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Not a carat more, Mr Gujral
August 10, 2004
Inder Kumar Gujral, 85, was a minister in the Government of India for nine years, our foreign minister for one year and ultimately our prime minister for 11 months. However, his reputation, such as it is, is not about his political expertise but about his erudite lectures at seminars and conferences.
That is why it was a shock to read the other day that the MA PhD scholar advocated autonomy as the instrument for bringing lasting peace in Jammu & Kashmir and accordingly invoked the Indian Constitution's Article 371 which, he said, had enough flexibility to accommodate the political requirements of each state. He was speaking at a function to launch a new book called Crafting Peace in Kashmir. (Free Press Journal, Mumbai, August 1, 2004)
Gujral erred grossly in saying what he said that day.
First of all, linking lasting peace in Kashmir with autonomy for the state is akin to mixing oil with water. After all, relative peace had in fact reigned in J&K until the Soviet forces withdrew from Afghanistan in 1989, thereby leaving hordes of CIA-trained Pakistani jihadis unemployed.
The ISI-inspired infiltration into J&K began the menace of terrorism, aided by Muslim cliques who saw terrorism as an opportunity to expel some 350,000 Kashmiri Pandits from the soil of the Kashmir valley; extra help came from fanatic youths joining the jihad even as Delhi continued to treat the Kashmiri rulers with lubricated kid gloves.
Make no mistake: peace in J&K will be impossible until Pakistan stops coveting the predominantly Muslim valley. If and when that miracle happens, the event will also see the withering away of the valley's 'secessionists' and 'separatists' who were given respectability by the Vajpayee government when, in fact, they warranted a charge with the offence of sedition under Section 124A of the Indian Penal Code for generally creating public disaffection for the Government of India.
Turn now to Gujral's belief in Article 371 as the key to unlock autonomy -- and peace -- for J&K. It's as flawed as the belief that you need a key to open an already opened lock.
While Article 371 has, in fact, made special provisions for Maharashtra and Gujarat (Article 371), for Nagaland (Article 371 A), for Assam (Article 371 B), for Manipur (Article 371 C), for Andhra Pradesh (Article 371 D and Article 371 E), for Sikkim (Article 371 F), for Mizoram (Article 371 G), for Arunachal Pradesh (Article 371 H), and for Goa (Article 371 I), the special provisions for all these 10 states put together are nowhere near as sweeping and centrifugal in effect as Article 370 which has made J&K virtually a country within a nation. As will be seen in this commentary, J&K already has 22 carat autonomy and to think of adding two more carats to it will make it pure gold -- a separate, independent sovereign state.
Article 370 was enacted in our original constitution of 1950 purely as a temporary provision, a precursor to the formation of a separate J&K constitution that was permitted under Clause 7 of the Instrument of Accession signed on October 26, 1947 by the state's monarch. It was the fond hope of Jawaharlal Nehru that Article 370 would gradually disintegrate and the state would eventually be fully integrated into the Union of India like all other states.
It has turned out to be a shattered hope -- like China and several other hopes that Nehru thrust on us. The 'temporary' Article 370 has continued with the pseudo-secularists and Kashmiri Muslims looking upon the BJP's demand for its abrogation as 'religious bigotry' when what such abrogation will do is to enable J&K to join the mainstream of Indian nationhood without in any way adversely affecting the cultural and ethnicity of the J&K people.
In fact, the persistence with Article 370 has devastatingly over-pampered J&K and kept it aloof from the rest of India.
Take the very latest victim of Article 370. Because of a law of Parliament (enacted by Vajpayee's NDA government) freezing the maximum number of ministers of a state government to 15 percent of its legislative assembly's strength, the country as last month rid of over 100 ministers, thereby reducing the burden on the state treasuries by an estimated Rs 2,500 million by way of salaries and myriad perks of these ministers. But unnoticed by edit writers, that law of Parliament is not applicable to J&K because, under Article 370 (1)(b)(ii), it requires the J&K government's concurrence for such applicability.
