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Abdullah was indeed asking for the moon

Farooq Abdullah has boasted that his autonomy demand was packaged as a State Legislature resolution and not as a Bill because he wanted "consensus," not "confrontation." And he told an interviewer that he was not asking for the moon. Well, well, the man is either an ignoramus or even impious. A close study of the Jammu & Kashmir Constitution, 1957, and the Constitution of India, 1950, will prove that.

Look first at the essence of his demand. He wants that the Indian parliamentary legislation in respect of J&K be confined to the subjects listed in the Instrument of Accession. Hence he would seem to have no quarrel with what successive governments in Delhi have done for the last 50 years under the aegis of Article 370, Clause (1) (b) (i) of the Indian Constitution reproduced below. Indeed, he should be grateful that all such laws made applicable to J&K have been in consultation with the J&K State Government -- a courtesy (concession?) not at all stipulated in the Instrument of Accession and denied to the other 24 States and seven Union Territories of India.

Article 370 (1)(b)

The power of Parliament to make laws for the said State (of J&K) shall be limited to --

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii)such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

The Constitution of India, P M Bakshi, Universal Law Publishing Co. Pvt Ltd., 2000, pg.311)

Abdullah's problem stems from (b) (ii) above. But here, too, be it noted, neither the Parliament nor the President is a free agent because the said clause requires the President's choice of other matters to be with the concurrence of the Government of the State.

The conclusion then is unchallengeable: Whatever laws of Parliament are in vogue in J&K today have come about either after consultation with or concurrence from the J&K government of the day. If at all there has been an "erosion of autonomy" of J&K, the State has been a party to it, make no mistake. There was nothing illegal about it all as alleged in Abdullah's Autonomy Report.

He wanted to go back exclusively to the Instrument of Accession document which had an appended Schedule enumerating "The matters with respect to which the Dominion Legislature may make laws for this State."

As printed in Chief Justice A S Anand's book, The Constitution of Jammu and Kashmir, (Universal Traders, 1994), the above Schedule listed four heads: A. Defence (four entries); B. External Affairs (ten entries); C. Communications (nine entries) and D. the little-known Ancillary which comprises "Election to the Dominion Legislature" (meaning India in J&K's context), "Offences against laws with respect to any of the aforesaid matters", "Inquiries and statistics for the purpose of any of the aforesaid matters" and "Jurisdiction and powers of all courts with the aforesaid matters but, except with the consent of the Ruler of the Acceding State, not so as to confer jurisdiction or powers upon any courts other than ordinarily exercising jurisdiction in or in relation to that State."

The above intended confinement of Indian parliamentary legislation meant that what Abdullah's latest autonomy proposal demanded was the total abolition of Article 370 clause (1) (b).(ii) along with the relevant explanatory provision in that Article. The man was, in reality, therefore demanding a major Constitutional amendment. More importantly, the demanded amendment related to that provision of the Constitution of India as is presently applicable to J&K State. The gravity of this last statement will dawn anon in this commentary.

That amendment was not all. Abdullah was also demanding a return to the pre-1953 status for J&K. This meant that the Constitution (Application to Jammu and Kashmir) Order issued by the President of India on May 14, 1954, as well as its 40 subsequent amendments were to be repealed, thereby nullifying all the acts of Parliament applied to J&K from that date in 1954.

The calamitous blow which such repeal would have dealt to the rights of J&K citizens will be seen a little later here. Let us first examine the implied demand for a major Constitutional change to Article 370 which, remember, is specific to J&K.

This is the crucial stage at which enters the Constitution of J&K, 1957. Its Section 147 deals with the amendment of that Constitution. After dealing with the procedure of such amendments, that Section's third paragraph states: "No bill or amendment seeking to make any change in the provisions of the Constitution of India as applicable in relation to the state shall be introduced or moved in either Houses of the legislature." (Emphasis added).(C.f. A.S.Anand ibid pg. 407)

Please read the above eternal barrier once again. You will conclude that no Bill can even be introduced in the J&K Assembly to abolish Article 370 (1) (b) (ii) which, as seen earlier, is implicit in Abdullah's autonomy call to Delhi to revert exclusively to the subjects enumerated in the Instrument of Accession. This stunning conclusion hasn't been worked out by our media anchors and their guest "experts" who are now speculating that with his Assembly's resolution on autonomy having been rejected by the Union Cabinet, Abdullah may well get a Bill on the subject passed by the Assembly he has in his pocket.

Instead, the elementary question should have been and is: "Can a State Assembly pass a recommendatory resolution on a subject on which that State is forever constitutionally debarred from even introducing a legislation on its own floor?" You need only common sense to answer a loud "No" to that. The corollary is equally clear. When Abdullah asked for his own brand of autonomy, he was in fact asking for the moon. The ardent golfer that he is, he probably believed that the "whole in one" phenomenon is always possible, albeit with divine help. He either forgot the fact himself or wanted the whole nation to forget that Constitutionally created roughs on the political course just do not permit that kind of divine intervention. The great pity is that he should have succeeded in creating a nation-wide stir with his devious impiety or forgetfulness, whatever it is.

Truly forgotten in that scorching debate of the last fortnight was one dangerous consequence of Abdullah's demand for a rollback to the pre-1953 stage. Forgotten was the fact that the Constitution (Application to Jammu and Kashmir) Order of May 14, 1954, had granted Indian citizenship to J&K subjects and also given them Fundamental Rights embedded in the Indian Constitution.

That Presidential Order (issued through the provision of Article 370) gave, for the first time in their history, the people of J&K the right to claim and contend against the Executive. Although that Order restricts the operation of the Fundamental Rights in J&K, it nevertheless provides adequate precautions for an effective and speedy enforcement of these rights by authorising the Supreme Court and the High Court to issue writs, orders or directions for the enforcement of these rights. (C.f. Justice Anand, ibid. pp. 238-239)

Was then the recent roar of Abdullah a protest against the "erosion of autonomy" or against the "erosion of autocracy" in J&K?

Tailpiece

One of Abdullah's autonomy demands was reversion to "Sadar-i-Riyasat"as the designation for Head of State of J&K. The fact of the matter is that that princely title was substituted with the word "Governor" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act 1965! Abdullah must really be getting very, very forgetful.

Arvind Lavakare