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August 4, 1999


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E-Mail this column to a friend Arvind Lavakare

Biting the hand that feeds

It was as astounding as it was agonising. Even as the nation was recovering its breath from the Kargil crisis only to face increased terrorist activity in the surrounds of our paradise valley, a couple of senior English language journalists chose to highlight two three-month old reports on autonomy for Kashmir as a possible means "to win the hearts of the people" in that troubled part of our country.

Considering that Pakistan had, after eating crow in Kargil, quickly taken steps in the United States of America to peddle "self-determination for Kashmir" and two senators there had even more quickly proposed the appointment of a special envoy "who could recommend ways of ascertaining the wishes of the Kashmiri people," the two journalistic forays concerned must be considered as tantamount to stoking the embers of an Azad Kashmir this side of the Line of Control.

One of the two devil's advocates is the retired veteran scribe, B G Verghese; the second one is Harish Khare of The Hindu. The brief both pleaded is the contents of two "autonomy" documents received this April from Jammu and Kashmir: (i) Report of the State Autonomy Committee and (ii) Regional Autonomy Committee Report.

The RSAC, prepared under the chairmanship of Ghulam Mohiud-Din Shah, believes that Kashmir will go forward by....going back 47 years! Ergo, it wants the implementation of the 1952 Delhi Agreement (between the then Kashmir government of Sheikh Abdullah and the Indian government of Jawaharlal Nehru) wherein the most significant feature was that the legislative powers of India's Parliament be restricted only to matters of defence, external affairs and communications with minor exceptions; as a corollary, the Shah document wants to rescind all presidential orders which enabled Delhi to make many Parliament laws applicable to Jammu and Kashmir right from 1950; it also wants the Supreme Court to have limited jurisdiction in Jammu and Kashmir while the comptroller and auditor-general should have no jurisdiction whatsoever in Jammu and Kashmir's finances. To top it all, Ghulam Shah's committee believes that, though Jammu and Kashmir is already a special category state whereby 90 per cent of centrally devolved funds to it are grants, viability dictates "more financial resources and assistance" to it -- a classic case of eating the cake and having it too.

The RACR is less ambitious, more tentative. It has suggested two models for devolution of autonomy to various parts of Jammu and Kashmir. The first model seeks to reorganise the state into eight regions/provinces, each having earmarked executive and taxation powers. The second model is based on district councils which, in co-ordination with Panchayati Raj institutions, could become effective agents in augmenting the process of faster pace of development besides providing effective organs of local self-government. On the face of it, the report is nothing but a suggestion for administrative reforms entirely within the Jammu and Kashmir government's jurisdiction, and having no relevance to any ministry in Delhi. Why two devil's advocates should splash them in the press as being of national significance is inexplicable.

We are told that both the "autonomy" reports have become controversial though the RACR is itself indeterminate while the Shah document has, according to Khare, failed to excite the public imagination. Yet, The Hindu -baiter of the Vajpayee government wants a national debate on the two reports because, in his opinion, the international community appears intent on pressurising India for talks on Kashmir and because public opinion wants the nation to build bridges with the "alienated Kashmiri sentiments."

Verghese chooses to go overboard, almost ecstatic, on the two reports. He even visualises the eventuality that autonomy on the Indian side will not leave Islamabad untouched and that the latter will then be compelled to grant self-determination to those long-discontented people in its Azad Kashmir. Verghese thus foresees the two parts of Jammu and Kashmir becoming a zone of peace, jointly defended by India and Pakistan within the wider framework of a vibrant South Asian Association for Regional Cooperation.

This dream is indicative, alas, of how unmindful Verghese is about the colossal pain, in terms of human and financial resources, India has suffered for claiming all these years that the whole of Jammu and Kashmir is its rightful territory. In fact, all who plead for autonomy to Kashmir forget that, as will be shortly evident, Jammu and Kashmir has all along been the most autonomous Indian state ever since the princely domain legally acceded to free India in October 1947.

What is most exasperating is that nobody seems to have the guts to say that if Jammu and Kashmir is so poor and underdeveloped, it is not because of lack of autonomy but because of a long line of corrupt, self-seeking and scheming governments devoid of vision and passion for their people's advancement. It is these successive governments which have nurtured and fattened the concept that the Kashmiris are an ethnically elite class, Kashmiris first and Indians second... by deference, almost, but with the divine right to be forever kept afloat by the taxes, toil and tears of the non-Kashmiri Indians so that their own rulers can play golf in France and groom their heirs to take over their throne in due time.

