Open Essay

Kashmir’s Autonomy: The Valley of Flaws

Sumantra Bose is Professor of International and Comparative Politics at the London School of Economics and Political Science. His next book, Secular States, Religious Politics: India, Turkey, and the Future of Secularism, will be published in early 2018 by Cambridge University Press
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The question of Kashmir’s autonomy has become a poisoned chalice

THE BHARATIYA JAN Sangh’s first major agitation focused on Jammu & Kashmir. In May 1953, Syama Prasad Mookerjee, the Hindu Mahasabha politician from Bengal who had been recruited to become the new RSS-linked party’s first president in late 1951, entered the Jammu region to participate in an ongoing agitation in the region’s southern, Hindu-majority areas for J&K’s ‘full integration’ with the Indian Union. He was promptly arrested by the J&K Police and transferred to the Kashmir Valley, where he died in detention near Srinagar the following month. His death was one in a chain of events that led to Sheikh Mohammad Abdullah’s dramatic deposition from power on August 9th, 1953, and the beginning of a new era—which continues today—of the J&K-India relationship.

The Jammu agitation had started in 1949 but picked up momentum from late 1951, around the same time the Jan Sangh came into existence. It was led by the Praja Parishad, an organisation formed in late 1947 in Jammu city by former officials of the defunct princely state’s administration. From late 1951, the Parishad’s agitation intensified, for two reasons. First, it was joined by large landowners dispossessed by the ‘land to the tiller’ reforms—the most sweeping in the post-Raj Subcontinent—implemented by the Abdullah government from July 1950. Second, the election of a J&K constituent Assembly in autumn 1951 signalled Abdullah’s intent to monopolise J&K politics. The Assembly consisted of 75 members: 43 from the Kashmir Valley, 30 from Jammu and two from Ladakh (another 25 seats were kept vacant for PoK). An all-National Conference (JKNC) Assembly was ‘elected’. JKNC candidates were ‘elected unopposed’ to the Valley’s 43 seats. Two non-JKNC candidates, who filed papers for the Ladakh seats, ‘subsequently withdrew under pressure’, according to Josef Korbel of the United Nations Commission for India and Pakistan (UNCIP), the body established to administer a plebiscite across the erstwhile princely state. In Jammu, the Praja Parishad put up candidates in 28 of the region’s 30 seats. Thirteen were arbitrarily disqualified, and the Parishad then withdrew its remaining candidates in anticipation of a farcical election; it was meaningless to contest.

Denied any voice in the constituent Assembly—the Parishad would have won a few of the Jammu region’s seats had its candidates been allowed to run—the organisation hit the streets to campaign for full integration. Its rallying cry was ‘Ek Vidhaan, Ek Nishaan, Ek Pradhaan’. This referred, respectively, to Article 370 as well as the unique mandate of the J&K constituent Assembly to frame a state constitution, the also unique existence of a state flag (a slight variant of the JKNC party flag), and the equally unique ‘prime minister’ title of the J&K state premier. The fiery Praja Parishad and RSS leader Balraj Madhok—born in Skardu (PoK) in 1920 and died in obscurity in Delhi in 2016—who rose to become the Jan Sangh’s president in 1966-1967 before being sidelined and then purged from the party, described the movement’s aim as ‘full integration of Jammu and Kashmir State with the rest of India like other acceding [princely] States, and the safeguarding of the legitimate democratic rights of the people of Jammu from the communist-dominated and anti-Dogra government of Sheikh Abdullah’. The agitation received support from the spiritual and political leader of Ladakh’s Buddhist community, who feared the potential consequences of the Abdullah government’s land reform policy if extended to the Buddhist clergy’s immense landholdings in eastern Ladakh.

THE CRISIS—AND turning point—of the summer of 1953 had been brewing since the previous summer. In talks with Nehru’s government in Delhi in June-July 1952, a J&K delegation led by Abdullah rejected proposals for the state’s financial and fiscal integration with the Union, extension of the fundamental rights provisions of the Indian Constitution to the state, and making India’s Supreme Court the final court of appeal for J&K civil and criminal cases. They did agree to fly the Indian tricolour in a ‘supremely distinctive’ manner alongside the state flag. Reporting on the talks to his handpicked constituent Assembly in Srinagar in August 1952, Abdullah stated his commitment to “maximum autonomy for the local organs of state power, while discharging obligations as a unit of the Union’, and warned that ‘any suggestion of arbitrarily altering this basis of our relationship with India would not only constitute a breach of the spirit and letter of the Constitution [Article 370] but might invite serious consequences for the harmonious association of our state with India”. Reporting on the talks to the Lok Sabha, Nehru’s tone was one of frustration and weary resignation. He said he wanted “no forced unions” and if the J&K government wished “to part company with us, they can go their way and we shall go our way”.