A report in The Times of India, Ahmedabad edition, of July 9, quoted J&K's chief minister as saying 'Since J&K was beset with peculiar problems, it was not feasible to downsize the ministry.' Period. And the result: instead of the strength of the J&K ministry being reduced to 13 (15 percent of its assembly's strength of 87 members), the state will continue to have 37 ministers. The state will thus continue to pay for the two furnished bungalows, cars, security etc etc of 24 superfluous ministers even as the state's staff salary bill stands at Rs 33,000 million as against the state's revenue receipts of Rs 1,500 million. But that's no problem 'cause New Delhi is always there with dollops of dole for the state that has a special status consecrated by Article 370.
It is this custom-made Article 370 which mandates that the applicability of every law of the Indian Parliament to J&K requires i. consultation with the J&K government if the subject matter of the law pertains to defence or external affairs or communications, and ii. concurrence of the J&K government if the law pertains to subjects other than defence or external affairs or communications. No other state in India has such privilege. That is why the Indian Penal Code, the Prevention of Corruption Act and rules framed for the Central Bureau of Investigation are among the several Parliamentary enactments which are simply not in vogue in J&K.
As bad as that, if not worse, is the fact that many provisions of the Constitution of India are either i. simply not applicable to J&K state or ii. are applicable to J&K only in a modified form or iii. subsumed by the provisions of the J&K constitution.
Further, as in the case a Parliamentary law, application to J&K of a provision of the Indian Constitution requires consultation/consent of the J&K government depending upon the subject of the constitutional provision. Again, no other state in India has such a privilege of saying 'Yes' or 'No' to a constitutional measure.
Full details of the latitudes in the Indian Constitution permitted to J&K are available in the Constitution (Application to Jammu and Kashmir) Orders issued under Article 370 by the President of India from May 1954 till date. A few of them that make J&K truly unique are given below.
J&K is the only state in India --
Ø where a distinction has been permitted to be made between state citizens (designated as 'permanent residents') and other Indian citizens (who are not 'permanent residents') and where -- contrary to the principles of equality before the law (Article 14), prohibition of discrimination on the ground of place of birth (Article 15) and equality of opportunity in public employment (Article 16), -- laws are permissible to confer special rights and privileges on 'permanent residents' with respect to employment under the state government, acquisition of immovable property in the state, settlement in the state and right to scholarships as well as other state government aid
Ø whose area, boundaries and name cannot be altered without the consent of the state government
Ø whose legislative assembly has a tenure of six years
Ø where no amendment of the Indian constitution shall have effect without consulting/securing concurrence of the state government even in regard to disposition of the state through a treaty with another country
Ø whose government's request or concurrence is needed for Delhi to declare emergency for reasons only of internal disturbance in the state (Article 352)
Ø where emergency declared under Article 356 can become applicable without suspending the machinery of the state constitution
Ø where fiscal emergency cannot be declared (Article 360)
Ø where provisions for the Anglo-Indian community and minorities do not apply.
As though all of the above and more besides was not enough to honour the 'special status' of J&K, the nugget that insults the dignity of India is Section 64 of the J&K constitution. This section stipulates that the oath of affirmation to be made by i. a candidate for election to the state legislature ii. a member of the state legislature iii. a deputy minister and a minister (including the chief minister) of the state government and iv. a judge of the state high court should 'bear true faith and allegiance to the constitution of the State as by law established.' Note that the allegiance here is exclusively to the constitution of J&K state and not to the Constitution of India in addition.
Yes, Mr Gujral, J&K state already has autonomy with 22 carats. It doesn't need two more in the form of Article 371. As M P Jain observes, 'The State (of J&K) has a much greater measure of autonomy and power than enjoyed by other States. Centre's jurisdiction within the State is more limited than what it has with respect to other States.' (Indian Constitutional Law, Wadhwa And Company, Nagpur, fourth edition, reprint, page 435, by M P Jain). And Jain is not one of those externally erudite scholars who address seminars but one who holds a doctorate in law from Yale with a truly international reputation in his chosen field.