Let me spell out the logic of my angst and my anger.

This first fact, which all living Kashmiris and their advocates must never forget, is that independent India did not compel their sovereign maharaja to accede to India in October 1947. He did so voluntarily, and did so legally, because he feared that the invaders from Pakistan would rape and ravage his beloved Srinagar, and perhaps imprison him too for life. The Indian armed forces that were sacrificed to save Kashmir then marked the first price we paid for that state's sake.

What we got in return, apart from unending and costly debates in the United Nations, was the authority to make parliamentary laws for Jammu and Kashmir only in respect of subjects related to defence, external affairs and communications. What we gave to Jammu and Kashmir was not only our protection and financial largesse but also the right to have its own constitution, distinct from the Constitution of India that was then being framed.

And when the latter became a reality on November 26, 1949 (to be effective two months thereafter), we gave Jammu and Kashmir a special status in it through Article 370 which, in essence, stipulates that while any parliamentary legislation would be automatically applicable to the whole of India, its application to Jammu and Kashmir would depend upon the President of India seeking the concurrence of the Jammu and Kashmir government. Thus it is that whatever parliamentary legislation (except on defence, external affairs and communications) is presently applicable to Jammu and Kashmir is only because the government of the Kashmir people agreed to transfer its legislative powers on those subjects to the Union of India. From 1950 till now, Jammu and Kashmir has, unlike any of the other 24 states, enjoyed complete residuary sovereignty. Where, then, is the so-called erosion of Jammu and Kashmir's autonomy?

Even today, there is a significant list of matters on which the Indian Parliament's legislation does not extend to Jammu and Kashmir. Below are only a few instances of that extraordinary anomaly:

* The law dealing with the Central Bureau of Investigation is not applicable to Jammu and Kashmir. (Our present chief justice saw possible serious consequences of this exclusion for India and Kashmir).

* No law of preventive detention made by the Indian Parliament will extend to Kashmir.

* No parliamentary law dealing with acquisition or requisition will extend to Jammu and Kashmir.

* Unlike in the rest of India, Parliament cannot declare that control by the Union of India of any industry or mineral development in Jammu and Kashmir is expedient in the public interest.

* Parliament cannot legislate in regard to ancient and historical monuments or archaeological sites and remains in Jammu and Kashmir.

* Parliament cannot legislate with respect to co-operative societies or non-corporations in Jammu and Kashmir even if their objects are not confined to one state.

* Parliament cannot legislate on inter-state migration with regard to Jammu and Kashmir.

Need one go on?

Article 370 of our Constitution is not the only protector of Jammu and Kashmir's autonomy. Article 352 is so framed that it would not be in the powers of the President of India to issue a Proclamation of Emergency on the grounds of internal disturbance in Jammu and Kashmir while he can do so in respect of any of the other states. A few other Articles also honour the autonomous existence of Jammu and Kashmir's own constitution. Hence, those who root for Jammu and Kashmir's autonomy would do well to read the book of Supreme Court Chief Justice Dr A S Anand on the constitution of Jammu and Kashmir.

Apart from lack of governments with dynamism and dedication, what has led to unemployment and poverty in Jammu and Kashmir is its obsession with Kashmiriyat, its insulation from vibrant economic forces in corporate India.

This insulation lies iron-cast in Jammu and Kashmir's constitution itself. That barrier is the one which gives all rights guaranteed under the Constitution of India only to Jammu and Kashmir's "Permanent Residents" as defined in Article 6 of the state's constitution. That phrase denotes ( a) one who, on May 14, 1954, was a state subject under the antiquated State Subject Act, 1927 or ( b) one who, having lawfully acquired immovable property in Jammu and Kashmir, had resided there for at least 10 years prior to May 14, 1954. Though the heir/heirs of either of the preceding two categories are also deemed as "Permanent Residents," critically implicit in the above construction is that no non-Kashmiri citizen of India can acquire immovable property in Jammu and Kashmir.

If only Jammu and Kashmir can open its doors to the likes of the Ambanis and the Tatas, Infosys and Wipro, there would be no need for agonising cries for more autonomy accompanied by more doles for development.

Meanwhile, our home ministry would do well to let the two recent reports on autonomy gather dust while it instead constitutes a committee, including Harish Khare, to chalk out an urgent action plan for restoring autonomy to the 300,000 Kashmiri Pandits who are for long languishing as exiles in their own homeland.

Arvind Lavakare

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