Disequilibrium: COMMINUTED FRACTURE
As south Kashmir explodes in our faces, with a fatigued Army trying to get a handle on things, home minister Rajnath Singh has said that a permanent solution is ready. It will have to be done within the confines of a triangle with three reference points - Article 370, 1952 Delhi Agreement and Instrument of Accession
In American football, a famous coach once said – don’t throw the ‘ball to the receiver, throw where he is going to be’. The quarterback or the Field general as he is known has to throw to the receiver or where he is going to be for a successful play or touch down. The ball is like a tip of a spear, as it rotates towards the running receiver, it has the potential for a touch down only if it is grabbed well in time. Just to continue with this labored point, the Kashmir problem at the moment optically doesn’t have a quarter back or a running back or a receiver for that matter to take the analgous reference to its logical conclusion. The point here being that as south Kashmir explodes in our faces, with a fatigued Army trying to get a handle on things, home minister Rajnath Singh has said that a permanent solution is ready for Kashmir – “We have come up with a permanent solution to solve Kashmir. The initiative has begun. We are moving forward,” adding “We have never said no to talks. I went there (Kashmir) last year and stayed for three days for talks with all stakeholders. Those who wanted to talk came forward. Even (Chief Minister) Mehbooba Mufti had written a letter of invitation to separatists, but…”, ruling out a dialogue currently with the Hurriyat, he said whoever wanted to talk “development and peace” was welcome...
So, what is this permanent solution that the home minister is referring to? Is it a process to abrogate Article 370, which enables mobility of people by scrapping the singular impediment whereby only a state subject can buy property in the state? Does it mean that the sub national identity of Kashmiris in the Valley will finally be overrun as it will be subsumed by the larger pan Indian identity? Something that should have been thought of earlier for it has prevented the actual integration of J&K with the rest of India for the last 70 years. If that is the case, so be it. Abrogation of Article 370 is a complex affair, which requires legislation at both the state and central level. Another alternative is to look at Pre-1953 autonomy to J&K but this goes against the grain and is what Bharatiya Jan Sangh founder and iconic BJP ideologue Shyama Prasad Mookerjee opposed vehemently – he was strongly opposed to Article 370 seeing it as a threat to the unity of the country and fought against it inside and outside of Parliament with one of the goals of Bharatiya Jana Sangh being abrogation of the controversial Article. The state was granted its own Constitution, its own flag along with a Prime Minister whose permission was required for anyone to enter the state. In opposition to this, Mookerjee famously said, “Ek desh mein do Vidhan, do Pradhan aur Do Nishan nahi chalega” (A single country can’t have two Constitutions, two Prime Ministers, and two national emblems).
At the kernel of the Instrument of Accession signed by Maharaja Hari Singh on October 26, 1947 was: ‘Safeguard autonomy; cooperate with Union.’ The Instrument of Accession itself—executed in October 1947 and under which Maharaja Hari Singh handed over the State to India—had three specific clauses that remain relevant today:
Clause 3: “I accept the matters specified in the schedule hereto as the matters with respect to which the Dominion Legislature may make laws for this State”;
Clause 5: “The terms of this Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment is accepted by an instrument supplementary to this instrument”;
Clause 7: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”
# It should become clear that we are taking the position that our autonomy should be consistent with this document that is, autonomy should be in consonance with the Instrument of Accession
It is pertinent to note that in October 1949, Drafting Committee member Gopalaswami Ayyangar said before the Constituent Assembly: “We have also agreed that the will of the people through the Instrument of the Constituent Assembly will determine the Constitution of the State as well as the sphere of Union jurisdiction over the State….You will remember that several of these clauses provide for the concurrence of the Government of Jammu and Kashmir State. Now, these relate particularly to matters, which are not mentioned in the Instrument of Accession, and it is one of our commitments to the people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly, which may be called in the State for the purpose of framing its constitution. In other words, what we are committed to is that these additions are matters for the determination of the Constituent Assembly of the State.”
In 1951 when the Constituent Assembly of J&K was convened, Sheikh Mohd. Abdullah addressed the members and said, “You are no doubt aware of the scope of our present constitutionalities with India. We are proud to have our bonds with India, the goodwill of whose people and government is available to us in unstinted and abundant measure. The Constitution of India has provided for a federal union and in the distribution of sovereign powers has treated us differently from other constitutional units, with the exception of the items grouped under Defence, Foreign Affairs and Communication in the instrument of Accession. We have complete freedom to frame our constitution in the manner we like. In order to live and prosper as good partners in a common endeavour for the advancement of our people, I would advise that while safeguarding our autonomy to the fullest extent so as to enable us to have the liberty to build our country according to the best traditions and genius of our people, we may also by suitable constitutional arrangements with the Union, establish our right to seek and compel federal co-operation and assistance in this great task, as well as offer our fullest co-operation and assistance to the Union.”
The Delhi Agreement of July 1952 was supposedly an agreement between two individuals, Sheikh Abdullah and PM Nehru. After being signed, the Delhi Agreement was debated in the Lok Sabha on July 24, 1952 by Nehru. It was then adopted. The Rajya Sabha then discussed the agreement on August 5, 1952 and approved it. On August 11, 1952, Sher-i-Kashmir presented it before the Constituent Assembly of the State, which also gave its approval. It was, clearly, backed and authorised by the legislatures of both India and Kashmir giving it a stamp of finality. The salient points of the Delhi Agreement also need to be reiterated thus:
The decision to abolish the hereditary Dogra dynasty was accepted by New Delhi.
The Indian Citizenship Act was made applicable to the state, but the state legislature was empowered to regulate the rights and privileges of permanent residents, specially over acquisition of immovable property and appointment to services.
