by M. P. Khosla
of consensus seems to be emerging for granting greater autonomy or restoration
of the pre-'53 position for Jammu and Kashmir as a long-range solution to the
Kashmir problem. There have been a good number of articles in the national Press
by seasoned columnists, as well as by responsible men in public life, favouring
such a policy approach.
Greater autonomy has
also become the catch- phrase of the major regional party of the State, the
National Conference (NC). The Government of India, as is evident from the
statements of leading politicians, is thinking on same lines, though, according
to Home Minister SB Chavan's latest statement in Parliament, the specifics of
the autonomy package are to be finalised after discussion with the real
representatives of the people of the State, who can only be identified after the
next Assembly elections. These are hopefully to be held before the expiry of the
present term of President's Rule in January 1996.
is based on the premise that as J&K enjoys a special status, the special
provisions emanating from Article 370 of the Indian Constitution that governs
the State's constitutional relationship with the Indian Union, have either not
been sincerely implemented or alternatively eroded after implementation. It is
this basic lapse, the argument runs further, which has resulted in the
estrangement of the people of the State from the national mainstream.
But a closer
examination of practical difficulties consequent on enlarged autonomy puts the
advisability of such a solution in doubt. The focus on the impracticability of
such a course of action gets further aggravated if viewed in the context of the
ongoing militancy and Pakistan's resolve to finish the "unfinished
business" of the partition of the sub-continent in 1947.
system for entry of Indian citizens some relaxations were made earlier. The re-
introduction of the permit system would mean that it will be more difficult for
Indian nationals, who are not permanent residents of J&K, to enter the State
than to enter foreign countries like Nepal and Bhutan, where no permit or
"no-objection certificate" is required.
Rights were available to the citizens of J&K under the earlier State
Constitutions of 1934 and 1939. The full ambit of Fundamental Rights guaranteed
under the Indian Constitution were extended to J&K after 1953. These were
incorporated in the J&K Constitution, which was adopted by J&K's
Constituent Assembly in 1956. The Supreme Court's power for issuing writs for
enforcement of these rights was extended after 1953. Even the J&K High Court
had no writ jurisdiction whatsoever till 1954.
Prior to 1965,
the Sadar-e-Riyasat was elected by the legislature. The head of the J&K
State became the appointee of the President of India that year, when the office
of the Sadar-e-Riyasat was transformed to that of the Governor. Mr. Karan Singh
was elected Sadar-e-Riyasat for the first time in 1951 when monarchical rule was
abolished and the change-over was smooth because Mr. Singh was at that time
already the incumbent sovereign as his father, the King, had left the State in
mid- '49. In the present context, an elected head of State cannot shed his
political colour and will have to play second fiddle to the Legislature. But if
the elected head of state does not see eye to eye with Government of India on
any issue, particularly in situations of internal or external emergency, the
writ of the President of India cannot run in J&K.
In the pre-'53
scenario, the President could exercise emergency powers only partly under
Article 352. Under J&K's own Constitution, there is provision for six months
Governor's rule in the event of failure of the Constitutional machinery. In
1964, Article 356 and 357 of the Indian Constitution were extended to J&K
giving emergency powers to the President in the event of the failure of the
Constitutional machinery. This is being extensively interpreted as erosion of
the State's autonomy.
But this power
has been exercised only twice in the three decades since the application of
Article 356-first in 1986 and then in 1990. President's Rule in other States has
been extended many more times. The present long spell of President's Rule can by
no stretch of imagination be called unjustified as the current situation in the
State poses a grave threat to the nation's territorial integrity and
sovereignty. If this provision is removed, what is the remedy we are left with
in abnormal situations like the present one? To term it as erosion of State's
autonomy is surely not something in consonance with a sense of proportion.
Indian Parliament were held in J&K for the first time in 1967, after
application of the '66 Constitutional Order, which substituted direct election
as in the rest of the country for six seats for Lok Sabha from the State,
against the earlier system of representation in Parliament by nomination after
indirect election by the Legislature. This indirect election was not by
proportional representation. In other words, the ruling group in the State would
decide who is to be represented in Parliament and not the people at large.
of the Comptroller and Auditor General was applied in J&K in 1958 when
Articles 149 and 150 and Entry 76 of List I of Schedule Seven of the Indian
Constitution were extended to the State. J&K's own revenues are so
inadequate that even in normal times the State finds it difficult to meet the
salary liability of its employees. In the absence of the CAG's jurisdiction, who
is to exercise a check on the use of funds?
Election Commission's authority in J&K was extended in stages from 1959,
culminating in vesting it fully by amendment of J&K's Constitution in 1967.
Unfortunately, the Election Commission's functioning in J&K has not been
free from blame. Except for the 1977 Assembly elections, all other elections
have been rigged in various degrees. The credit for the conduct of 1977 election
goes to Morarji Desai, who as Prime Minister took great personal interest in
ensuring free elections. However, to scrap the Election Commission's
jurisdiction at this stage would be a remedy worse than the disease of electoral
integration of the State was effectuated gradually by extending the functioning
of relevant Central departments, as well as by amendments to the Constitution
(Application to J&K) Order, 1954. The amalgamation of the State Customs
Department with Central Excise and Customs, the sharing of proceeds of taxes and
other levies as laid down in Part Twelve of the Indian Constitution, was
invariably to the benefit of J&K. If these financial links are sundered by
reverting to the pre-'53 position, J&K would be in grave financial
As for officers
of All-India services like the IAS and the IPS, who started getting inducted
into J&K in the early sixties, no great benefit accrues to the State if such
non-domiciliary officers are withdrawn. Although it is a comparatively minor
point because officers from J&K are as good or as bad as officers from
outside. Nevertheless, if All-India services cadres for J&K are wound up,
local officers would remain bound by a narrow outlook and not share the benefits
accruing from exposure to wider administrative experience, among other things,
by way of interchange and postings outside the State.
greater autonomy should ponder over these difficulties. It is not known if the
Central Government has done any internal in-depth assessment of the
administrative viability of any autonomy package. Also, the Central Government
ought to realise the risks involved in the autonomy solution, because later it
may not be possible for them to control the consequences of granting greater
autonomy to the State.
The crux of the
matter is that the line between greater autonomy and secession is not only
blurred but also does not exist !
"Pioneer", New Delhi: October 1, 1995)
Source: Koshur Samachar