In 1975, Sheikh Abdullah ended 22 years of defiance. The Indira-Abdullah accord asserted that the State of Jammu & Kashmir ‘continues to be governed by Article 370 of the Constitution of India’

In a combative speech in April 1952 in Ranbirsinghpora, in Jammu’s Hindu heartland on the border with Pakistani Punjab, Abdullah had called the demand for full integration “unrealistic, childish and savouring of lunacy”. In April 1953, however, he seemed to be looking to make peace with the anti-autonomy groups in Jammu and Ladakh. The basic principles committee of the J&K constituent Assembly proposed devolution of power to the state’s regions. It recommended that in addition to the state legislature, the Valley and the Jammu region should each have a directly elected Assembly with powers to legislate on specified subjects, as well as ministerial councils to deal with region-specific matters. Ladakh, it recommended, should also have an elected council to exercise local autonomy. But the Jammu agitators refused to take the bait and once the Jan Sangh appeared on the scene, Abdullah hardened his stance. In May 1953, the JKNC’s working committee appointed a sub- committee to examine options for the future political status of the entire pre-October 1947 princely state. In its report submitted on June 9th, 1953, the sub-committee outlined four options, all involving a plebiscite and independence for part or whole of the former princely state. The first recommended option called for a plebiscite across the erstwhile princely state but diverged from the four United Nations Security Council (UNSC) resolutions passed between 1948 and 1951 calling for such a plebiscite by suggesting that voters should have a third choice: independence. Abdullah refused to back down in correspondence during July with Nehru and Maulana Azad. Instead, he announced that he would convene the JKNC working committee and the party’s 110-member general council in late August to discuss the recommendations, preceded by a mass rally in Srinagar on the occasion of Bakr-Eid (August 21st) where he would speak on the subject. He was deposed and arrested before that could happen.

Mookerjee’s death in the quest for J&K’s integration with India was not in vain. From 1954, the Nehru Government embarked on a purposeful strategy of integrating the state with the Union. In May 1954, a constitutional order issued in the name of the President of India made Central legislation on the majority of subjects on the Union List applicable to J&K. Prior to this, Central jurisdiction was limited to the three categories of subjects mentioned in the Instrument of Accession of October 1947 (defence, foreign policy, communications), and under Article 370, the Centre could legislate even on these subjects ‘in consultation with the Government of Jammu and Kashmir State’ and on other Union List subjects with ‘the final concurrence of the Jammu and Kashmir Assembly’. Such concurrence was more than forthcoming from the new J&K government and its premier, Bakshi Ghulam Mohammed, who said that this was simply ‘fulfilling the formalities of our unbreakable bonds with India’. At the same time, J&K’s financial and fiscal relations with the Centre were placed on par with those of other states, and the Supreme Court in New Delhi got full jurisdiction over J&K. The fundamental rights of Indian citizens guaranteed by the Constitution were also to apply in the state, but with a crucial escape clause: those rights could be suspended by the J&K government at any time on grounds of security and public order and no judicial reviews of such suspensions would be allowed. This caveat was essential because of the overwhelming support the incarcerated Abdullah enjoyed in the Valley.

On January 26th, 1957, the J&K constitution came into effect after being approved by 67 of the constituent Assembly’s 75 members—the other eight were either in jail or stayed away— and the body was dissolved. The state constitution began: ‘The State of Jammu and Kashmir is and shall be an integral part of the Union of India’. Two days earlier, on January 24th, the UNSC passed its fifth and final resolution calling for a plebiscite. Subsequent attempts were vetoed by the Soviet Union, starting in February 1957.

When Mehbooba Mufti remarked in August 2017 that ‘there is hardly anything left in our special status’, she was completely right

Between the mid-1950s and mid-1970s, about 28 constitutional (presidential) orders pertaining to J&K were issued, overwhelmingly with an ‘integrative’ purpose, and some 262 items of Central legislation were made applicable to J&K. Article 35A (1954), issued via such an presidential order, which is currently under challenge in the Supreme Court, was an anomaly. Article 35A replicated a 1927 princely state law on the rights of state subjects. That law was promulgated due to a Kashmiri Pandit agitation against the hiring of civil servants for the Maharaja’s administration from outside the state, especially the adjoining British India province of Punjab. Kashmiri Pandits feared that this would fatally undermine their dominance of the princely state’s bureaucracy. At the time, and until at least the 1950s, the state’s Muslim population—77 per cent according to a 1941 census—were in no position to benefit. Sir Albion Bannerji, a Bengali (and Christian) appointed as the princely state’s ‘foreign and political minister’ in 1927, resigned in disgust in 1929. He explained why: ‘Jammu and Kashmir State is labouring under many disadvantages, with a large Muhammedan population absolutely illiterate, labouring under poverty and practically governed like dumb- driven cattle. There is no touch between the government and the people, no suitable opportunity for representing grievances, and the administrative machinery requires overhauling from top to bottom. It has at present little or no sympathy with the people’s wants and grievances’.

