Jammu Civil Society Addresses the Justice Saghir Report

Balraj Puri and Rekha Chowdhary debate a "Jammu Perspective" on the Report by Justice Saghir on the State-Center relations

(Mr. Balraj Puri, 80, was born in Jammu city and attended the Ranbir High School and the Prince of Wales College in Jammu. He is a journalist, human rights activist and a writer who has been an eye witness to the turbulent history of the State. He has written 5 books, including the historical "5000 years of Kashmir" in 1997. He is the Convenor of the J&K State branch of the People’s Union for Civil Liberties (PUCL), and the Director of the Institute of Jammu and Kashmir Affairs, based in Jammu.

Prof. Rekha Chowdhary, 55, was born in Jammu and has been a university teacher for the past 30 years. She is currently the Professor of Political Science, University of Jammu. During her distinguished teaching career, she was the visiting Fellow under a Ford Foundation grant at the Queen Elizabeth House, Oxford, in 1992-1993; winner of the Commonwealth Award availed at the University of Oxford, 1997-1998; and the Fulbright Fellow availed at the School of Advanced International Studies (SAIS) at the Johns Hopkins University, Washington DC, in 2005.)

Balraj Puri: Justice Saghir’s Report leads to regional polarization

Predictably the reaction to Justice Saghir Ahmad’s recently released report has been on divergent lines. Senior BJP leader and its representative on the Group, Arun Jaitely called the report “a fraud.” He reiterated the party’s opposition to autonomy for the state and demanded abrogation of Article 370. Other Jammu based parties like Panthers Party and Jammu State Morcha equally ridiculed the report. Panthers called hartal in protest. The Bar Association of Jammu also called a strike on another day. Kashmiri Pandit migrants in Jammu and refugees from Pak and West Pakistan, too, have expressed their disappointment.

Ladakh’s Union Territory Front leaders has decided “to oppose the report tooth and nail.” Separatist parties of Kashmir region did not attach any importance to the report as it did not propose any thing that could contribute to the solution of the Kashmir problem. The PDP’s President Mahbooba Mufti called the report a good beginning but “with no specifics and substance”. Its chief spokesman Nayeem Akhtar added, there was no concrete suggestions in the report for the solution of the Kashmir problem, mere restoration of some autonomy to the state was no solution of Kashmir problem.” The ruling coalition partner National Conference welcomed the report though it fell short of its demand for restoration of 1953 status of the state.

On the whole, reaction in the valley is either lukewarm or indifferent while in Jammu and Ladakh regions it is hostile.

Obviously there was no member in the Working Group who could take an objective view of the aspirations of the three regions and reconcile them. Nor Justice Saghir consulted any person well versed with the ground realities of the state.

Executive powers of the Centre Vs autonomous federal institutions.

Take the question of Centre-State relations, the entire debate over it has been viewed as Kashmiri nationalism versus Indian Nationalism. But what is in the interest of people of Kashmir? If, for instance, Supreme Court’s jurisdiction had extended to the state in 1953, Sheikh Abdullah could not be dismissed and detained under any law then enforce. Similarly financial integration of the state sustains its economy. Similarly if jurisdiction of Lok Adalat Act, Police Reforms, National Human Rights Commission and National Women’s Commission does not extent to the state, whose loss it is? As long as the state had its own Election Commission, the elections were known to be rigged. The fairness of elections now under Union Election Commission has been universally acclaimed.

In the post Nehru era, drastic erosion of the autonomy of the state did take place. But while demanding restoration of autonomy, a distinction has to be drawn between executive powers of the centre and federal autonomous institutions like Judiciary, Election Commission and Auditor and Comptroller General which check undue encroachment of the Central executive in the affairs of the state.

Whatever be merits and demerits of Article 370, it has nothing to do with problems of Jammu and Ladakh. Moreover if the BJP led government when in power could not abrogate it and its law minister told Parliament that it had no power to abrogate, how the party does expects any other government to do it.

