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December 24, 2006
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December 24, 2006




Page: 22/32

Home > 2006 Issues > December 24, 2006

Opinion

Pakistan is not offering solutions but laying a trap on Kashmir

By Jagmohan

As in other states of the union, people of Jammu and Kashmir elect their own representatives to the Legislative Assembly, which has vast area of independent governance under its jurisdiction.

Musharraf is searching for line of retreat. But a realistic interpretation, which is more in tune with his past deeds, would lead to the conclusion that he is laying a trap for India.

To temper with the present structure, either at the instance of President Musharraf or on the demand of some politically ambitious local leaders, would amount to nothing but fanning further the forces of subversion.

Of late, Pakistan President Musharraf has been talking of the possible lines on which solution of the Kashmir problem could be worked out. The most charitable interpretation that can be put on President Musharraf?s suggestions is that, like a good General, he is searching for line of retreat. But a realistic interpretation, which is more in tune with Musharraf?s past deeds, would lead to the conclusion that he is laying a trap for India and attempting to attain his objective that he could not attain by way of terror-tactics and proxy war. Let me analyse these suggestions, one by one

President Musharraf has never cared to spell out his concept of self-governance, though he has been saying: ?We need to define what is the maximum autonomy that you are talking of and what is the self-governance that I am talking of.?

The Indian Side
As in other states of the Union, people of Jammu and Kashmir elect their own representatives to the Legislative Assembly, which has vast area of independent governance under its jurisdiction. Not only that, the state of Jammu and Kashmir enjoys a special status under Article 370 of the Indian Constitution. Under this Article, with the exception of subjects of defence, foreign affairs and communications, no law enacted by Union Parliament with regard to any other item in the union and concurrent lists can made applicable to Jammu and Kashmir, unless the state government gives it consent. Apart from it, Jammu and Kashmir is the only state of the Indian Union, which has its own Constitution. Even the governor of the state is appointed under this Constitution. The special position of the state also extends to many other spheres. While the citizens of Jammu and Kashmir are citizens of India and have six members of Parliament as their representatives, the citizens of India are not ipso facto citizens of Jammu and Kashmir. They cannot hold property in the state. They have no right to vote in the elections to the Assembly or the municipalities or the panchayats. Further, no declaration of financial emergency can be made with regard to Jammu and Kashmir. Nor can the President of India issue directions to the Jammu and Kashmir state government in exercise of the executive power of the union-a power that he enjoys with regard to all other states.

Historical Context
Unfortunately, on account of narrow political considerations, attempt has been made by vested interests from time to time to propagate that the autonomy, initially promised, has been denied to the state. This attempt rests on false assumptions and ignores the historical context. The actual position is that in order to bring about a working arrangement between the state and the union, an agreement, known as Delhi Agreement, was arrived at in 1952, after detailed discussions of Sheikh Mohammad Abdullah with Jawaharlal Nehru. It was in pursuance of this Agreement that the President of India promulgated the Constitution (Application to Jammu and Kashmir) Order, 1954. This Order was amended from time to time to extend a few provisions of the Indian Constitution to the state. Financial integration was effected through the 1954 Presidential Order. The jurisdiction of Comptroller and Auditor-General was extended in 1958. In 1960, the Supreme Court was given powers to entertain ?special leave to appeal? from the decision of the Jammu and Kashmir High Court. The supervisory role of the Election Commission of India was also allowed. Articles 356 and 357 of the Indian Constitution were made applicable in 1956.

No Change Sought
Even after the Kashmir Accord (1975) neither the government of Sheikh Abdullah nor that of Dr Farooq Abdullah could formulate, in concrete terms, any proposal and send the same to the Government of India, with regard to withdrawal of any law or provision of the Indian Constitution, which had been extended to the state during the period August 1953 to February 1975.

The reason why, in spite of the provision for review in the Kashmir Accord, no change was sought was that all the measures enforced during the period August 1953 to February 1975 were necessitated by practical considerations and were in the interest of the common citizen of the state. What objection, for instance, could be taken to the extension of jurisdiction of the Election Commission or the Supreme Court or the Comptroller and Auditor-General of India? These extensions merely make available a stronger framework for delivery of justice, a better system of accounting and a more independent body for conducting elections. In what way do they militate against the identity or personality of Kashmir? The truth is that the bogey that was raised by Sheikh Abdullah about erosion of Kashmir?s autonomy was nothing but a ruse to exploit the constitutional ignorance of the common Kashmiri and to present himself to the people as a champion of their cause.

Concrete Questions
Those who demand pre-1952/53 status or advocate maximum autonomy for Jammu and Kashmir take care not to address themselves to concrete questions. They remain conveniently vague and show little respect to the practical implications of their stand. For instance, they suppress the fact that, in the absence of full financial integration with the union, Jammu and Kashmir would have no resource at all for development. It is the union finances that provide the entire funds for the state?s five-year plans and also for a substantial part of the non-plan expenditure. The extent of finances available to it from the union can be seen from the fact that, while Bihar gets per capita assistance of Rs 876, Jammu and Kashmir gets Rs 9,754, that is, about eleven times more than one of the poorest state of India. What will happen if the financial link is now ended? Who will fill in the gap?

Likewise, take another example-extension of Article 356 of the Indian Constitution, which enables the President of India to bring the state under his rule. It is often said that this extension constitutes an encroachment on the state?s autonomy. But no one asks a connected question: if there is a breakdown of the constitutional machinery in the state or if the state refuses to comply with any direction concerning defence, foreign affairs or communications, what will happen in the absence of President?s powers under Article 356? Suppose the governor has the corresponding powers, then does it not mean the President would have to submit to the decision of the governor, his own appointee?

If funds continue to flow to Kashmir from the union, as at present, and it is allowed, as is being advocated in certain quarters, to have and exclusive say on subjects other than defence, external affairs and communications, it could enact Islamic civil and criminal laws and even set up Shariat courts, on the same lines as has been done in Pakistan, and make it virtually a theocratic entity. Would not such a scenario do violence to the very preamble of our Constitution and also amount to secularism financing a theocracy?

Workable Self-Governance
Clearly, Jammu and Kashmir enjoys workable self-governance. To temper with the present structure, either at the instance of President Musharraf or on the demand of some politically ambitious local leaders, would amount to nothing but fanning further the forces of subversion and secession and pushing the state in the lap of Pakistan.

(The writer is a former Governor of Jammu & Kashmir and a former Union Minister.)




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