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Pok / Northern Areas Columnist

A cruel hoax

In a constructive approach, Prime Minister Manmohan Singh convened three Round Table Conferences on the Kashmir problem. At the second, in Srinagar on May 24 and 25, 2006, five Working Groups were set up. The Chairmen of four groups presented their Reports to the third RTC in New Delhi on April 24, 2007 – N.C. Saxena on good governance; C. Rangarajan on economic development; M.K. Rasgotra on strengthening relations across the Line of Control (LoC); and Mohammad Hamid Ansari on confidence-building measures (CBMs) across segments of society in the State. All, particularly the last two, were able documents. It is another matter that they were pigeonholed.

The report of the fifth group, headed by Justice (retd.) S. Saghir Ahmad, former Chief Justice of the Jammu and Kashmir High Court and judge of the Supreme Court, on Centre-State relations was the most sensitive. If wisely written, the report could have served as a basis for all-party dialogue and invested the RTCs with success. The Working Group was formed to find a common ground on self-rule, autonomy and regional aspirations. More than any other report, this was eagerly awaited. The Group held five meetings between December 1, 2006, and September 3, 2007, when Saghir Ahmad “assured the members of [sic] convening its next, and apparently final, meeting soon. However, the Group never met since then” (Zulfikar Majid; Greater Kashmir; October 24, 2009). No prizes are given for guessing how he came to submit the report suddenly on December 18, 2009.

It is a cruel hoax on the people of Kashmir. In its studied and cowardly evasion of the crucial issues, it would shame even a slippery politician. The quality of its discourse on the Constitution would disgrace an undergraduate in law. Saghir Ahmad’s report provides no assistance to the political parties who cooperated with him and least of all to those who entrusted so responsible a task to him.

The issues under the purview of the Working Group V were as follows: Strengthening relations between the State and the Centre and to deliberate on 1) matters relating to the special status of Jammu and Kashmir within the Indian Union; 2) methods of strengthening democracy, secularism and the rule of law in the State; 3) effective devolution of powers among different regions to meet regional, sub-regional and ethnic aspirations. The central issue was erosion of Article 370, a fact admitted by Jawaharlal Nehru in the Lok Sabha on November 27, 1963. More, “This process of gradual erosion of Art. 370 is going on…. We should allow it to go on.” Home Minister G.L. Nanda said on December 4, 1964, that Article 370 could serve as a “tunnel in the wall” between the Centre and Jammu and Kashmir to increase Central power. A provision negotiated for five months (May-October 1949) to guarantee Jammu and Kashmir’s autonomy was perverted to subvert it. Hence the popular protests which the unionists shared.
Each of the three unionist parties presented its case with its ablest advocate – the National Conference through Abdul Rahim Rather, Finance Minister and the brain behind the State’s Autonomy Report (1990); the People’s Democratic Party through Muzaffar Hussein Baig, former Deputy Chief Minister; and the Congress through Prof. Saifuddin Soz, former Union Minister. The State’s Autonomy Report, an excellently documented expose of the Centre’s abuse of Article 370, omits the external dimension. The PDP’s concept of “Self Rule” supplies this vital component – the links between the two parts of Jammu and Kashmir. In three places, the report complains that Baig had promised to present “a comprehensive document” on self-rule, yet did not do so.

Saghir Ahmad records all the parties’ submissions, including those of the Bharatiya Janata Party (BJP) and hints at the outset that the job is beyond him. “In order to find out an answer to these questions, it would be necessary to delve into the archives of old records which would reveal the historical and political background of Article 370 of the Constitution of India.”

This is utter nonsense. The published material, including the debates in the Constituent Assembly and the Nehru-Sheikh Abdullah correspondence, which he ignores, provide material enough. In any case, two years are more than enough for archival research.

Instead, he draws extensively on books on Jammu and Kashmir’s Constitution by the former Chief Justice of India, A.S. Anand, and former Judge R.P. Sethi, which are hostile to Kashmir’s autonomy. Familiar documents like the Instrument of Accession and the ruler’s collateral letter on ascertaining the people’s wishes are out.

The entire debate on the Article 370 in the Constituent Assembly on October 17, 1949, and N. Gopalaswamy Ayyangar’s authoritative exposition are completely omitted.

There are but two judgments of the Supreme Court on Article 370: Premnath vs. State of J & K (AIR 1959 S.C. 749) and Sampat Prakash vs. State of J & K. AIR 1970 1118, which, he rightly notes, took a contrary view to the first case. Justice M. Hidayatullah was on both Benches but did not refer to the earlier case. The first case ruled in favour of autonomy; the second, against it. A former judge of the Supreme Court charged with the task that he was, should have analysed both. Both are dismissed in a single laconic paragraph.

