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Law In Its Labyrinth

Passing the motion was easy, details might be the hurdle

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Law In Its Labyrinth
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What the Farooq government wants is to put the recommendations of the J&K State Autonomy Committee through a mechanism that ensures speedy scrutiny-perhaps through a ministerial-level committee. The posturing on the autonomy recommendations is being done with the assembly elections, due in September 2002, in view. But between now and the polls, political developments in J&K could impact on the manner in which the proposals are considered.

Though the Centre and the state have varying opinions on autonomy, the precise details vis-a-vis the proposals haven't been spelt out. However, despite this, it is possible to arrive at a general assessment with respect to some of the recommendations.

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The most difficult wrangling is likely to be over the following recommendations:

  • All amendments in the J&K Constitution made vide the Constitution of J&K (First Amendment) Act insofar as they relate to superintendence, direction and control of elections to the state legislature and to the state high court be repealed and original provisions of J&K Constitution be restored.
    This could be a non-starter.
    The Centre would find it impossible to concede a separate chapter on fundamental rights to J&K.
  • The proposition that the Election Commission have no role whatsoever in J&K may not get off the drawing board.
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  • The State Autonomy Committee recommendations with respect to the Emergency provisions could well run into a brick wall.
  • The following areas could yield results with which both parties to the issue can live comfortably with:
  • Considering the financial arrangements between the Centre and the state and considering that the 1952 Delhi agreement was not the conclusive word on this matter, there's scope for discussion. It doesn't, however, appear that the role of the Comptroller and Auditor General with respect to J&K can be easily or radically redefined. Unless the matter is discussed, it won't be apparent as to why the Centre should give up ITS claims with respect to provisions of financial emergency vide Article 360.
  • There could be give and take on the policy of deployment of all-India services.
  • Article 356, which relates to provisions in case of failure of constitutional machinery in the state, is a matter of fierce debate even outside the scope of ITS applicability in J&K.
  • The impasse with respect to nomenclature of Head of State and Head of Executive (Sadr-e-Riyasat and Wazir-e-Azam) is a reheated out-take from point 6 of the Kashmir Accord of 1975 which, noting the lack of agreement on this point, remitted the matter to the principals. Does nomenclature really matter? Remember that Narasimha Rao had taken a very lenient view on this.
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  • On the matter of other powers to the state, it would be pertinent to point out paragraph 4 of the 1975 accord: "With a view to assuring freedom to the State of J&K to have ITS own legislation on matters like welfare measures, cultural matters, social security, personal law and procedural laws, in a manner suited to the special conditions in the state, it's agreed that the state government can review the laws made by Parliament or extended to the State after 1953 on any matter relatable to the Concurrent List and may decide which of them, in ITS opinion, needs amendment or repeal...." How many re-appraisals under this clause have actually been carried out by J&K?

    It's another matter that around 250 articles apply to J&K and some of them may not be the most relevant. For example, provisions relating to maritime laws and lighthouses. There are many others. A process of rationalisation is always possible. But feasibility is another matter.

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