Dr Ganesh Malhotra
The State autonomy and devolution of powers occupies a very pivotal position in a federal setup. The federal system means that there is a distribution of governmental powers between the Federal Government and the States Governments.
There are comparisons of demand of autonomy of J&K with devolution of powers in Britain among four regions and on the pattern of referendum adopted in western countries particularly UK. Without understanding the constitutional status of J&K and its position in Indian Union such comparisons show lack of in-depth understanding of topic. Political positions vary from country to country and on the basis of conditions. The United Kingdom had one of the most centralised Constitutions. There was one Parliament, except for Northern Ireland. Everything was done through London and White Tower, and there was very little scope for regional variations in the country. There was England, which is the large and dominant part; there was Scotland, Wales and Northern Ireland with all these four units were under one single authority, cabinet, parliament and monarch. Over the years, 50 odd years, there was a steady devolution of power because there was a movement in these various regions for more devolution of power. The movements were democratic and they were expressed through formation of new parties or through old parties which were in these regions and came to prominence.
The devolution of powers concept of UK can’t fit in J&K in any situation because the conditions are totally different in J&K and J&K right from very beginning enjoying such autonomy. J&K comprised of mainly four regions in 1947 i.e. Jammu, Kashmir, Gilgit-Baltistan and Ladakh. But Gilgit-Baltistan, some portion Jammu and Kashmir region as well some portion of Ladakh was illegally and forcefully occupied by Pakistan and China. So here involved foreign elements in J&K. In Britain the concept of any foreign element wasn’t there. So devolution of power took in a smooth manner within the contours of constitutional setup of the country. In J&K autonomy has been used by separatist elements as a tool for demanding secession from Indian Union. The demand of such autonomy loses its credibility right at beginning because of fragmented nature of territory of J&K. Referendum or Plebiscite can’t be possible in just half of territory of J&K and that too in such a situation when proxy war has been promoted by Pakistan in the State leading to displacement of large population of State particularly POJK and Kashmir. The demand of autonomy is purely an internal matter of India.
J&K became part of India on 26th October 1947. In 1956 J&K adopted its own constitution with more autonomy at very outset. Although India has adopted the concept of strong centre in Indian constitution but this concept of strong centre is not applicable in J&K. No law of centre is applicable in J&K without the concurrence of the State. The State of Jammu and Kashmir possesses more state autonomy as compared to other States of Indian Union. Since the beginning of its relationship with the Indian Union, there has been a persistent demand for more autonomy by the State of Jammu and Kashmir. It has been argued time and again that the State of Jammu and Kashmir has a unique identity owing to its composite culture and a distinct political and constitutional history so it should be given more autonomy. The promoters of this idea have always projected it more as Centre-State relations issue and decentralisation of powers as in other States also. But it needs to be analysed that what Autonomy means in J&K.
It is argued by the supporters of the Autonomy that autonomy will lead to empowerment of people and will lead to decentralisation of powers. But actually the autonomy which J&K is already enjoying has been used for depriving the people from many benefits which people are enjoying in other parts of the country.
Under Autonomy J&K has been given power to decide the rights of Permanent Residents in J&K but these laws have led to deprivation of basic fundamental rights to women residents of J&K. Under Section 6 as well as Sections 8 and 9 of J&K Constitution, the State Legislature the right to define Permanent Residents. The family of woman marrying outside J&K cannot get PRC, hence none of the associated benefits. Which means they cannot buy land, cannot apply for a government job, his children cannot study in state-run professional colleges and institutes.
This means if a woman marries outside the state, she is virtually forced to leave the state and settle elsewhere. Earlier, such women used to completely lose the “permanent resident status”. But still her off springs and spouse don’t get PRC which is not there in case of male.
The right to education was made a fundamental right by Article 21-A and consequently Right to Education Act was passed by Parliament of India in 2010. But due to Article 370 this Act is not applicable in J&K. Under this act there many provisions to improve the standards of education but such is not applicable in J&K. J&K hasn’t enacted its own Act also.
Whole of India is enjoying the benefits of 73rd Amendment Act which gave constitutional status to panchayats and brought the democracy to grassroots level. Under this act panchayats have been given power to implement all the schemes of rural development and has led the empowerment of people in real terms. But this act is not applicable in J&K due to Autonomy of J&K. J&K has its own Panchayats Act which is totally different from 73rd amendment act. Under J&K act panchayats have been left at mercy of executives for their powers as well financial resources. Moreover elections are not regular and are conducted normally at the gap of 20 years.
National Commission for SC, National Commission for ST and National Commission for Backward Classes review the social, economic and employment status of these sections as well review the working of various schemes launched for their welfare. But the jurisdiction of these Commissions does not extend to J&K. So there is no monitoring of implementation of such schemes in J&K.
The political reservation available to Scheduled Tribes is available all over the country. But this reservation is not applicable in J&K.
RTI act was enacted in Centre in 2005 but in J&K it got at par with central act in 2009 only. Similarly there are many acts and schemes which are applicable in other parts of country are not applicable in J&K. It has deprived people of J&K of such benefits.
Power of CBI is derived from The Delhi Special Police Establishment Act of 1946 and thus J&K is outside the purview of CBI. Prevention of Corruption Act of 1988 act was passed to fight against corruption in government agencies and public sector businesses in India. Due to non applicability of these laws J&K tops among corrupt States of Country. J&K haven’t witnessed any conviction of any Politician or top executive in corruption cases like other States. J&K being only 1% of total population of Country receives 10% of annual spending of Govt of India. Where that money has gone? Still J&K is looking for development. No accountability of decision makers due to non applicability of such laws.
The Religious Institution Act of 1988 prohibits religious institutions from allowing their premises for the promotion of political activity. But this law is not applicable in J&K.
J&K has enjoyed much more autonomy than any other state of India. Autonomy means empowerment of people and taking the democracy to the grassroots level. Has this concept of empowerment used by means of this available autonomy till now? Is this the position of devolution of powers in Britain? Those political parties who very recently became part of such comparisons of J&K with British model with their positive silence also have to answer these questions. They need to understand the meaning of devolution of powers in letter and spirit. They need to understand that devolution of powers in democracy means empowerment not deprivation. Can such Autonomy in the name of devolution of powers be allowed to persecute Indian citizens within the territory of India?
(The author is J&K based strategic and political analyst)
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