Unlike many political actors in Jammu and Kashmir, my work is not based on hearsay. So here is my response to all those, including jingoistic media persons, who assume that the pre-1953 position is impractical and completely nullifies the jurisdiction of the Supreme Court of India over Jammu and Kashmir. The achievable solutions are relegated to the background when federal countries emphasise centralisation as opposed to decentralisation.
I emphasise that prior to 1953, the Indian Supreme Court’s arbitrating jurisdiction to the state extended in case of disputes between the federal and state governments, or between Jammu and Kashmir and another state of the Indian Union. However, the purview of the Indian Supreme Court to the state did not extend as the ultimate arbitrator in all civil and criminal cases before Jammu and Kashmir courts.
Delhi Accord of 1952
The negotiations in June and July 1952 between the delegations of the Jammu and Kashmir state government and the Indian government resulted in the Delhi Accord. Sheikh Mohammad Abdullah and a minister of his cabinet, Mirza Afzal Beg, led the Jammu and Kashmir delegation while Nehru led the Indian government. The accord maintained the fully autonomous status of Jammu and Kashmir. In a public speech made on 11 August, Abdullah earnestly declared:
“This briefly is the position which the Constitution of India has accorded to our State. I would like to make it clear that any suggestions of altering this basis of our relationship with India arbitrarily would only constitute a breach of the letter and spirit of the Constitution. It may invite serious consequences for our harmonious association of our state with India. The formula evolved with the agreement of the two governments remains as valid today as it was when the Constitution was framed and reasons advanced to have this changed seem completely devoid of substance. In arriving at this arrangement, the main consideration before our government was to secure a position for the state, which would be consistent with the requirements of maximum autonomy for the local organs of state power, which are the ultimate source of authority in the state while discharging obligations as a unit of the Federation” (Soz 1995: 128).
At the talks held between the representatives of the Jammu and Kashmir state and the Indian governments, the Kashmiri delegation relented on just one issue. It conceded the extension of the Indian Supreme Court’s arbitrating jurisdiction to the state in case of disputes between the federal government and the state government, or between Jammu and Kashmir and another state of the Indian Union.
However, the delegation shrewdly disallowed an extension of the Indian Supreme Court’s purview to the state as the ultimate arbitrator in all civil and criminal cases before Jammu and Kashmir courts. It was also careful to prevent the financial and fiscal integration of the state with the Indian Union. The representatives of the Jammu and Kashmir government ruled out any modifications to their land reform programme, which had dispossessed the feudal class without any right to compensation. It was also agreed that as opposed to the other units in the Union, the residual powers of legislation would be vested in the state assembly instead of in the centre.
Nevertheless, this was an ephemeral victory. It became increasingly clear, over the years, that the autonomy issue remained unresolved and anti-autonomy factions in Jammu and Ladakh did not lose their political clout.
Sheikh Mohammad Abdullah tried to defuse the complicated situation in 1953 by proposing a plan for devolution of authority to the provinces within the state through the Constituent Assembly’s basic principles committee. According to this plan, the Kashmir Valley and Jammu regions would be entitled to elected assemblies and separate councils of ministers with authority to debate and legislate on certain affairs of local and regional importance.
This multi-pronged devolution was intended to maintain the autonomy of Jammu and Kashmir while mollifying regional and sectarian opposition in the Jammu and Ladakh regions (Bose 2003: 63). However, the sectarian conflict in Jammu and Ladakh, fuelled by right-wing Indian nationalist elements, could not be appeased with anything short of the overthrow of the Sheikh Mohammad Abdullah’s regime.
From the 1960s, militant groups in the Jammu province have advocated and supported the secession of the province from the Muslim-dominated Kashmir Valley, which is a politically unwise demand that negates the social, religious, and cultural complexities of the Jammu province.
If this demand were fulfilled, the three predominantly Muslim districts — Doda, Rajouri and Poonch — of Jammu’s six districts would rather cast their lot with the Muslims of Kashmir valley than aligning themselves with the Hindus of Jammu, in keeping with the logic of the partition of India.
The writer is the author of Fiction of Nationality in an Era of Transnationalism, Islam, Women, and Violence in Kashmir, The Life of a Kashmiri Woman, and the editor of The Parchment of Kashmir. She can be reached at [email protected]