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Walk backwards

J&K?s future set-up must be devised jointly by India and Pakistan as part of a wider accord on the future of the state, writes AG Noorani.

india Updated: Nov 22, 2006 03:38 IST
AG Noorani

In Kashmir, the National Conference (NC) and the People’s Democratic Party (PDP) are locked in a debate on ‘autonomy’ versus ‘self-rule’. The NC flourishes the Report of the Committee on Autonomy. It pegs autonomy at the Nehru-Sheikh Abdullah Delhi Agreement of 1952. The PDP leader, Mufti Mohammed Sayeed, said on September 23 that self-rule was originally guaranteed to the people of Jammu and Kashmir in the Instrument of Accession, 1947, and Article 370 of the Constitution, as it stood originally in 1950. He amplified on the theme on October 28 but was reminded by Abdul Rahim Rather, the NC’s leader of Opposition, that much of what he advocated was in the autonomy report; not all, though. Reportedly, the former Deputy Chief Minister, Muzaffar Hussain Baig, an accomplished lawyer, is preparing the PDP’s manifesto on self-rule.

There is no significant difference between autonomy and self-rule. As with beauty, the attractions of each lie in the eyes of its besotted beholder. Authorities like Thomas Musgrave and Suksi Markku regard them as being synonymous. Melissa Magliani regards “the autonomous Province of South Tyrol” as a “model of self-governance”. The issue, as Prime Minister Manmohan Singh pointed out on February 25, is “real empowerment to the people”. If President Pervez Musharraf finds ‘negative optics’ in autonomy, it is because of the abuses committed in its name, a sentiment widely shared in J&K. Article 370 has long been reduced to a husk. The Delhi Agreement is a moral, legal and political wreck. Its crucial provision, the election of J&K’s head of state, Sadar-i-Riyasat, by its assembly was superseded in 1965 by the appointment of a governor nominated by New Delhi.

J&K’s future set-up must be devised jointly by India and Pakistan as part of a wider accord on the future of the state and in full consultation with the people. It must apply equally to both sides of the LoC.

The task comprises three elements — J&K’s head of state, the quantum of power the state should enjoy and guarantees against abuse. A new constitutional order must be erected on the debris of the old and irrelevant one.

On June 12, 1952, J&K’s Constituent Assembly accepted the recommendation of its Basic Principles Committee, headed by Mirza Mohammad Afzal Beg, that “the office of the head of state shall be elective”. On July 20, in New Delhi, Nehru and four cabinet colleagues met Kashmir’s delegation, headed by Premier Sheikh Abdullah, after a week’s parleys. The Sheikh had to accept a change that made a mockery of the assembly’s decision. It was agreed that “the head of state shall be a person recognised by the President on the recommendation of the legislature of the state”. Worse, he could be sacked any time, without cause, by the Centre — “he shall hold office during the pleasure of the President”, ie the Government of India.

Article 310 (22) of India’s Constitution defined ‘ruler’ inter alia as “who for the time being is recognised by the President as the ruler of the state”. It was outrageous to apply a rule governing hereditary princes to a head of state elected by its assembly. Nehru explained the Delhi Agreement in Lok Sabha on July 24: “They recommend and then it is for the President to recognise.” He has the veto.

J&K’s Constituent Assembly amended the old Constitution to abolish monarchy from November 17,  1952. On August 9, 1953, Sheikh Abdullah, co-author of the Delhi Accord, was sacked as premier and put in jail for nearly 11 years. Article 27 of the Constitution, enacted by the rump assembly in his absence in 1956, toed Delhi’s line perfectly. “The Sadar-i-Riyasat shall be the person who for the time being is recognised by the President.” Period. Only a proviso provided for his election. But Article 28 said that he shall hold office “during the pleasure of the President”, i.e, the Indian government. J&K’s Constitution 6th Amendment Act, 1965, discarded the joke and provided for appointment of the state’s governor by the President. On July 23, 1975, by a mere executive order under Article 370, the Constitution of India was amended to bar J&K’s assembly from legislating on the governor’s appointment. The Delhi Agreement was wrecked twice over.

The integrity and independence of the office of head of state are crucial to any scheme of autonomy. In 1937, the Congress insisted on assurances of disavowal of the governor’s special ‘responsibilities’ before accepting offices in the provinces granted autonomy by the Government of India Act, 1935. The autonomy statute of South Tyrol provides for election of the region’s president and vice-president from among its own members, with a member each of the Italian and German language groups to serve rotationally in both posts. The President of Italy cannot veto their elections. It is a good model for J&K. Another is the accord of June 27, 1921, between Sweden and Finland on autonomy for the Aaland Islands. The governor is appointed by agreement between the President of Finland and the Aaland’s legislature. If they differ, the legislature recommends a panel of five for Finland’s President to choose from. In 2006, India can afford to discard the phobias of 1952-53.

Jammu’s concerns must be met. Under the ‘regional formula’ of Punjab in 1956, two regional committees of assembly were set up comprising MLAs of the Punjabi and Hindi-speaking regions. Each enjoyed a virtual veto on 14 specified topics dealing with social and economic development.

In 1970, the steering committee of the J&K State People’s Convention, convened by Sheikh Saheb, drew a scheme for “internal constitutional set-up” providing for devolution of power to the village level.

The quantum of power for each part of J&K must be decided between India and Pakistan along with ‘institutional arrangements’ for ‘joint management’. On publication of the scheme, elections must be held in both parts of J&K, followed by a joint convention of MLAs of the entire state. Based on the consensus in these public debates, India and Pakistan must modify the scheme and implement it in accordance with their respective constitutional processes.

Article 370 is flexible enough to enable final redress of wrongs done by its abuse. In 1995, the then Prime Minister, PV Narasimha Rao, promised maximum autonomy short of independence (“The sky is the limit”). On November 5, 1995, the NC presented him with a convincing memo to show that Article 370 “is not and cannot just be a one-way stream”. It can be used to return to J&K the powers the Centre grabbed unconstitutionally from 1952 onwards. The details are negotiable once the principle of return is accepted. A final order under Article 370 can cancel all past orders.

The constitutional set-up in Pakistan-administered Kashmir is far worse. The interim constitution of 1974 empowers Islamabad to ride roughshod over Muzaffarabad. There is not a vestige of autonomy or self-rule. An ugly visage confronts the most ardent beholder.