of them fad
to make a distinction between autonomy that leads to
efficiency in administration. speed in development and
fuller relation of creative potential of a community and
autonomy that breeds separatism, subversion and secession
and provides fillip to the forces of parochialism and
chauvinism. Both of them also do not realise that it is
not the absence. but the surfeit, of powers that has
given rise to a number of maladies from which Kashmir is
presently suffering. And these powers have been misused
with impunity to set up a self-serving oligarchy which
developed a vested interest to encourage pro-Pakistan and
anti-India sentiments. In the process, the common
Kashmiri - the deprived and disprivileged - has suffered.
He, in fact. has been exploited and prevented from
realising that his interest lay in development and
removal of poverty, ignorance and disease, and not in
Article 370 or contrived notions of 'identity'.
`personality' or ethnicity.
To clear the cobwebs in the thinking of the United Front
Government on the issue of maximum autonomy and for the
public to have a clear picture. it is necessary to
recapitulate the past development. state the current
legal and constitutional position and spell out its
implications.
After the execution of the Instrument of Accession on
October 27, 1947, and adoption of the Indian Constitution
on January 26, 1950, the Jammu and Kashmir State was
irrevocably brought under the territorial and
constitutional jurisdiction of India. Article 1 made it a
permanent part of the Indian Union. Article 370 provided
for a special relationship which, to use the words of
Jawaharlal Nehru, was temporary. While making a statement
on the Delhi Agreement in Pakistan in Parliament on July
24, 1952, he said: "We all wanted to leave it in a fluid
condition because of the various factors and gradually to
develop the relation - legal and constitutional
relations. As a result of this, a rather unusual
provision was made in our Constitution. That provision is
now in Article 370, in Part XXI, Temporary and
Transitional Provisions."
The sum and substance of Article 370 is that in addition
to Defence, Foreign Affairs and Communication, the Union
Parliament can make with regard to the items in the Union
and Concurrent Lists, but only with the concurrence of
the State Government.
Obviously, after accession and provision of Article of
370, a working relationship had to be established between
the State of Jammu and Kashmir and the Union. The order
princely states were grouped or merged in the
neighbouring states and their territories acquired the
same constitutional status and their people the same
rights as accorded to the territories and people of other
states of the Indian Union. But the vision and resolve
which were shown for the integration of other princely
states were conspicuous by their absence in the case of
Jammu and Kashmir.
To define, in precise terms, the constitutional, legal,
financial and administrative relations, a series of
meetings took place between the representatives of the
Union and the states. By that time, Sheikh Abdullah had
started nursing ambitions of his own. He took full
advantage of India's difficulty with regard to holding of
a plebiscite in the State, and demanded for more powers
for the State than were justified for establishing a
smooth, sound and stable relationship with the Union. The
representative of the Government of India were
disappointed by the attitude of Sheikh Abdullah regarding
quite a few matters, but the tendency at that time was to
gloss over the difference and hope that issues would be
straightened out in course of time.
After prolonged discussions, a broad consensus, loosely
called the Delhi Agreement (July, 1952) was arrived at.
It provided for abolition of the hereditary rulership;
vesting of the residuary and `concurrent' powers in the
State; continuance of special citizenship rights for the
`State subjects'; flying of a separate flag for the State
with the national flag also finding a `supremely distinct
place'; and subject to certain limitations, extension of
provision of the Indian Constitution to the State.
Immediately after the `Delhi Agreement', Sheikh Abdullah
proceeded to abolish the institution in hereditary
Maharaja and got the necessary resolution passed in the
State Constituent Assembly on August 21, 1952.
Under the new arrangements, the Head of the State was
designated as the `Sadar-e-Riyasat'. He was to be elected
by the State Legislative Assembly for a period of five
years from amongst the person who were "State Subjects of
Class I". He was to be recognised by the President of
India and to hold office at his pleasure.
Unless accompanied by sincere and earnest intentions,
agreements, treaties and conventions are hardly anything
but mere scrap of papers. In the case of the `Delhi
Agreement', it was precisely the sincerity and
earnestness that was lacking on the part of Sheikh
Abdullah. Whatever suited him, he got it implemented
immediately. But with regard to items which made for the
greater integration of the State with the Union, he
started stalling implementation by referring these items
to some sub-committee of the State Constituent Assembly
or the other. He thus created a state of uncertainty. His
tactics upset even Nehru. On August 6 and 7, 1952, Nehru
wrote two letters to Sheikh Abdullah in which he
expressed his deep disappointed. In utter exasperation,
he again wrote to Sheikh Abdullah on June 28, 1953: "To
me it has been a major surprise that settlement arrived
at between us should be by-passed or repudiated. That
strikes at the root of all confidence. My honour is bound
up with my word."
Those who are presently talking about the alleged
violation of the `Delhi Agreement' or demanding
restoration of pre-1952/1953 status ignore not only the
practical aspect of establishing a working relationship
between the state and the Union but also suppress
developments that followed this `Agreement'.
