The accession of Jammu and Kashmir by its de facto Ruler that was conditionally accepted by the Government of India led to J&K's transition from independence to autonomy and not to merger with India.
The Dominion Legislature in terms of the Instrument of Accession was to have power to legislate on three subjects viz. defence, external affairs and communications. The power to make laws on all other subjects was retained by the State.
The Instrument expressly provided that i) its terms shall not be varied except with agreement of the Ruler ii) it shall not be construed as a commitment to accept any future Constitution of India iii) it shall not affect the sovereignty of the State save as provided under it.
The State thus even after accession retained sovereignty in all matters except defence, external affairs and communications. The Ruler therefore in March 1948 declared his resolve to convene a National Assembly to frame the Constitution. When other States in November 1949 adopted the Constitution, Jammu and Kashmir did not follow but decided to convoke a constituent assembly to frame its own Constitution. Convening constituent assembly to frame a separate Constitution for Jammu and Kashmir was also envisioned by Article 370 that laid down constitutional mechanism to govern relations between Dominion of Indian and autonomous State of Jammu and Kashmir.
The Constitution of India on its coming into force did not, with the exception of Article 370 and Article 1 (made applicable by Article 370), apply to Jammu and Kashmir. The Constitution (Application to Jammu and Kashmir) Order, 1950 made by the President in exercise of powers under Article 370, extended a few Constitutional provisions (mentioned in its Second Schedule) with modifications to Jammu and Kashmir and identified 39 subjects called "entries" in Constitutional parlance, with regard to which Parliament was to have power to make laws. The Provisions so extended and the entries identified fell within terms of the Instrument and did not injure sovereignty or dilute autonomy enjoyed by the State. The story thereafter has been all together different.
The Constitution (Application to Jammu and Kashmir) Order, 1954, promulgated soon after arrest of Prime Minister of J&K, making real design behind the arrest amply clear, dealt a blow to autonomy. It superseded 1950 Order and extended almost all the Constitutional provisions to the State, making corresponding encroachment over its autonomy that has ever since gone down the precipice. It has been followed by a series of Presidential Orders amending the 1954 Order and further depleting State's special status. Importantly, 1954 Order and all subsequent orders have been made with the "Concurrence" of the State Government, implying that the Provisions applied and "entries" extended are beyond Defence, External Affairs and Communications, subjects on which accession was made. It may be recalled that in terms of Article 370 a Constitutional provision not within purview of three Subjects cannot be extended to the State except with the Concurrence (not mere Consultation) of the State Government. Even in case of other provisions, the State Government is to be consulted before application to the State. The State Government therefore holds the key in such matters.
With above brief background, let us come to current challenges to the State autonomy. The State Government, as pointed out has a pivotal role in safeguarding autonomy. It can both protect the State's special status or facilitate its erosion. It has all the power to withhold "Concurrence" and block extension of a Constitutional provision or law not within ambit of three Subjects to the State. This is what was exactly done in 1976 when 42nd Constitutional Amendment was not allowed to be extended to State. The present State Government instead is devising new ways and means to further erode autonomy. After its failure to rush through anti autonomy measures like Minor Mineral Rules and State Industrial Policy, it now indirectly encourages challenge on judicial side to different facets of autonomy and thereafter avoids to effectively contest such challenge. It is a novel way to implement the anti Kashmir agenda, demolish the Special status, work for the complete merger and yet escape public wrath. The modus opprendii is to give those out to destroy autonomy a silent walkover. The experiment was successfully made with regard to 6th amendment, State Flag and NEET. The recent case is that of SARFAESI Act. What is not achieved by employing this mechanism is sought to be accomplished by selling poison in the name of elixir.
NEET must continue to be a matter of grave concern for the votaries of whatever is left of the emaciated autonomy. The 2016 law merely postpones the implementation of NEET to the complete exclusion of the State Boards and day may not be faraway when admission to all professional colleges in the State would be made through NEET, without any role for the State Government. The State Government by pretending helplessness has very conveniently shut its eyes to the clear constitutional position that the Parliament due to non application of 42nd Amendment to the State, lacks power to legislate on the subject and any such law including one providing for NEET cannot be extended to the State. The State Government, as part of new strategy avoided to effectively project correct position before the Supreme Court.
The controversy as regards application of SARFAESI to Jammu and Kashmir is less about nature of law and more about legislative competence of the Parliament to enact such a law for Jammu and Kashmir. The High Court held the law to fall within ambit of an "entry" not applicable to Jammu and Kashmir and therefore not enforceable in the State. While holding so, the High Court deliberated on extent of sovereignty enjoyed by the State. The judgment was overturned by Supreme Court holding that the law fell within purview of an "entry" in the Union List duly extended and therefore was applicable to the State. Supreme Court applied "pith and substance" rule to hold the Act fall within the "entry". The Court did no agree with observations as regards sovereignty, made in the judgment. The State Government's stand before the High Court was that the law related to a subject within exclusive domain of the State legislature. The stand was that in the context of Jammu and Kashmir, the central law in substance would infringe property rights of State Subjects guaranteed under a law having protection of Article 35A, impact the administration of justice – subjects within legislative competence of the State, and dilute autonomy. The State made a complete departure from its stand, before the Supreme Court and admitted that "SARFAESI was enacted by the Parliament by virtue of Entry 45 List 1" and if Proviso to Rule 8(5) of SARFAESI Rules is read with Section 13(4) of the Act," the State of Jammu and Kashmir would have no objection to the SARFAESI Act applying to the State of Jammu & Kashmir". No effort was made to assist the Court in taking a holistic view of the matter against the backdrop of the Constitutional scheme governing the Centre – State relations, in case of Jammu and Kashmir. The State Government ignoring the importance of the matter even avoided to engage a Senior Counsel to put forth its stand, though no time was lost to make such arrangement in a case relating to registration of FIR regarding alleged extra judicial killing during current unrest.
