How special is J&K, really?

It is disappointing that the interlocutors could not express an opinion on the mockery made of J&K’s ‘special status’ by successive Central governments

The final report of the group of interlocutors for Jammu and Kashmir is now in the public domain. Titled “A New Compact with the People of Jammu and Kashmir”, the report makes a series of sensible suggestions on several matters. But its stance and recommendations on certain core issues underscore the limitations of an apolitical group of experts, however well intentioned, in dealing with a thorny political question.
A key recommendation of the report is to set up a “constitutional committee” to review all articles and acts of the Indian Constitution that have been extended to Jammu and Kashmir since the Delhi Agreement of 1952 between Jawaharlal Nehru and Sheikh Abdullah. The aim of such a review will be “to determine whether — and to what extent” the special status of Jammu and Kashmir under Article 370 has been undermined. This committee should be headed by “an eminent personality” who enjoys the confidence of the people of the state and of India as a whole. Its members should include constitutional experts “who enjoy the confidence of all major stakeholders”. The committee’s conclusions, to be reached within six months, “will be binding on all of them.”
It is disappointing to see that the interlocutors could not bring themselves to express an opinion on the mockery made of Jammu and Kashmir’s “special status” by successive Central governments. After all, the gross abuses of Article 370 by New Delhi are very well documented. What we got instead was one committee recommending the creation of another committee to look into this matter.
Then again, we have been through a similar exercise quite recently. Following the second Round Table Conference convened by Prime Minister Manmohan Singh in May 2006, five working groups were set up, one of which was on Centre-state relations. This group was headed by Justice (Retd.) Saghir Ahmad, former Chief Justice of Jammu and Kashmir high court and a Supreme Court judge. This group’s report, submitted in December 2009, skirted most of the difficult issues and reached the mealy-mouthed conclusion that the question of autonomy “can be examined in the light of the Kashmir Accord or in some other manner or on the basis of some other formula as the present Prime Minister may deem fit”.
So the interlocutors’ assumption that a “constitutional committee” will not only resolve the issues over autonomy but also impose its solution on all stakeholders betrays political naiveté. While the issue of autonomy certainly involves a thicket of constitutional matters, their resolution will have to be fundamentally political.
Article 370 guaranteed J&K’s autonomy by restricting the Union’s legislative power to foreign affairs, defence and communications. To extend other provisions of the Indian Constitution — fundamental rights, for example — the state government’s prior concurrence would have to be obtained. Further, this concurrence would have to be upheld by the Constituent Assembly of J&K, so that the provisions get reflected in the state’s Constitution. This implied that once J&K’s Constituent Assembly met, framed the state’s Constitution and dissolved, there could be no further extension of the Union’s legislative power.
However, successive governments in New Delhi have acted as if the state’s legislature could give concurrence to presidential orders under Article 370 even after the Constituent Assembly had wound up in 1956. This has enabled the Union government to undermine the autonomy of J&K by continually extending the provisions of the Indian constitution to the state. Worse, it has enabled New Delhi to do things vis-à-vis Kashmir by presidential orders — such as imposing President’s Rule without amending the Indian Constitution. So much for the “special status” of Jammu and Kashmir.
There is a further twist to the tangle. Even if New Delhi now agrees that Article 370 was misused in the past and seeks to repeal the provisions that have corroded the state’s autonomy — to ensure that such abuses are not repeated — it will have to do so by a presidential order under Article 370. Strictly speaking, this will require the concurrence of the state — not of the present legislature but of the now extinct Constituent Assembly. This is, of course, impossible. The only practical alternative is to issue a presidential order that has the concurrence of the current state legislature. In other words, the constitutional wrongs of the past can only be corrected by another unconstitutional measure.
Hence, the need for a political settlement that recognises the deep hole into which we have dug ourselves and works towards provisions of autonomy that have wide acceptability. This will entail serious political negotiations and considerable political judgment. A “constitutional committee”, as envisaged by the interlocutors, can hardly arrive at and impose such a settlement. At the most, it can assist the political negotiators with the finer points of the law. Eventually there has to be a political consensus that upholds the need for redressing historical wrongs, even if by adopting a measure whose constitutionality can be challenged in the courts.
On the other key component of meaningful autonomy — the constitutional position of the state’s governor — the report does take a position. It suggests that the President should appoint the governor from a panel of three names suggested by the state government and that the governor should hold office at the pleasure of the President. The assumption that this will insulate the governor’s office from political machinations by the Central government reflects a poor understanding of the history of New Delhi-Srinagar relations. Nothing short of reverting to the earlier system of an elected governor will strengthen the autonomy of Jammu and Kashmir.
Finally, the report outlines several useful confidence-building measures. But on the Armed Forces (Special Powers) Act (AFSPA), it calls for nothing more than a review. The prevailing sentiment against AFSPA would have been evident to the interlocutors during their extensive consultations and meetings in Jammu and Kashmir. In writing this report, they presumably wanted to steer clear of a highly controversial issue. If so, they only strengthen the case for dispensing with experts and bringing in the politicians.

The writer is a senior fellow at the Centre for Policy Research, New Delhi

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