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 close 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 into J&K was finally scrapped in 1959,
although 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 insinuations 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 Articl 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 1 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 malpractice.
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 Departments
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!