The constitutional propriety and trust deficit remains a matter of much concern in JK State, ever since 1947. In 1947, as India was partitioned into two dominions, the paramountcy that British Raj exercised over 600 odd Indian states lapsed. With the lapse of paramountcy, the states were asked to accede to either of the two dominions—India or Pakistan. The criterion of acceding to either of two dominions was set upon geographical proximity and demographic profile, the decision being left to the rulers of the states. Hari Singh—Maharaja of JK State acceded to India, an accession that remains a subject matter of much debate, we may not dwell in. Whatever the manner of accession, the fact remains that it was conditional. JK state provided the Union of India access over matters related to defence, foreign affairs and communication, retaining the rest of subjects within state control.
Given the turmoil that existed in JK state in 1947/48, the final disposition of dispute was subjected to the will of the people, the vehicle of people’s expression being a plebiscite. However, pending the exercise of free will of the people, constitutional practices were established to tide over the intervening period. The intervening period, as it stands remains spread over more or less seven decades, the count continues. What remains a matter of much concern is the trust deficit vis-à-vis the constitutional practices established over a period of time. There is a plethora of documentary evidence, as well as recordings of promises made by leadership of Union of India that the trust established vis-à-vis constitutional practices in vogue shall remain sacrosanct. The constitutional practices broadly ensured an autonomous state with its own constitution and retaining its own flag. Article 370 was taken to be the bridge between Union of India and JK State. Ministers of the Union of India, such as Gopalaswamy Ayyenger in Indian parliament were talking of the desirability of retaining article 370 until the final disposition of ‘K’ dispute. The dispute had already reached the United Nations, and it may be noted that it was the Union of India that referred the dispute to UN, invoking chaper 35 of the international organization.
Much before Gopalaswamy Ayyenger deliberated on article 370 in 1949, the Indian Prime Minister—Pandit Nehru had made promises on plebiscite, and on respecting the constitutional status of the state. There was the touch of an Indian ethos, relating to Rajput valour and chivalry, which laid stress on respecting the word, even at the cost of life, ‘Jaan Jayai Par Vachan Na Jayai’. However, with the onset of 50s extremist forces in India were raising their head and challenging the constitutional status of JK state, with ‘Ek Vidhan’ ‘Ek Pradhan’ ‘Ek Nishan’ (Unitary Constitution, Unitary Head of State, Unitary Flag) being their buzzword. The buzzword remained despite Sheikh Mohammad Abdullah (SMA) concluding Delhi agreement in 1952 with Union of India, conceding a measure of financial control, and promising judicial oversight, further on. By 1953, SMA was cooling his heels in the prison, in a major breach of faith. The trust had been shaken.
The leadership in JK State, following Maharaja Hari Singh’s accession had warmed up to the Indian nation state, despite challenges to the demographic status, making out JK State a Muslim majority state. The demographic status had seen several dents since untoward incidents in Jammu in 1947. JK leadership had overlooked the gory incidents, while trying to shape a distinct constitutional entity, focussing on proceedings in constituent assembly framed in 1951. The proceedings got a jolt in 1953, with SMA being overthrown. By 1960’s the conclusions of whatever was left of the constituent assembly were under severe strain, as ways and means were being devised of divesting the constitutional status of the state. This was brought about by wringing changes in the leadership of the state for signing on the dotted line.
By 1963/64 Indian Premier—Pandit Nehru and his home minister—Gulzari Lal Nanda were relating in Indian parliament that article 370 was an empty shell, implying that it stands divested of its fire power, its effectiveness. It was also implied that the said article is being used as a tunnel for transporting constitutional provisions to the state. These provisions, on constitutional assessment, eroded the distinct constitutional status of the state, robbing the state of the autonomous status. In 1965, by sixth amendment of the state’s constitution, the state vis-à-vis the nomenclature of the head of the state and the chief political executive was brought on par with other Indian state. Sadr-e-Riyasat was put in gubernatorial garb and PM demoted to CM. Articles 356/357 were extended to the state providing a wider constitutional field to the Indian nation state to operate in JK State in times of emergency or constitutional void.
Of late, article 35 A has become another eyesore. The article safeguards the rights of state subjects’ vis-à-vis permanent residence and owning immovable property, besides the right of employment, of scholarship and other state benefits. The buzzword here is that it infringes the rights of Indian citizens’ vis-à-vis right of residence and employment in JK state. The article stands legally challenged in Supreme Court by some extremist frontline organizations. The next hearing in Supreme Court is more or less, three weeks hence, on August, the 6th. The emerging view seems to be a postponement of hearing, as the defence of the state in gubernatorial administration will be devoid of effective representation of the people of state. As such, any adverse ruling would be taken as breach of trust.
Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]
Feedback on: iqbal.javid46@gmail.com