Outlines of a J&K Road Map

Two rounds of panchayat polling in J&K notched up a healthy 80 percent turnout despite calls for a poll boycott. What lies ahead?

By B G Verghese

New Indian Express, 9 May, 2011

The Osama bin Laden episode changes little for India. However, Pakistan faces further obloquy and another taste of nemesis for its corrosive and obsessive Two Nation-Kashmir "ideology" The J&K Interlocutors have announced they are preparing to submit an interim road map for the state to the Union Government. They have met various political and civil society groups. Maulana Abbas Ansari, the Shia leader, broke ranks with the Hurriyat to meet them. The response was his suspension from the organisation, which further exposes the timidity and futility of a bunch of fearful and confused men who cannot extricate themselves from the limbo into which they have consigned themselves. And this while two more rounds of panchayat polling in J&K have continued to notch an 80 percent turnout against their pathetic poll boycott plea. Nonetheless, the door should be kept ajar for them, should better sense prevail. However, they must know – as their mentors in Pakistan – that they hold no veto. The caravan will move on. The people wish it. Hope is beginning to trump fear.

The Interlocutors have heard many a tale of woe and have passed on such complaints to the State administration for necessary action. This has been slow in forthcoming as a creaking administration is part of the problem. A more purposeful remedy may lie in seconding an official grievance redressal commissioner to the Interlocutors to pursue complaints and post progress reports on the web.

Though human rights issues must be addressed and CBMs instituted at various levels, the gut issues revolve around a three tier Centre-State, intra-provincial and sub-regional settlement, capped in due course by a trans-LOC/Indo-Pakistan settlement on which consensus appears to be building on both sides that the Manmohan-Musharraf package envisaging interaction and institution-building across a permanent soft border along the LOC offers a fair and practical solution. Never forget that Nehru and Sheikh Abdullah advocated such a confederal solution in 1964.

How does one set about this task? Everybody has had decades to think the matter through and if they now seek more time it only means that they are spoilers or have nothing to contribute. Neither Pakistan nor the unhappy people of PAK or Gilgit- Baltistan have any locus standi on how India resolves its internal problems within J&K. They have enough to do to gain “self-determination” against their own colonial status within Pakistan, fighting demographic change, with many leaders in exile for refusing to accept the “ideology of accession to Pakistan” as constitutionally ordained.

Many ideas have been put forward for an internal J&K solution within India. First among these are the terms of Accession, embodied in Article 370 and subsequently expanded by the Delhi Agreement of 1952. Defence, Foreign Affairs and Communications, the original heads of accession, include 37 out of 97 entries in the Union List (Schedule 7). If incidental and ancillary powers are also taken into account, such as those pertaining to the President, Parliament, the UPSC, Union employees, the Census, Survey of India, weights and measures and inter-state commerce, the list would expand to about 83 entries.

The 1950 Presidential Order, amplified by the Delhi Agreement of 1952, spelt out some of these details. It limited the role of the Supreme Court to appellate matters, barred the jurisdiction of the CAG, and limited Union emergency powers to action against external aggression and quelling internal disturbances, the latter at the request or with the concurrence of the State administration. Fundamental rights would apply with such modifications as might be determined. The State would conduct its own elections and its legislature elect a Sadr-i-Riyasat acceptable to the Centre who would then be appointed by the President. It would have a separate flag, grant special rights to “state subjects”, and retain all residuary powers.

With the States having exclusive jurisdiction over the State List (enabling J&K to frame its own constitution), the real bone of contention, if at all, related to the Concurrent List. There was some “erosion” of J&K’s power by this means subsequent to the Sheikh’s arrest, but the latter found little to quarrel with when the matter was reviewed in 1975 under the Indira-Sheikh accord.

This is an incomplete narrative but broadly sums up the quantum of autonomy enjoyed by J&K. This is more than in most states, which are also asserting “states’ rights” and a new federalism outside parts of the Northeast, and more than what is enjoyed by Pakistan's provinces.

Nevertheless, if a considerable number of people in J&K wish to re-negotiate autonomy (Centre-State relations) so be it. Geelani, the Jamaat leader, seeks accession to Pakistan. However, there can and will be no second partition of India on the basis of the vicious two-nation theory. This is unacceptable. Three other proposals have been formally mooted. The J&K Assembly in 2000 unanimously adopted a NC resolution favouring a return to 1953. This was regrettably rejected by the NDA government without discussion. The PDP has more accommodatingly suggested “Self Rule”, which seeks autonomy within the ambit of Article 370 with more liberal federal relationships. Sajjad Lone’s “Achievable Nationhood” seeks shared sovereignty between India and J&K and Pakistan and its part of J&K with mechanisms for mutual coordination of trans-LOC affairs. All proposals would give permanence to Article 370 as defining a special rather than a temporary relationship with the Union.

The Centre for Dialogue and Reconciliation (Delhi) and Epilogue, a Srinagar magazine, have put together useful summaries which can be the starting point for a round table to reach a consensus. Rather than follow the conventional GOI method of taking the present as given and working backwards, it would be far better to take the 1953 consensus within J&K as the base position and the see what constitutional additions, if any, find general acceptance. This would put the onus of agreement and consensus building on the people of J&K, with the proviso that this formulation must also yield provincial, regional and sub-regional consensus on devolution, with foundations in a strongly empowered panchayati raj system which could accommodate and cater to a great many local pluralisms, ethnicities and cultural particularities. Once the onus is on the people they will tend to opt for unity and national coherence rather than fragmentation and isolation. Many will favour the jurisdiction of the UPSC, Supreme Court, Central Election Commission, CAG ad similar institutions.

A special legal-cum-administrative team should be set up to see how differential devolution or upward and downward entrustment is possible through the constitutional mechanisms of Article 258 and 258-A which have been innovatively used in the Northeast, together with the concept of non-territorial councils.

J&K is special and no domino. As far back as 1984 the Supreme Court held in the Khazan Chand case that J&K ‘holds a special position in the constitutional set up of our country”. One must not forget the cardinal axiom that India’s unity depends on celebrating its diversity. Current debate is noisy and illiterate with much punditry based on rank ignorance of history, the relevant constitutions and ground realities, not least within J&K itself and the principal protagonists in Delhi and Islamabad. When will they ever learn?

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