It was only after Bakshi Ghulam Mohammad became head of
Jammu and Kashmir Government that the Delhi Agreement
(July 1952) began to be implemented and various legal and
constitutional measures were taken to end the confusion
and contradiction in the situation and bring about
workable arrangements in the political as well as
administrative areas. It must have been clear too a
leader of Sheikh Abdullah's intelligence that these
arrangement could not, in any way, underline the
`identity' or `personality' of Kashmir. But he was
actuated by different consideration. The bogey of
`identity' or `personality' or `independence of Kashmir'
was made merely a cover for his own ends of power. The
truth is that by the beginning of 1948, Sheikh Abdullah
had become over-ambitious. And he started thinking and
working for a sort of Sheikhdom under his hegemony. In
acquiring this frame of mind, Sheikh Abdullah was
encouraged by the Anglo-American block. There is plethora
of hard evidence which supports this contention.
The process of giving a concrete shape to the Delhi
Agreement was set in motion by the promulgation of the
Constitution (Application to Jammu and Kashmir) Order,
1954, by the President of India. This Order was amended
from time to time, extending a few provisions of the
Indian Constitution to the State. Financial integration
was effected through the 1954 President Order, and the
jurisdiction of customs, centred excise, post and
telegraph and civil aviation were extended. The
jurisdiction of Comptroller and Auditor-General was
extended in 1958. In 1959, the legislative entry relating
to the Census was applied. In 1960, the Supreme Court was
given powers to entertain `special leave to appeal' from
the division of the J and K High Court. The supervisory
role of the Election Commission of India was also
allowed, though the elections continued to be held under
the laws of the State. Articles 356 and 357 of the Indian
Constitution were extended in 1964 and some Central
labour laws in 1965. In 1968, Entry 72 of the Union List,
which provides for appeals to the Supreme Court from the
decisions of the High Court on election petitions, was
extended.
In view of these `extension' and `applications', the
nomenclature, status, functions and mode of appointment
of Sadar-e-Riyasat and the Prime Minister of Jammu and
Kashmir became anachronistic. It was, therefore,
considered necessary and proper to change the
nomenclature and mode of appointment of Sadar-e-Riyasat
and also the nomenclature of the Prime Minister.
Necessary changes in this regard were effected in 1966 by
the State Legislature itself by way of amendment of the
Jammu and Kashmir Constitution. This happened during the
time when the State Government was headed by G M Sadiq.
What is wrong with these modification? In what way do
they harm the interest of the common Kashmir or undermine
his identity, his religions, his culture, his language or
any other aspiration? They merely establish a smoother.
constitutional, administrative and financial arrangement.
And they were brought about with the full concurrence of
the State Government. Those who find fault with these
changes on the ground that they were effected in the
absence of Sheikh Abdullah from the scene, forget that it
is not the individuals the Union and State Government
that are relevant in this regard.
Moreover, there is still a vast area which remains under
the exclusive jurisdiction of the State government. It
includes a substantial portion of the Concurrent List
citizens of India are not ipso facto the citizens of
Jammu and Kashmir. Even it they have been residing in the
State for years, they cannot acquire right of settlement
and hold property in the State. They have no right to
vote in the election to the State Assembly or the local
bodies or the panchayats. What is worse, a woman citizen
of and J and K loses her property and other rights if she
marries a non-State subject. No declarations of financial
emergency can be made with regard to J and K as article
360 of the Indian Constitution has not been applied to
it. Article 365, which authorises the President of India
to issue directions to the State Government, in exercise
of the executive power of the Union, has not also been
extended to J and K. Article 352, too, has only limited
application. After the Bangladesh war and in the context
of the changed circumstances, negotiations took place
between the representatives of Sheikh Abdullah and Mrs
Indira Gandhi. As a result thereof, what is known as
Kashmir Accord was signed in February, 1975.
In essence, the Kashmir Accord did not change the
constitutional relationship between the Union and the
State. It was primarily a device to bring Sheikh Abdullah
back to power and also give an impression that certain
aspects relating to autonomy could be reviewed.
Neither the Government if Sheikh Abdullah nor that Dr
Farooq Abdullah could formulate, in concrete terms, any
proposal and send the same to the Government of India,
with regard to withdrawal of any law of provision of the
Indian Constitution which had been extended to the State
during the period August, 1953 to February, 1975. In
reply to my Unstarred Question No. 1871 in the Rajya
Sabha, the Government of India stated on December 14,
1995: "The State Government did not propose withdrawal of
any law or constitutional provision extended to the State
during the period prior to 1975."
The reason why, in spite of the provision for review in
the Kashmir Accord, no change was sought was that all the
measures enforced during the period August, 1953 to
February, 1975 were necessitated by practical
considerations and were in the interest of the common
citizen of the State. What objection, for instance, could
be taken to the extension of jurisdiction of the Election
Commission of the Supreme Court of the Comptroller and
Auditor General of India? These extension merely make
available better justice and better accounting and audit
arrangements. What fault, again could be found with
labour welfare laws? In what why do they militate against
the identity or personality of Kashmir? The truth if that
the bogey that was raised by Sheikh Abdullah about
erosion of Kashmir's autonomy was nothing but a ruse to
exploit the constitutional ignorance of the common
Kashmir and to present himself to the people as a
champion of their cause.
