In an exclusive interview to CNN-IBN, Chairman of the All Parties Hurriyat Conference (APHC), Mirwaiz Umer Farooq has hinted that the Hurriyat is willing to participate in the 2008 polls provided there is some forward movement. An idea that has been floated is restoring the pre-1953 status to Jammu and Kashmir.

So what is the problem with restoring J&K back to its constitutional position of 1953 ?

Offstumped draws heavily from this 2002 piece by Arvind Lavakare to offer an alternative viewpoint. Arvind in his piece outlines several areas of concern that Offstumped has commented upon.

  • The Supreme Court’s original jurisdiction was restricted only to Article 131 dealing with disputes between the Union and the states. In all other matters, the apex court was given only appellate jurisdiction.

Offstumped Comment – Without getting into the legal subtleties on the face of it this doesn’t seem like a deal breaker. In the U.S. too States have Supreme Courts and the jurisdiction of the Federal Supreme Court is appellate in nature.

  • The Comptroller and Auditor General was denied jurisdiction of J&K

Offstumped Comment – This definitely should be no deal breaker. In fact every state should be entitled to the freedom of choosing its own audit mechanisms and not have to brook interference from a central authority with no direct accountability to the people of the state.

  • Unlike in other states, the representatives of J&K to both Houses of the Indian Parliament were not to be elected by the state’s people but to be appointed by the President of India in consultation with the J&K government. These appointed members were however to be treated as elected members for the purpose of voting for the post of the nation’s President under Articles 54 and 55.

Offstumped Comment – This definitely should be a deal breaker not just for the rest of India but for the people of J&K themselves. It is hard to believe that anyone in J&K would want unelected representatives to represent them in Delhi.

  • Unlike in the case of other states, Parliament’s power of legislation with regard to J&K was limited to the items on the Union List, subject, of course, to the constraint of Article 370. The State List and the Concurrent List of legislative items were not applied to J&K.

Offstumped Comment – This is an idea who’s time has come for not just J&K but the rest of India. True federalism should mean that States ultimately have sole authority to legislate on matters within their direct purview. As far as items on the concurrent list go in fact the relationship between the States and the Union ought to be such that only when the States willingly relinquish autonomy to the Union can the the Parliament legislate on such items.

  • The taxes collected by the Union or by the states on behalf of the Union remained exclusively under J&K’s control. Provisions dealing with the distribution of taxes collected by the Union outside J&K did not apply to that state. Similarly, Article 280 relating to the finance commission was not applicable to J&K.
  • The income tax department of J&K was to be free of all central controls. The state was allowed its own customs department that had been established during the British period.

Offstumped Comment – Without getting into the nuances of taxation on the face of it, this does appear to be an idea who’s time may have come. Even Gujarat Chief Minister Narendra Modi of the BJP has been advocating for autonomy of this kind.

  • The Election Commission of India had no jurisdiction other than that pertaining to elections for the posts of President and vice-president of India. Elections to the J&K state assembly were to be governed by the state’s laws.

Offstumped Comment – If this modified to accommodate elections to both houses of Parliament this should not be a bad idea at all. Even the United States conduct of elections is left to local bodies and state agencies. In fact the kind of interference in the executive functions of the state under the ruse of enforcing the model code of conduct is a good reason for States to assert autonomy in conduct of state and local elections. Ultimately it is up to the people of the states to demand the same degree of autonomy and independence from the state election commissions.

  • The provision regarding reservation of seats in the state assemblies was not applied to J&K. Similarly, the provision for appointment of a commission to investigate the conditions of backwards classes or of a special officer for scheduled castes did not apply to the state.

Offstumped Comment – Absolutely not a deal breaker. States should have the autonomy to choose the kind of reservations they want. Karunanidhi has been advocating for this in Tamil Nadu. Ultimately it is the responsibility of the people to ensure via elections that retrograde measures of social justice dont take root. Imposing restrictions via the federal courts is not the solution to this problem.

  • The provision regarding official language was restricted to dealing with Union and to the proceedings of the Supreme Court. The directive for the development of the Hindi language did not apply to J&K.

Offstumped Comment – In this day and age this should hardly be contentious. This is a non-issue.

  • Amendment of the Indian Constitution relating to J&K needed not only the detailed requirements of the Article concerned but also an Order of the President of India under Article 370.

Offstumped Comment – This may require further consideration, it is not exactly clear if there are any deal breakers here.

More conspicuous is that all of Parts I to IV, Parts VI to X, Part XIII, Part XIV and Part XVIII were not made applicable to the J&K of pre-53. The critical constituents of these omissions were:

  • Citizens of J&K were not deemed to be citizens of India!! (That diabolical wrong was corrected by the above-referred Order of May 14, 1954, which conferred that citizenship with retrospective effect from 1950).

Offstumped Comment – This is definitely a deal breaker. The Hurriyat has to give in on this one. Without accepting this there cannot be a meaningful debate on the rest of the areas.

  • J&K citizens were denied the fundamental rights elaborated in Articles 12 to 35 in Part III of the Indian Constitution. (In order to distribute land to poor peasants, Sheikh Abdullah’s land reforms of 1949-50 expropriated estates above 182 kanals (about 23 acres) without paying any monetary compensation to the owners. Why, even the state’s Maharaja was denied his sovereign right in the matter — his assent was not obtained before the Sheikh announced the sweeping reforms).

Offstumped Comment – This should be a deal breaker for the people of J&K themselves. This too should be a given, there cannot be any compromise on fundamental rights.

  • Directive Principles of State Policy (including the establishment of a uniform civil code) contained in Part IV of the Indian Constitution) were not applicable to J&K.

Offstumped Comment – This should not be contentious. In fact the directive principles are an idea past their sell by date.

  • Kashmir Service Regulations were to prevail and employment in J&K was permitted to be restricted to “state subjects” defined under a sovereign notification of April 20, 1927.

Offstumped Comment – In this day and age of economic mobility it would be foolish on the part of J&K to setup protectionist walls and restrict the flow of capital, skills and enterprise. Common sense must prevail on J&K to drop this.

  • Proclamation of general emergency and financial emergency were not applicable to J&K. Its government was exempted from being suspended by the Centre under Article 356.

Offstumped Comment – Emergency powers and Article 356 need to be revisited by India as a whole given the past experience with both. This should be tabled for review with all states.

Apart from all of the above, Arun Shourie has pointed out an alarming anti-national facet of the demand of the Abdullahs. In an interview published in The Times of India, Mumbai, on July 8, 2000, he pointed out Financial integration of the state (J&K) with the rest of India was brought about in 1954; once you go back to 1953, the jurisdiction of the Reserve Bank goes, they get the right to have their own currency.’

Offstumped Comment – This is a deal breaker as well. Currency integration should be a given and not open to review. In this day and age it would be foolish of J&K to consider not integrating itself economically with the rest of India.

On the whole it must be said that except for a few areas where reasonable compromise can be considered  and expected by both sides, the proposal to restore Pre-1953 status to Jammu and Kashmir merits serious attention and public debate. Prime Minister Manmohan Singh must set the ball rolling on this by reaching out to the BJP to take this debate forward.

Offstumped Bottomline: By offering a framework for true federalism this proposal not only has the potential to find common ground in J&K but also allow Indian States to lay claim to autonomy that is rightfully theirs. With nationalists like Narendra Modi advocating autonomy for states in sharing of tax revenues, this may be an idea who’s time has come.






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