In the same spirit, the Delhi Agreement of 1952 and the Indira Gandhi-Sheikh Abdullah Accord of 1975 are also set out, so is a list of 43 orders under Article 370, after the major one of May 14, 1954, a list of the Chief Ministers from 1952 to 2008; and the periods of Governor’s and Central Rule. The purpose of the fatuous exercise emerges on page 64 of the 101-page report: “Article 370 (1) (D) (11) provides that an addition to the matters in the Union List and the Concurrent List as set out in Clause 1 (b), the Right of Parliament to make laws will also extend to such other matters in that list as with the concurrence of the government of the State, the President may by Order specify. The list of Chief Ministers given above indicates that there was always a popular government in power and, therefore, the Presidential Orders were apparently issued with the concurrence of that government.”

This is false. He surely knows that the government’s power to accord the concurrence was subject to ratification by the Constituent Assembly of Jammu and Kashmir as Clause (2) of Article 370 makes clear and both Gopalaswamy Ayyangar and Sheikh Abdullah emphasised. On page 16 he himself records A.R. Rather’s unanswerable argument that the government’s power to accord concurrence ended once the State’s Constituent Assembly met in 1951 and the Assembly’s ratificatory authority ended on its dissolution in 1956.

Clearly, Saghir Ahmad is out to deny the erosion of Article 370 and the State’s autonomy. The Explanation to Article 370 (1) defining the government of the State does not and cannot override the explicit bar in Clause (2) of Article 370. But read this gem: “Under Governor’s Rule, there is, obviously, no council of Ministers and the Governor acts on his own without any advice being tendered to him by the Council of Ministers. If any entry in the Union List which did not pertain to the three items, namely, Defence, External Affairs and Communication was extended to the State of Jammu & Kashmir during Governor’s Rule, can it be said that such entry was properly and legally extended. This is a query which naturally arises in the mind but it cannot be finally decided, as this question, as stated by the present Law Secretary in his report quoted earlier, a Writ Petition Dr. Mohd. Amin Andrabai and another (Rakesh Kumar) v. Union of India and two others, namely, State of J&K, and Mr. Jagmohan, Governor is pending in the Delhi High Court since 1988.” A case pending for over 20 years cannot debar a body like Group V or, for that matter, anybody from expressing an opinion on the law. Banality keeps pace with evasiveness. “There is a positive distribution of legislative and administrative powers between the Union and the State. This has been provided with the obvious object of maintaining harmonious relations between the Centre and the State.” Ergo, all is well in Jammu and Kashmir.

But where he does opine, it is in favour of New Delhi, not Srinagar. “It is clear that legislative fields had already been indicated between the Centre and the State in the Document of Accession which was also incorporated in the Indian Constitution in the form of Article 370 and, therefore, the Parliament, to begin with, could make laws for the State of Jammu and Kashmir only on the topics indicated in the Schedule attached with the document of Accession but also on the topics subsequently applied to the State of J&K.”

On page 86, he mentions Kashmir’s Constituent Assembly and Rather’s argument based on it, but quotes Sethi’s predictable disagreement from it, which Saghir Ahmad, doubtless, shares (Sethi’s language gives him away – “patronages of the autonomy for the State”; “bad law and bad English make bad companions”). Anand’s outlook is no different from Sethi’s or Saghir Ahmad’s who quotes both at length approvingly. The 1975 Accord was a political one based on wrong legal advice by a bureaucrat. It was torn up in 1977 when the Congress withdrew support to the Sheikh’s government. Saghir Ahmad’s praise of Indira Gandhi (page 98) is odd. So is the reference to the Gajendragadkar Commission. Its remit is not Article 370 but regional disparities.

He concludes: “The question of Autonomy and its demand can be examined in the light of the Kashmir Account or in some other manner or on the basis of some other formula as the present Prime Minister may deem fit and appropriate so as to restore the Autonomy to the extent possible. This is also a long pending demand which requires to be settled once for all to usher in a brighter relationship between the Centre and the State. The question of appointment of the Governor and dismissal of the popular Government by the Governor may be considered and resolved.”

Did he need two years to write this? What help does such a report render to a government that seeks sincerely to resolve the problem? What help this counsel?: “A period of about 60 years is a long period and the Working Group recommends that the question of Article 370 should be settled once for all and the state of uncertainty in respect of this Article should be given a final shape.”

Evasiveness permeates the report interspersed with support to the Centre’s old and discredited stand. Even Jagmohan’s destruction of the State’s residuary powers evokes no censure.

Saghir Ahmad has played safe; but in doing so, he has betrayed the trust reposed in him. The separatists must be laughing in their sleeves. Was this the purpose of Group V in the RTC? Surely not.