Autonomy is the heartbeat of the people of J&K: Rather

Srinagar, June 17 (Scoop News) –Maintaining that peace can return to the State only after the pledges made to the people of J&K are honoured and fulfilled, Minister for Finance and Ladakh Affairs,  Abdul Rahim Rather on Sunday said that Jammu and Kashmir is the only one to have negotiated the terms of its membership of the Union. Right till the Delhi agreement of 1952, it did not accept any provisions of the Indian Constitution other than those agreed to in the Instrument of Accession and retained its autonomy.

Speaking at a seminar on “Erosion of Autonomy and its restoration to the State of Jammu and Kashmir” organized by the Department of Political Science, University of Kashmir in collaboration with Centre for Dialogue and Reconciliation, New Delhi, here, the Minister said that Autonomy has remained, since the days of accession, the heartbeat of the people of the State. He said today we find that the State has last all semblance to autonomy. Its erosion is the primary cause for Kashmir discontent.  Rather said that keeping this in view, the former Prime Minister of India,  Narashima Rao announced in the Parliament in 1995 that the Union Government would be prepared to considered Autonomy “Short of Independence and Sky is the limit”. “Welcoming the Statement on the behalf of J&K National Conference, Dr. Farooq Abdullah asked the Union Government to issue an order under Article 370 to restore the State’s Autonomy in terms of the Delhi agreement of 1952. When this did not happen, the National Conference boycotted the Parliamentary Election in 1996”,  Rather added.

The Minister said that it is well known fact that the State of Jammu and Kashmir acceded to India in 1947 in respect of three subjects only viz, Defence, External Affairs and Communications. So the power of Parliament to make laws for the State was restricted to these subjects only or matters ancillary thereto. It is mentioned in the Instrument of Accession that terms of this instrument ‘shall not be’ varied except by an instrument supplementary to the instrument of accession. He said it would be pertinent to mention here that while other Indian States signed the instrument of accession and then the instrument of merger, J&K did not signs the instrument of merger. He said the Instrument of accession also provides “nothing in this instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitutor”. Right from the beginning in 1948 there was no doubt in any quarter that, regardless of the arrangements in respect of other former Indian States, the State of Jammu and Kashmir would have its own Constitution as a member of the Indian Union,  Rather added.

He said uniquely, the State is the only one to have negotiated the term of its membership of the Union. The negotiations were spread over the five months. Negotiations on the provisions in the proposed constitution of India that would embody the terms of the State’s membership of the union began when a conference of the leaders of the National Conference and of the leaders at the Centre was held in Delhi on May 15-16, 1949. Pt. Jawahar Lal Nehru recorded the issues discussed in a letter to sheikh Sahib on 18th of May, 1949. “The State will have its own constitution and it will be for the constituent Assembly of the State, when convened, to determine in respect of what other subjects the State may accede”. He said Sher-i-Kashmir Sheikh Mohammad Abdullah so meticulous that during negotiations even minutest details were discussed. After threadbare discussions, Art 370 came into being. A careful study of the text of this Article reveals six special provisions for Jammu and Kashmir.

Elaborating on these provisions  Rather said that it exempted the state totally from the provisions of the constitution of India providing for the governance of the States. It was allowed to have its own Constitution within the Indian Union.

Secondly, the Parliament’s Legislative Power was restricted to three subjects Defence, External Affairs and Communications. The President could extend to it other provisions of the Constitution to provide a constitutional framework if they related to the matters specified in the instrument of accession. For all this, only “Consultation” with the State Government was required since the State has already accepted them in 1947 by the instrument of Accession.

Third, if other Constitutional Provisions and others Union power are to be extended to the State of Jammu and Kashmir the prior “Concurrence” of the State Government was required.

Fourth feature is that even the concurrence alone did not suffice. It had to be ratified by the State’s constituent Assembly.

The Fifth feature is that the State Government’s authority to give the “Concurrence” lasts only till the State Constituent Assembly is convened. It is an interim power. Once the constituent Assembly met, the State Government cannot give its own concurrence. Once the constituent Assembly met, the State Government cannot give its own concurrence. Still less, after the assembly met and dispersed.

The Sixth and the last feature is the Art 370 (3) empowers the President make an order abrogating or amending it. But for this also “ the recommendation” of the State’s Constituent Assembly “ shall be necessary before the President issues such a notification”.

 Rather said that Art. 370 cannot be abrogated or amended by recourse to the amending provisions of the constitution which apply to all the others states because Art 368 have a proviso, which says that no constitutional amendment shall have effect in relations to the State of Jammu and Kashmir unless applied by order of the President under Art 370 and that requires first the concurrence of the State Government and subsequent ratification by its constituency Assembly. He said the Art. 370 was authoritatively explained by the mover in the constituent assembly,  N. Goplaswamy Ayyanger contemporaneously and resident of India, Dr. Rajinder Parsad. “ Ayyanger said in the Constituent Assembly on October 17, 1949 that “we have also agreed that the will of the people through the instrument of the Constituent Assembly will determine the constitution of the State as well as the sphere of union Jurisdiction over the State. You will remember that several of these clauses provide for the concurrence of the Government of Jammu and Kashmir State. Now, these relate particularly to matters which are not mentioned in the instrument of Accession, and it is one our commitments to the people and Government of Kashmir that no such additions should be made expect with the consent of the constituent Assembly, which may be called in the State for the purpose of framing its constitution. In other words, what we are committed to is that these additions are matters for the determination of the Constituent Assembly of the State”.  Ayyangar repeatedly said that the Government concurrence alone will not do. “That concurrence should be placed before the Constituent Assembly when it meets and the Constituent Assembly takes whatever decisions it likes on those matters”.

 He said it is abundantly clear that from 1953 onwards, especially in sixties, the process of erosion of the State autonomy began rapidly and on massive scale, adding that they assault on the State autonomy has to be and must be undone. For this purpose, he said the State autonomy committee has prepared a comprehensive report, which was approved by both Houses of the Legislature by two-thirds majority and the Centre should reconsidered this authentic and legal document so that  peace can return to the State on sustain basis.

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