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| July 10, 2000 | ||
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| AUTONOMY
CHRONICLE Twist with Destiny A state's history of constitutional squabbling By Ashok Malik
To be clever is a blessing. To be too clever by half could result in a ruinous legacy. In some ways, the contentious issue of autonomy that grips Jammu and Kashmir today is a direct fallout of the studied inaction of Maharaja Hari Singh, its last king. On August 15, 1947, when the new dominion of India was born, the princely states too became free agents. Soon 561 of them acceded to India. Hari Singh held out, a Hindu ruler of a Muslim majority kingdom, wooed by both Mohammed Ali Jinnah and Jawaharlal Nehru and hoping to bargain his way to quasi-independent status.
By October, the Pakistanis had lost patience and sent in rapacious tribals. On October 26, 1947, Hari Singh made an offer of accession to the governor-general of India: "The only alternative is to leave my state and my people to freebooters." As the Indian army moved in to thwart the invasion, Hari Singh in effect took a back seat. Sheikh Mohammed Abdullah of the National Conference (NC), the tallest politician in the state, was left in charge as interim prime minister. In its reply accepting the accession offer, the Indian government made the promise of a plebiscite as soon as the turbulence passed. Thus began a history that still troubles Jammu and Kashmir -- and India. With the Indo-Pakistani ceasefire of January 1, 1949, India's Kashmir problem moved to a legislative battleground. A third of the state was now in Pakistani hands. In the rest of the region, elections were held in 1951 to choose an assembly that would draw up a constitution and statutorily clarify the state's relationship with and entry into the Union of India. The NC swept the election and within a month put together an interim constitution. Jammu and Kashmir came to be granted special status under Article 370 of the Constitution, including in Part XXI under the rubric "Temporary and Transitional Provisions". The essence of the "special status" was that restrictions were placed on outsiders purchasing land, the nominal head of the state (sadr-e-riyasat) could only be appointed by the Centre after his selection had been approved by the provincial legislature and so on. The actual implementation of the broad Article 370 came through a presidential order called the Constitution (Application to Jammu and Kashmir) Order, 1950. Subsequently it has been amended from time to time by executive decisions and without need to be validated by Parliament. In essence, Parliament has approved Article 370. Settling the dynamics within it is the government's business. Sheikh Abdullah sought a "guarantee" of the perpetual nature of Article 370 and began making separatist noises. Violence ensued. In June 1953, Shyama Prasad Mukherji, Jan Sangh leader who had entered the state without the necessary permit, died in prison. By August, the Sheikh had been dismissed and arrested on conspiracy charges. Bakshi Ghulam Mohammed succeeded him. Meanwhile, the Constitution of Jammu and Kashmir was finalised and came into effect on January 26, 1957. The Sheikh was released for a short period in 1958 and then in 1964 but went back to prison on both occasions. State governments, heavily bankrolled by Delhi, ruled. The legal angularities keeping the state distinct from the rest of India began to be ironed out and the pre-1953 measures were slowly whittled down. The Sheikh's absence served its purpose. In 1974, the Sheikh's and Indira Gandhi's representatives began negotiations. By February 24, 1975, an accord was hammered out. It affirmed the continued relevance of Article 370. Nevertheless, it stopped short of reviving the nomenclature of sadr-e-riyasat and wazir-e-azam (for governor and chief minister), which had been abolished a decade earlier. It also rejected Sheikh Abdullah's demand that the jurisdiction of the Supreme Court and Election Commission (EC) be curtailed. The reason cited then, as relevant for the renewal of the demand by his son Farooq today, is that Jammu and Kashmir would be outside the ambit of checks and balances that the Constitution ensures for the rest of India. Subsequently, the Sheikh was sworn in as chief minister and asserted the "future of the state lies with India". Farooq's autonomy call can only very generously be seen in the prism of normal Centre-state relations. If it is entirely accepted, he will rule, an assembly dominated by his party will elect the sadr-e-riyasat, the Centre will not be able to dismiss his regime and the Supreme Court and EC will be powerless. If there is a medicine for Jammu and Kashmir's ills, it certainly isn't this.
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Kachmiries
are celebrated for their wit and are considered more intelligent and
ingenious than the Indians. - Francois Bernier, Travels in the
Mogul Empire 1656-1668