When Justice Saghir Ahmad quotes official figures to prove that there has been no discrimination in development expenditure with any region or district, he must have known that nothing ensures faster and fair development than empowerment of the people at every level, who through their elected representatives should determine their needs and decide their priorities. Allocation of funds should be based on an objective and equitable formula, keeping in view needs and level of development of a region or a district rather than arbitrarily determined by ruling party on subjective and political considerations. Moreover, regional identity is no less important. If it is weakened, religion based identities would emerge which would undermine the secular basis of the state and its unity. In particular the unique 5000 year old Kashmiri civilization would suffer.

Restore Ladakh’s Regional Identity

Justice Ahmad is all appreciation for development of Ladakh. But he ignores the fact that ever since Ladakh’s regional identity was broken into Leh and Kargil districts—with 52% Buddhist and 48% Muslim population-- communal tensions have emerged for the first time there. First priority for Ladakh should be its recognition as a region within the constitution of the state like Jammu and Kashmir which should restore its secular identity and give it some administrative autonomy like other two regions. The present powers of the Autonomous Council separately for Leh and Kargil are no more than enjoyed by Zila Parishads in many other parts of the country.

A federal decentralized set up alone can ensure emotional and political unity of the state. Regional autonomy is the logical extension of the autonomy of the state as Pandit Nehru and Sheikh Abdullah had announced at a joint press conference on July 24, 1952 and was the basis on which the Praja Parishad, Jammu affiliate of the Jana Sangh, withdrew its agitation for abrogation of Article 370 in 1953. The State People’s Convention convened by Sheikh Abdullah and attended by the entire political spectrum of the Valley adopted a five tier internal constitution in 1968 which provided for regional autonomy and devolution of political power to the districts, blocks and panchayats. In this context Justice Ahmad’s recommendation for adoption of 73rd and 74th amendment of Indian Constitution on Panchayati Raj is quite relevant.

As far refugees from Pak administered Kashmir and West Pakistan are concerned, in brief they should be treated as refugees in Punjab and West Bengal were treated after 1947. The problem of Kashmiri Pandits migrants in Jammu cannot be resolved by monetary sops or security zones in Kashmir. Conditions should be created to make them feel as integral part of Kashmiri identity. The Kashmiri Muslims should also realize that their identity is incomplete without them.

The recommendation on separate Kashmiri and Dogri Channels of the Doordarshan instead of single Kashir channel should be accepted with a minor amendment that is Jammu channel should also provide for Gojri and Pahari programmes, the two equally important ethnic communities of the Jammu region, other than Dogras.

There is certainly need for a thorough and frank debate on all the issues raised by the fifth Working Groups by all sections which should generate some light also instead of mere heat that it has as done so far. The separatists should also not dismiss of the report particularly which deals with the internal problems of the state. For why should people wait for the resolution of the problems of governance till they get Azadi. After all Sheikh Abdullah presented a blue print called Naya Kashmir in 1944 while fighting for Azadi from Dogra rule and convened People’s Convention which adopted internal constitution of the state in 1968 when he was leading a movement for plebiscite.

Rekha Chowdhary: Autonomy Issue - Need for a debate

As has been stated by Balraj Puri in his article (Justice Saghir’s Report Leads to Regional Polarisation, Rising Kashmir, 11th January, 2010), there is a need for a thorough and frank debate on all issues raised by the fifth Working Committee Report. However, of all the issues which have been included in the Report, the most important issue that needs to be debated is that of ‘Autonomy’. Despite all the heat and dust raised by the issue from time to time, this remains the least debated one.

Till now the ‘Autonomy’ as an issue has aroused emotions and sentiments – both in favour or against, but never has there been reasoned debate around it! In the absence of the reasoned debate, the issue remains misunderstood and misrepresented. Last time when the debate could have taken place on the issue, but was ducked, was in 1999 when the State Autonomy Committee Report and the Autonomy Resolutions were rejected by the Government of India, even without debate. In the absence of a debate, only two kinds of absolutist responses are generated – those in favour and those opposed to it.

The reluctance to debate the issue of autonomy is a common phenomenon both for those who oppose autonomy as well as those who favour it. And that is the reason that we stand where we were - in 1999, or should we say in 1952? For 1952 was the time when the emotions were generated for the first time in this state around the issue of Autonomy and a major agitation against Article 370 had taken place in Jammu under the slogan of ‘ek vidhan, ek pradhan and ek nishan’. The agitation had been organised by the Praja Parishad in Jammu and supported by Jana Sangh and the RSS.