The right of state nationals who had gone to Pakistan or Pakistan-occupied Kashmir in 1947 or earlier, to return to their homes was acknowledged.
The President of India was empowered to declare a state of emergency in case of external danger, but in case of internal disturbance, the power could be exercised only at the request, or the concurrence of, the state government.
The President of India was empowered to grant reprieve and commute death sentences.
India’s agreement to the confiscation of jagirs without compensation shall permanently stand.
The state was allowed its own flag, which was the flag of the National Conference party.
The jurisdiction of the Supreme Court was extended to certain matters; and
It was agreed that Jammu and Ladakh should have cultural and regional autonomy.
What is ‘greater autonomy’, or the Pre-1953 position? The debate in the J & K Legislature expanded on this theme:
Congress leaders, especially Nehru, created an impression that it was essential to grant ‘Special Status’ to J&K due to its peculiar position.
The term ‘peculiar position’ led communal elements to interpret that Congress had accepted in principle that the 51 Muslim-majority character of the State shall be maintained at all cost.
The State was accorded ‘Special Status’ under Article 370 of the Indian Constitution with hardly any discussion in the Constituent Assembly.
In 1952 Delhi Agreement was concluded between Nehru & Sheikh to give practical shape to the ‘Special Status’.
Under the agreement, the State was given a separate Constitution and its own flag. The Head of the State and Government were given the nomenclature of Sadar-i-Riyasat and Wazir-i-Azam, respectively.
The people who wished to enter the State of J&K or go out were required to seek ‘Permit’ from state authorities.
The accession of J&K with Indian Union was accepted only in terms of three subjects, viz., Defence, Foreign Affairs and Communications.
Under the circumstances, the Jammu and Kashmir Praja Prishad launched a movement demanding Ek Pradhan, Ek Vidhan and Ek Nishan. More than a dozen workers sacrificed their lives at Hiranagar, Jourian, Sunderbani and Ramban and thousands were arrested.
Bharatiya Jan Sangh under Shyama Prasad Mookerjee launched a nationwide satyagrah in support of the movement. Dr Mookerjee entered the State on May 8, 1953 without ‘Permit’. He was arrested and sent to jail at Srinagar, where he died on June 23, 1953 under mysterious circumstances.
Sheikh Abdullah, who had succeeded in achieving maximum possible autonomy for the State, was found conspiring with American and Pakistani agents to separate J&K from the Indian Union. He was arrested on August 9, 1953, thus ending one phase of the separatist movement in J&K.
An erosion in the State’s autonomy set in between 1953-1975 as pliant governments in Kashmir did the Centre’s bidding. During this period, 13 steps were taken systematically – sometimes surreptitiously — to extend various provisions of Indian Constitution to the J&K State. The following are some of them:
By 1954 Presidential Order the operations of Customs, Central Excise, Civil Aviation, Post and Telegraphs were extended.
In 1958 All India Services – IAS, IPS was introduced and the functions of Comptroller and Auditor General were extended.
In 1959 the legislative entry relating to Census was applied, making way for the conduct of Census of 1961 under Central Law.
In 1960 J&K was brought under the jurisdiction of the Supreme Court. The jurisdiction of Election Commission of India was extended.
In 1964 Articles 356 and 357 of the Constitution were applied, making way for the introduction of President Rule in emergencies.
In 1965 a number of legislative entries relating to Welfare of Labour, Trade Unions, Social Security and Social Insurance, were applied.
In 1966 provisions related to direct elections to Lok Sabha were applied.
Since 1953 about 337 laws were extended to Jammu and Kashmir State, including those related to Chartered Accountants Law, Coinage Act, Conservation of Foreign Exchange and Prevention of Smuggler Activities Law, Contempt of Courts Law, Customs law, Copy Right Act, Dangerous Drugs Act, and Delimitation.
The visa-type ‘Permit System’ was abolished.
A general sense of ennui soon drifted into the Valley, with the people getting the sense that they had become more weak, as Delhi continued to push the envelope and enfeeble Article 370 and even the Delhi Agreement which, in itself, was the first such attempt at paving the way for full integration rather than limited autonomy. The bottom line was that Sheikh Abdullah signed off on the Delhi Agreement and then realised that his idea of an autonomous, even semi-independent Kashmir, was merely a delusion, an unreachable pie in the sky.
The State Autonomy Committee Report of 2000, which Farooq Abdullah is peddling in the capital once again—after long hours of angry deliberation in the J&K Legislative Assembly—is itself vague on specifics. It points to the 42 constitutional application orders that were issued making Union legislation applicable to the State between 1954 and 1986, as visible evidence of an “erosion of autonomy”. It then enters the plea that “not all of these orders can be objected to”, though “it is the principle that matters.” At the level of principle, the central government may have found it difficult to accept that the Constituent Assembly of Jammu and Kashmir ceased to have any legal validity after Sheikh Abdullah was dismissed from his post as Wazir-e-Azam and imprisoned in 1953. It was on this account that the accord negotiated between Sheikh Abdullah and Prime Minister Indira Gandhi in 1975 laid down strict limits on the scope of constitutional review. It allowed for a review of the constitutional provisions that had been applied to Jammu and Kashmir in a modified form, but affirmed that all provisions applied “without adaptation or modification” would be “unalterable”.
The July 4, 2000 meeting of the Union Cabinet called Farooq Abdullah’s autonomy demand “unacceptable” and threw it out. Instead, the ‘Autonomy for Jammu and Kashmir and the Restructuring of Indian Federalism’ was spelt out alliteratively by Narendra Modi, the then party general secretary in-charge of Jammu and Kashmir: development, democracy, dialogue, and the use of the defence forces. Now the same Party official, Modi is the PM and has the chance to make game-changing decisions.
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Columnist: 
Sandeep Bamzai
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