Those who demand pre-1952/53 status or advocate maximum
autonomy of Jammu and Kashmir take care not to address
themselves to concrete questions. They remain
conveniently vague and show little respect to the
practical implications of their stand. For instance, they
suppress the fact that, in the absence of full financial
integration with the Union, Jammu and Kashmir would have
no resource at all for development. It is the Union
finances that provide the entire funds for the State's
five year Plans and also for a substantial part of the
non-Plan expenditure. According to the Reserve Bank
bulletin (December, 1995; Appendix I & II), per capita
Central assistance for 1994-95 was Rs 3,010 for J & K, as
against Rs 190 for Bihar, Rs 305 for Tamil Nadu Rs 385
for Rajasthan and Rs 341 for UP. In case of J & K, 90 per
cent of this assistance is in the shape of grants and 10
cent as loans; while for the four States mentioned
above, it is 30 per cent grants and 70 per cent loans.
Likewise, per cent capita non-Plan grants for J & K in
the same year comes to Rs 720 while it is Rs 72 for
Bihar, Rs 23 for Tamil Nadu, Rs 81 for Rajasthan and Rs
23 for UP. All this shows the tremendous gains that have
flowed to the J & K State from the financial link with
the Union. What will happen if this link is now ended?
Who will fill in the gap? Will it not be the United
States and the other Western powers? And will it not
place Kashmir virtually in their hands?
Take, likewise, another example - extension of Article
356 of the Indian Constitution which enables the
President of India to bring the State under his rule. It
is often said that this extension constitutes an
encroachment on the State's autonomy. But no one asks a
connected questions: If there is a breakdown of the
constitutional machinery in the State or if the State
refuses to comply with any direction concerning with any
direction concerning Defence. Foreign Affairs or
Communications, what will happen in the absence of
President's powers under has the corresponding powers;
then does it not mean that the President would have to
submit to the decision of the Governor, his own
appointee? Again, suppose the Governor is made Sadar-e-
Riyasat, who is elected by the State Assembly, then,
would not granting the final say to the Sadar-e-Riyasat
amount to subordinating the Union to subordinating the
Union to the State? And if the President with draws his
recognition of the Sadar-e-Riyasat but the State Assembly
once again elects the same person as Sadar-e-Riyasat,
will it not cause a constitutional deadlock?
If funds continue to flow to Kashmir from the Union, as
at present, and it is allowed, as is being advocated in
certain quarters, to have an exclusive say on subjects
other than Defence, External Affairs and Communications,
it could enact Islamic civil and criminal laws and even
set up Shariat courts, on the same lines as has been
done in Pakistan, and make it virtually a theocratic
entity. Would not such a scenario do violence to the very
preamble of our Constitution and also amount to
secularism financing theocracy and that, too, propelled
by forces of bigotry and fundamentalism?
The problem of Jammu and Kashmir has not been
insufficiency but surfeit of powers. During 1977-82, for
example, Sheikh Abdullah established a sort of elective
dictatorship in the State. He practically acted like a
monarch of all that he surveyed. No one even checked him
from doing what was, on the face of it, wrong. His
recruitment of the erstwhile die-hard workers of the
Plebiscite Front, the AI-Fatah and such other subversive
organisations, in sensitive departments like police, was,
obviously, fraught with grave risks to the security and
stability of the State. And yet he could go ahead
unhindered either by the Governor of the State or by the
Union Government. The Resettlement Act, 1982, legislated
during Sheikh Abdullah's regime and formally enacted
during Dr Farooq Abdullah's time, showed what a vast area
of power was available to the State Government.
It is not in the erosion of autonomy but in the erosion
of earnestness and sincerity that the seeds of numerous
troubles of Kashmir are embedded. There are a great many
instruments of power that are available to the State
leaders but they have been used less in the service of
the State than in the service of the self.
The crucial questions that need no be asked of the
singers of the autonomy ode are: Do they want more
autonomy to enact a legislation like the one referred to
above? In what way is any welfare work or work of
development help up for want of power? Where is any law
or executive order or judicial pronouncement that has
undermined the personality or identity of Kashmir or
altered its sculpture or spiritual landscape? What will
happen in the absence of flow of Union funds? If such
funds continue to flow, how will it be ensured that a
secular entity does not feed and prop up a theocratic
one? And how will the challenge of fundamentalist forces
from within be met?
If one shares off the impact of what is dished out to the
Press and published in abundance, one would discover that
the advocates of more autonomy or of pre-1952/53 position
are misleading the people, planting untenable and
unworkable notions on their minds and arousing false and
dangerous hopes. They are, wittingly or unwittingly,
strengthening those forces which have been working, both
beneath and above the surface from 1948 onwards, for
securing secession and establishing `Sheikhdom' in
Kashmir in one form or the other. For what is inspired
by `more autonomy' today will mean `independence'
tomorrow. Such a development would have serious
repercussions and ultimately lead to Balkanisation of
India with all its bloody and tumultuous consequences.
It is, indeed, tragic that to serve their ends of power
quite a few of our leaders are confusing the people,
dividing them and indirectly facilitating the task to
those who want to see a torn ad tormented India, an India
that is continuously at war with itself.
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