It is not only the opponents of Autonomy who have remained static in terms of time and have continued to take the position which was taken as early as in 1952, the supporters of autonomy have also remained static and that is the reason that their position remains defined by history and their demand remains going back to the pre-1953 position. This position is seen as a pristine one, more or less, a non-negotiable position.

The first point which is important for opening the debate on autonomy is the need to go beyond the history. Both for the opponents as well as supporters of autonomy, it may be pertinent to mention that whatever may be the experience and relevance of history, the demands of the contemporary period are quite different from those of the past. Hence, there is need to locate the issues in the present period. This is more so, because the concepts of Federalism, Autonomy, Nation and State – which remain central to the discourse on Autonomy, have undergone substantial change during last six decades. For instance, during the early fifties, when the discourse of Autonomy was opposed by the likes of Shyama Prasad Mukherjee and other leaders of Jana Sangh and RSS, both the concept of ‘Nation’ as well ‘Federalism’ were perceived in a different manner as compared to the way these are perceived now. The emergence of Indian nation following a bloody partition had generated a political psyche of the ‘fear of fragmentation’ and hence the nation-building project was based upon the concept of ‘unity with uniformities’. Any kind of asymmetry or difference was suspect since it was seen as a potential tool of India’s further division. Mindless of the logic that Autonomy and asymmetrical federalism as built in the Article 370 of the Indian constitution, was actually the most potent bridge between this state and rest of India, the Jana Sangh had taken the logic of opposing it as a symbol of lack of integrity of the state of J&K with India.

Six decades, later, it is a different project of Nation-building and Federalism. It is a confident nation of India which does not fear fragmentation. Despite the situation of conflict in J&K and North-East, the fear of division of the India does not exist at all. The earlier emphasis on ‘unity and uniformity’ therefore is no more to be seen. The present day values of nationalism rather than unity and uniformity have been substituted by the principles of ‘diversity and plurality’. The perceived fragility of the Nation-state of India had given birth to the concept of centralised federalism. There was a consensus at the time of the making of Constitution of India that the Centre needed to be empowered and made much stronger than the states. Centralisation therefore was the positive value of that time. Over the period, the emphasis of federalism has been changing from centralisation to decentralisation. Decentralisation is now seen as the positive value in India.

Autonomy did not fit in the centralised model of federalism. But it certainly fits in the post-70s India, which not only favours political decentralisation like the one introduced by the 73rd and 74th amendments but also the financial autonomy which the state and non-state actors enjoy in the post 90s liberalised economy. Special Economic Zone is an instance of autonomy being enjoyed by the corporate sector. In fact, it is in the economic context that one can see as to how radically the concept of ‘state-sovereignty’ is changed. While the Article 370 which laid the base of asymmetrical federalism has been opposed by the Hindu Right on the ground that it compromises the sovereignty of the State, in present day India, there is lot of sovereignty enjoyed by the states like Karnataka, Maharashtra and Gujarat. These states have the sovereign power to enter into financial arrangements directly with the global institutions and other sovereign states of the world. Opposing autonomy on the ground that it compromises sovereignty therefore does not fit into the present day logic.

The way the opposition to the autonomy logic does not have relevance for the present day’s logic, similarly, the strict adherence to a particular historical period, like that of pre-1953 position does not stand the test of contemporary period. In terms of democratic institutionalisation, there have been lots of developments in the last few decades. One of the most important developments is in terms of the strength and autonomy of the certain institutions of Union of India. These institutions have not only become the pillars of democracy checking the abuse of power by the executive, but also have acquired pro-people character. Some of these institutions have been the result of the struggles that have taken place at the grass roots levels. One can for instance refer to the success of the Right to information movement and its institutionalisation at the national level. There is similarly the empowerment and autonomy of the Election Commission of India. Over the period, the Supreme Court of India has also been playing an effective role in protecting the rights of people. The pro-people character of these institutions has certainly gone hand in hand with their relative autonomy from the state. In contrast to this, there is a scenario in the state, where in the name of the State’s autonomy; the benefit of some of these institutions has been kept away from the people.