Jammu and Kashmir enjoys status not available to any other State. While Jammu and Kashmir has all the powers except what it conceded to the Centre, in case of other States the Centre has all the powers except the powers given by it to the States. In case of Jammu and Kashmir all residuary powers belong to the State. Reverse is the position in case of other States. To the people of Jammu and Kashmir unlike other States, three Constitutions are relevant- the State Constitution, part of the Constitution of India applicable to the State and the part not applicable to the State. A Constitutional provision may govern people or institutions in the entire Country yet not be applicable to the State. Again a Constitutional provision may be applicable to Jammu and Kashmir with different content as compared to other States. To illustrate right to property is a fundamental right in Jammu and Kashmir but not so elsewhere in India. Likewise Parliament lacks power to legislate on an entry in the Union List with regard to Jammu and Kashmir if the entry is not applicable or amendment by which entry has been transferred from State List to the Union List is not extended to the State due to non-accord of concurrence. That, the State List is omitted in case of Jammu and Kashmir, would suggest strict reading of a Union List entry and not its liberal reading as the Framer's intention was to curtail the power of Parliament and concede maximum territory to the State. The Constitution of Jammu and Kashmir therefore is not subordinate to Constitution of India. Had it been so, certain parts of Constitution would not be inapplicable to the State.
The two Constitutions have undergone similar making process, have been framed in exercise of constituent power, are fundamental law within their respective areas and neither of them is superior to or commands more respect than other. The two Constitutions are like two circles with a segment overlapping and rest independent and sovereign within their own spheres. The Constitution of Jammu and Kashmir commands equal respect and the State continues to be sovereign in the areas not surrendered to the Union. In case of J&K ,the Government by refusing concurrence to extension of a Constitutional provision, amendments to Constitution or a Constitutional provision with the same content as applicable to rest of Country, to the State it indirectly exercises power to amend the Constitution of India to said extent with regard to Jammu and Kashmir, which is an attribute of Sovereignty.
The State Government has no reason to be in a self congratulatory mode over observation in the judgment regarding permanent status of Article 370 or sale of secured assets to Permanent Residents. The permanent status of Article 370 in authoritatively settled by a larger Bench in Sampat Prakash's Case and Proviso to Rule 8(5) SARFAESI Rules makes Jammu and Kashmir Transfer of Property Act applicable to sale of mortgaged property under SARFAECI restricting the transfer to a Permanent Resident. The State Government therefore can not cover up its grave lapse by labelling a setback as a success. How can reversal of a judgment holding a subject to be beyond legislative competence of the parliament and within exclusive domain of the State Legislature, be termed as victory?
Decision to grant Domicile Certificates to West Pakistan Refugees is yet another attack by the State Government on State's special status. More mischievous and inherently deceitful, is the effort to present it as an innocuous step taken out of compassion. DC is wrongly projected to be a mere identity card meant to enable the WPRs to apply for Central Government jobs. WPRs admittedly vote in Parliamentary elections and are expected to have Voter Identity Cards, universally accepted as a proof of identity. Where is then the need to issue identity cards? The Certificate is to confer a status and as stated by a Coalition leader, is the first step towards ultimate goal. It is like Learner Licence to be followed by a Regular Licence. Soon after the grant of domicile status, would come the demand to have many more rights attached to the Status. The ultimate aim is to change the demography of the State and to outnumber and thereby ensure disempowerment of a section of the population. DC is only a camouflage to carry forward the hidden agenda. A host of problems not comprehended by the Troika close to ultra right forces, would be faced by the State Subjects in days to come. It is a step more lethal than the incidents that lead to recent uprising and bound to affect generations to come. All this is done in the name of compassion for WPRs. While they undoubtedly deserve compassion, it cannot be at the cost of State Subjects. One may ask what about refugees from Bangladesh. Why should the Coalition Party demand their expulsion, make it a poll plank in Assam, hunt them in Maharashtra, and elsewhere and set up a Commission to identify them for deportation. If compassion is to decide such matters why should not Refugees from Bangladesh be allowed to settle down in India? They after all preferred India over East Pakistan now Bangladesh. This apart, nobody ever objected to grant of due status to refugees from other part of Kashmir, because they unlike WPRs are State Subjects. It is not therefore question of religion or community but of State Subject law.