The next wave of integration came in the mid-1960s. In December 1964, a constitutional order made J&K subject to Articles 356 and 357 of the Indian Constitution, which empower the Centre to dismiss state governments and impose Central rule. In March 1965, the J&K Assembly amended the state constitution to replace the sadr-e-riyasat, the titular head of state formally elected by the state Assembly, with a New Delhi-appointed governor, changed the title of the state premier from ‘prime minister’ to ‘chief minister’, and provided for Lok Sabha elections in the state, which happened for the first time in 1967. The ruling clique which had usurped the JKNC label—Abdullah’s supporters operated from 1955 to 1975 as the Jammu & Kashmir Plebiscite Front—held 68 of the 74 seats in the Assembly elected in 1962 (the Praja Parishad held three, and there were three independents, including the head of Ladakh’s Buddhist clergy). In the 1962 election, 32 of the Valley’s 43 seats were filled without any contest; the rest saw token contests. In January, 1965, two months before the amendments, the ruling JKNC faction announced its new identity: the Jammu & Kashmir Pradesh Congress (PCC). Jayaprakash Narayan wrote in June, 1966, to Indira Gandhi, India’s new Prime Minister: ‘We profess democracy, but rule by force in Kashmir. We profess secularism, but let Hindu nationalism stampede us into trying to establish it by repression.’

IN 1975, SHEIKH Abdullah finally ended 22 years of defiance. It was a total, abject surrender. The so-called Indira- Abdullah accord which restored the aged Sheikh as Chief Minister— his attempt to reinstate the ‘prime minister’ title he had held in 1953 was unsuccessful— asserted that ‘the State of Jammu and Kashmir which is a constituent unit of the Union of India shall, in its relation to the Union, continues to be governed by Article 370 of the Constitution of India’. However, it added that ‘provisions of the Constitution of India already applied to the State of Jammu and Kashmir… are unalterable’. The only concession made by New Delhi to Srinagar was minor: ‘With a view to assuring freedom to the State of Jammu and Kashmir to have its own legislation on welfare measures, cultural matters, social security, personal law and procedural laws, in a manner suited to the special conditions in the State [a coy reference to its Muslim-majority demography], it is agreed that the State Government can review [Central] laws extended after 1953 on any matter relatable to the Concurrent List, and may decide which of them, in its opinion, needs amendment or repeal. Thereafter, appropriate steps may be taken under Article 254 of the Constitution of India. The grant of President’s assent to any such legislation [of the J&K Assembly] would be sympathetically considered.’ A committee was set up to examine Concurrent List legislation extended to J&K after 1953. Its recommendations remain unknown.

So when Mehbooba Mufti remarked in August 2017 that “there is hardly anything left in our special status”, she was completely right. As was Omar Abdullah when he said at the same time that if Article 35A were to be struck down, “there will be nothing left” (of J&K’s alleged autonomy). The BJP’s manifesto for the 2014 Lok Sabha election stated: ‘The BJP reiterates its stand on Article 370…and remains committed to the abrogation of this article’. The 2015 BJP-PDP ‘Agenda of Alliance’ stated that ‘whilst recognising the different positions of the parties [on Article 370], all the constitutional provisions pertaining to Kashmir including the special status’ would continue. Indeed, the status quo suits any minimally sensible government in New Delhi just fine.

Autonomy (auto=self; nomos=rule/law) can be a very useful tool for ‘securing a wider union’, in the phrase of the scholar Preston King. Autonomy can whet secessionist appetites, but it can equally serve to contain them. Canada (a fully federal state) and the United Kingdom and Spain (unitary states but with significant devolution, since the end-1990s and early 1980s respectively) are examples. All have significant secessionist movements: in Quebec, Scotland and Catalonia. Quebec’s second independence referendum, in 1995, came within a whisker of passing (49.6 per cent ‘yes’, 50.4 per cent ‘no’ in a 93 per cent turnout). In Scotland’s 2014 referendum, 44.7 per cent of those who voted (turnout 85 per cent) said ‘yes’ to the question: ‘Should Scotland be an independent country?’ Yet narrow majorities in both cases ultimately preferred autonomy to the siren-call of independence. If the Spanish government were to change its mind and permit an official independence referendum in Catalonia—it currently refuses to do so—it is likely that the Catalan separatists will be similarly defeated.

The most significant contemporary example of King’s dictum on the utility of autonomy is incontrovertibly the Union of India. In Jammu & Kashmir, however, autonomy was not put to a test. It turned, instead, into the proverbial poisoned chalice in a tragedy of Shakespearean proportions.