Impractical Solution

by M. P. Khosla

A sort 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.

 This viewpoint 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.

 The permit 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.

 No Fundamental 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.

 Elections to 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.

 The jurisdiction 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?

 The Union 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 malpractices.

 The financial 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 predicament.

 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.

 Protagonists of 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 !

 (Courtesy: "Pioneer", New Delhi: October 1, 1995)

Source: Koshur Samachar