Of more, not less, concessions

Rekha Saxena
Now, when for all practical reasons, a plebiscite in Jammu & Kashmir is a far-fetched idea, the political players and common people of Jammu & Kashmir should discard the idea of holding a plebiscite and look for greater autonomy within the framework of the Constitution of India. Both the stakeholders, the Union of India and the State of Jammu & Kashmir, should negotiate for a workable federal deal on the Kashmir issue. The Union of India will have to endorse that Article 370 is more than a temporary provision.
The 1974 Kashmir Accord had concluded, “The State of Jammu & Kashmir, which is a constituent unit of the Union of India, shall in its relations with the Union, continue to be governed by Article 370 of the Constitution of India.” Jammu & Kashmir’s special autonomous status under Article 370 is well within the Indian constitutional scheme. This kind of assymetrical federal arrangements are negotiated between the Centre and the State to thwart secessionist tendencies.
In the verdict of Khazan Chand versus State of Jammu & Kashmir (1984), the Supreme Court of India also recognised the special provisions of Article 370 and said, “The Constitution of India, however, does not apply in its entirety to the State of Jammu & Kashmir because that State holds a special position in the constitutional set up of our country. Article 370 of the Constitution of India makes special provisions with respect to the State of Jammu and Kashmir.”There is a great need to dispel misapprehensions related to Article 370 and acknowledge the necessity of the provision to accommodate the concerns of Kashmiri people.
However, the special status of the State originally granted under Article 370 of the Constitution, has become controversial over the years due to various reasons. The State needs to defend Article 370 against all future assaults.
The National Conference Government had failed to persuade the Centre to consider the State Autonomy Committee (SAC) report recommendations in 2000, because of the extreme demands. The SAC report recommended the restoration of Article 370 to the pre-1953 status, limiting the jurisdiction of the Indian Union to defence, foreign affairs and communications, deletion of the word ‘temporary’ from the title of Part XXI and the heading of Article 370 of the Constitution of India and replacing it with the word ‘special’. Similar extreme demand of restoring Article 370 to its original form was also repudiated under the 1974 Kashmir Accord.
To bring long-lasting peace in Kashmir valley, all the major political players will have to move above their narrow political interests. It has been a tradition that these parties, when in power and in opposition, act in different ways.
The existence of the Indian nation is progressively accredited by scholars to the consolidation of democracy, and now to the growing practice of federalism. The federal idea is also spreading today in the Afro-Asian part of theworld, where federalism is being perceived as an institutional method to stave off separatism by proposing the choice of shared-rule as well as self-rule. More than 25 countries in the world today are federal and many more are moving towards one or the other varient of federalism.
Even in the Indian context, asymmetrical provisions like Articles 370 and 371 have helped in holding the nation together. Even the change of regimes, both in New Delhi and J&K, could not do away with these provisions. The federal idea is not to impose administrative and cultural uniformity but to bring unity while simultaneously preserving diversity. A foundation for a truly federal structure can only be laid if all the stakeholders get rid of the trust deficit.
In his recent CNN-News 18 interview, Prime Minister Modi said vikas (development) and vishwas (trust) would be his mantra for Kashmir. Therefore, to turn the rhetoric into reality, the Government should walk the extra mile and accept the utility of the constitutional concessions for Kashmir to win back the confidence of the people in the valley.
A focussed dialogue between all the stakeholders will be a vital step in restoring trust between New Delhi and Srinagar. Free, fair and regular elections, check on the misuse of Article 356 and the Governor’s powers, and, defence of Article 370 against future assaults, can be a possible panacea to the problems plaguing the State of Jammu & Kashmir. Tangible confidence-building measures need to be taken by the Union Government to defeat the separatist and secessionist activities in Kashmir valley. This quote by Sheikh Abdullah is as much relevant today as it was during his times: “Only that accession will endure which is acceptable to the hearts of people… People’s hearts can be won only by love, justice, truthfulness and sincerity and not with subsidised rice, Army and by offering largesse.”
Experts and politicians will have to conceive a federal solution to the problem of Jammu & Kashmir. This should have a tripartite division. The first part should devise a mechanism to provide autonomy to the state from New Delhi. The second part should accommodate the divergent aspirations of the people of all three regions of the State: Jammu, Kashmir valley, and Ladakh. The third part should strengthen the framework of local governance.
Article 370 and a new federal deal can be the basis for moving ahead from the current impasse. A section of Indian and foreign scholars has taken a completely untenable position that the Article gives the President of India the power to cease the operation of its provisions or amend it only with the consent of the Constituent Assembly of the State. Ordinary processes of constitutional amendment do not apply to Kashmir under Article 370.
Hence, only the 1954 Constitution (Application to Jammu & Kashmir) Order, extending numerous provisions of the Constitution of India to the State, is valid, as it was made with the approval of the J&K Constituent Assembly then in session. All the subsequent presidential orders made with the consent of the State Legislature and the Government are illegal. This is a prepostrous argument.
After an earlier confused and mistaken reasoning on this issue in Premnath Kaul versus State of Jammu & Kashmir (1959), the Supreme Court of India had in two subsequent cases – Sampat Prakash versus State of Jammu & Kashmir (1969), Mohd Maqbool Damnoo versus State of J&K(1972) – corrected its earlier position and sustained all the presidential orders later made.
If the all-party delegation remained infructous, the Modi Government could proceed to look back and look ahead unilaterally. Earlier panels in the previous regime had made a few sensible recommendations. Prime Minister Modi can make a start by acting on the acceptable suggestions of the all-party team and the Kashmiri leadership.
(The writer is a professor at the Department of Political Science, University of Delhi, and also vice chairperson, Centre for Multilevel Federalism, New Delhi)

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