PIL is lately being used as a tool to see State autonomy demolished. PIL filed before Supreme Court questions constitutionality of Article 35A that protects laws providing for exclusive rights to the State subjects in the matters of acquisition of property, employment etc. In absence of Article 35A such laws may face challenge on the ground of discrimination or impermissible classification. PIL questions President's power under Article 370 to add to a Constitutional provision, in its application to Jammu and Kashmir. The aim is to get the State Subject law and like laws struck down and make it possible for the non State Subjects to acquire immovable property and compete for government employment in the State. PIL filed before Delhi High Court assails President's power to amend a Constitutional provision in its application to the State, in particular Article 368 by adding a Proviso providing that amendment to a Constitutional provision already extended to Jammu and Kashmir shall not so apply unless procedure under Article 370 is followed. The attempt if successful shall make all the amendments made to the Constitutional provisions extended to Jammu and Kashmir ipso facto applicable to the State. Resultantly, even traces of autonomy shall get vanished. The challenge is likely to fail, if effectively contested as seven judge Supreme Court Judgment in Puran Lal Lakhan Pal case is complete answer to the plea raised.
Why did Jammu and Kashmir substantially lose its autonomy so fast, that it today only survives in name and there is no let up in campaign to even obliterate its last remnants? The answer is to help us unfold the possible response to frequent attacks.
The people of Jammu and Kashmir have all along set eyes on bigger goal of self determination and while waiting for realisation of the right, remained indifferent to assault on autonomy. They nursed a belief that the pledge made would be fulfilled and frequent assaults on autonomy would be therefore inconsequential and of no harm. The Government of India on its part pursued dual strategy using a double edged sword. It created all roadblocks in the way of a fair and impartial plebiscite and at the same time, by and by chipped away State's autonomy. The worst part of this nefarious plan is that it was executed with active aid and assistance of the local collaborators, though otherwise beneficiaries of autonomy. The civil society groups failed to fix priorities, place autonomy ahead of everything else, make people aware of need to safeguard autonomy, and warn the collaborators of their accountability to future generations. This is the reason that even lethal attacks like 1954 Presidential Order, 6th amendment to replace elected Head of the State and Head of the Government by Governor and Chief Minister, non implementation of J&K Resettlement Act of 1982 went without a murmur. The 6th amendment earned its chief architect Padma award and his lieutenant who helped execute the plan and carried forward his mission is standing in the queue. Those expected to raise a voice were either focussed on plebiscite ignoring what was going around or on short term gains like subsidized ration etc. and a few busy collecting benefits for themselves and their families. When special status was being demolished brick by brick, they were singing paeans for collaborators in Jashen-i-Kashmir, eulogising integration efforts, promoting personality cult or advising Governors. They knew that their proximity to powers that be – no matter which family and what ideology, shall earn them pelf and privileges under every regime – autonomy or no autonomy and so they did. The present day collaborators have proved their elders right by their swing from "freedom" to "merger" to reach and cling to power.
The experience of last seven decades has many lessons to teach. The first and foremost lesson is that even when people pursue the bigger goal of plebiscite, they cannot afford to ignore the existing institutions, as the damage done by the collaborators of forces inimical to autonomy, allowed to occupy decision making positions, may be irreversible, leaving future generations helpless. A shepherd taking his flock to a pasture can ill afford to have his eyes set on the pasture and allow the flock to be devoured by the wolves en-route. It was lot easier to prevent or stop erosion than it may be now to undo the damage. The recent anti people acts and utterances of politicians catapulted to power sufficiently prove the point.
The position remains same as has been during last seven decades with the only difference that the civil society groups are now alert, better understand the machinations of forces inimical to interests of people and their local collaborators, are quick to formulate responses and warn people of hidden designs and lurking dangers. With the political voice fragmented, and the politicians with popular support reluctant to influence decision making and jealously guarding their territories not to allow any outsider to even support their cause, heavy responsibility is cast on civil society groups to defeat conspiracies against autonomy, special status and public interest. The responsibility can be successfully discharged by initiating a public debate on issues of grave concern, help frame public opinion against anti people designs, meet individually or in groups the social planners and people occupying decision making position, to make them understand long term effects of the controversial decisions and persuade them to oppose the decision, at least stay away from such decisions or register their protest. The more onerous duty in present scenario, is to step forward and effectively contest petitions throwing challenge to Constitutional provision and laws safeguarding autonomy and thereby defeat attempts to dismantle it. The vigil is to be continuous and sustained. Kneejerk reactions followed by lull creating a false impression of "all is well" would be of no help, rather send negative signals. There is a parable of sheep and sheep pen – a little closer to the narrative. Sheep are confined in a sheep pen. When butcher enters the sheep pen in the morning to pick up one sheep from pen for the day, all the sheep busy munching hay raise their head, are motionless for a while eyes fixed on the butcher – depicting helplessness, to watch the butcher take away the sheep. Once butcher leaves the pen, Sheep baa and meh for a while, but return to munch- the sheep taken away off their mind. Next morning butcher again visits the pen to take away one more sheep and this goes on and on. It is least difficult to identify present actors with characters in the parable.
Halqa kiyay baithay raho is shama ko yaro
Kuch roshni baqi tu hai har chand ki kam hai