The opposition to the concept of autonomy does not have relevance for the present day’s logic, similarly, the strict adherence to a particular historical period, like that of pre-1953 position does not stand the test of contemporary period. In terms of democratic institutionalisation, there have been lots of developments in the last few decades. One of the most important developments is in term of the strength and autonomy of the certain institutions of Union of India. These institutions have not only become the pillars of democracy checking the abuse of power by the executive, but also have acquired pro-people character.

Some of these institutions have been the result of the struggles that have taken place at the grass roots levels. One can for instance refer to the success of the Right to information movement and its institutionalisation at the national level. Similarly there is the empowerment and autonomy of the Election Commission of India. Over the period, the Supreme Court of India has also been playing an effective role in protecting the rights of people. The pro-people character of these institutions has certainly gone hand in hand with their relative autonomy from the state. In contrast to this, there is a scenario in the state, where in the name of the State’s autonomy; the benefit of some of these institutions has been kept away from the people.

It is no wonder that while the whole of India is covered by the National Commission of Women and the National Human Rights Commission, the people of the state are kept out of it. The Right to Information could not reach the people of this state till very recently and the state’s women have been kept away from the benefit of 33% reservation and empowerment as Panches and Sarpanches. The issue of Autonomy, in the light of these institutions and processes needs to be seen from a fresh angle. In a situation where the National Commission of Women has not been replicated by the State Commission of Women, in terms of its authority and power and where its operation is still restrained (for more than seven years, the commission remains headless) one can argue that autonomy may not always work in favour of people, even if it is extended to the state. The political class does not necessarily think in terms of empowering the people and is more interested in perpetuating its own interests. In fact, when it comes to the empowerment and autonomy of the people, the political class irrespective of the difference in ideological position may take the same position. For instance, the empowerment of Panchayat Raj institutions is almost a non-issue even when it means greater proximity of people to the decision making centres. Similarly, there is not much demand for empowering the State Commission of Women or reducing the term of State Legislative Assembly from six to five years. One needs to be reminded of the fact that the term of the J&K Legislative Assembly was extended from normal five to six years during the period of emergency in India. While it served the interest of the serving political elite which was assuming authoritarian character, there was reassertion of democratic principles and the term of the Assemblies and Lok Sabha was reversed to five years. In J&K no political party thought to make it an issue. While daggers are drawn on the issue of ‘Autonomy of the State’, issues related to autonomy and power of people do not, at any point of time, assume emotive character.

The discourse of Autonomy, therefore, needs to be shifted from its pro-elite mode to pro-people mode. Once, it is seen from the perspective of ‘people’ then it becomes imperative to make use of any institution or process that empowers people.

The context of autonomy as it stands at present, makes for a very legal/historical understanding of the concept and therefore places the institutions like the National Human Rights Commission (NHRC), Central Information Commission (CIC), National Commission for Women (NCW), and National Commission for Protection of Child Rights (NCPCR) etc. in contradiction to the context of autonomy of the State. All these institutions are aimed at empowering the people. These institutions are, constituted by the Government of India, but are not controlled by the Government. On the contrary these are autonomous bodies. Extension of jurisdiction of any of these bodies to the citizens of J&K would not have hampered their autonomy but would have, on the contrary, enabled them. However, in the name of ‘autonomy of the state’, the benefit of these institutions has been either fully or partially denied to the people of the state. The argument that the state has its own ‘autonomous’ institutions at par with most of these Central institutions, does not hold mainly due to the fact that most of these are hampered by their very structures and are certainly less effective than the bodies operating at the national level.

It needs to be debated whether the extension of these kinds of institutions really hampers the autonomy of the state, or on the contrary, the denial of the benefits of these institutions to the people of the state, hampers the empowerment and autonomy of people of the state.

While debating autonomy, the spirit of autonomy needs to be understood. Though it is a concept that emanates from the federal structure and aims to empower the State as a political unit vis-à-vis the Union government, its empowerment does not take place at the cost of empowerment of people. This also has been the basis of the concept of Autonomy in J&K. One needs to remember that the negotiation of autonomy by Sheikh Abdullah in 1950s was linked with the need to protect the pro-people radical land reform legislations in J&K.

It is in the same spirit of linking the concept of Autonomy with the pro-people politics, institutions and processes, that the concept should be renegotiated.