Srinagar
October, 2008
Jammu & Kashmir:
The Self-Rule Framework for Resolution
Contents:
Preface
Executive Summary
Chapter I: The Overall Context of Resolution:
i) International: Globalisation
ii) National: Democracy & Conflict
iii) Regional: Resistance to Representation
Chapter II: Contours of Resolution:
i) Demilitarisation
ii) Challenges
Chapter III: Framework for Resolution: Self-Rule
i) New political superstructure
ii) Economic Integration
iii) Constitutional Restructuring
Main Proposals
PREFACE
The Peoples Democratic Party prepares and offers this working paper on J&K as an act of hope. The hope lies in the belief that if the decision-makers and responsible political parties discern the categorical imperatives that have impelled this formulation, realize its intent and motive and examine its contents on merits, objectively and realistically, and not on partisan considerations or with chauvinistic mind-set, it will be possible to forge a consensus on the way forward.
The Peoples Democratic Party is not presenting a solution; nor does it pretend to have one. Indeed, it is our belief that roadmaps prejudge the issue; readymade solutions make the problem a distorted image of what it actually is; and models make a mockery of specificity of the issue. As such, what we have attempted in this document is an internally consistent framework and indicative direction for resolution. We have tried to contextualise the issue at various levels and drawn the contours of a process for building sustainable peace in the State and the region. The essence of this document lies in trying to suggest a creative framework for resolution of the issue without compromising the sovereignty of the two nation states involved.
We are convinced that various proposals and measures, as fleshed out in this document, address both the internal and the external dimensions of the problem in, and about Jammu and Kashmir, in a manner that is realistic and practical. Our effort has been to root these in the ideals of justice and empowerment for all the people of the State. We see our recommendations, as catalysts for change and instruments for fulfilling the aspirations of all the peoples of J&K, and regions and sub-regions of the State.
We have not looked for solutions in the past, but we have made an effort find a way in the future. A return to the past may not be possible - indeed, if may not even be desirable. The past offers no hope. Our party recognises that we are living through a period where definitions of cultures, societies, sovereignty, and nationality are changing very rapidly and radically. All these issues have gone through a large number of transformations and sometimes, dramatic shifts. The world has undergone a change and we have to be a part of that changed system.
EXECUTIVE SUMMARY
1. The J&K issue cannot be resolved on the basis of exclusively intra-state level initiatives. It requires a combination of intra-state measures with inter-state and supra-state measures. This approach, which is underlying the concept of self-rule, is a practical way that would eliminate the sources of ethno-territorial conflicts, entrenched in the traditional notions of sovereignty, self-determination, national and ethnic borders.
2. Self-rule is a formulation that will integrate the region without disturbing the extant sovereign authority over delimited territorial space. It doesn’t impair the significance of the line of control as territorial divisions but negates its acquired and imputed manifestations of state competition for power, prestige, or an imagined historical identity. It is a way of "sharing sovereignty", without need or commitment to political merging. It is based on the creation of innovative international institutional arrangements that have a political, economic and security character. Self-rule encompasses the society, the state, and the economy. Self-rule, being a trans-border concept, has a pan-Kashmir dimension but at the same time seeks to regionalise power across J&K.
3. Self-Rule as a political philosophy is being articulated around the conception of federalism and confederation that allow for sharing of power between two levels of government, for the sharing of sovereignty in a coordinated but not subordinated to one another, each exercising supreme sovereignty in its constitutional prerogatives. The comprehensive formulation of self-rule has three subcomponents:
i. A new political superstructure that integrates the region and empowers sub-regions
ii. A phased economic integration that transcends borders
iii. Constitutional restructuring that ensures sharing of sovereignty without comprising political sovereignty of either nation state.
New political superstructure:
4. The centrepiece of the governance structure under self-rule is the cross border institution of Regional Council of Greater Jammu and Kashmir. The Regional Council of Greater Jammu and Kashmir will replace the existing Upper House of state assembly, and will be a kind of a regional senate. Members of the Regional Council will be from J&K as well as from Pakistan administered Kashmir. At present the state assembly of J&K holds 20 seats for representatives from across the line of control. These will be given up and replaced by the same number of seats in the Regional Council of Greater Jammu and Kashmir. This will serve as a major cross-border institution, which will ensure long-term coordination of matters and interest relating to the state.
5. Moreover, such an institutional structure will provide a framework within which certain matters between the two parts of the State and their respective mainland, that need to be sorted out to infuse in people a sense of empowerment and a feeling of belonging. This will require devising an improved constitutional, political and economic relationship between the two parts of the State and their respective main lands.
6. In order to empower various sub-regions within the J&K state, a tier of sub-regional councils, will be added to the domestic legislative structure. While the national Parliament will have representations to the sovereign, the state assembly will continue to be a sub-national institution, the sub-regional councils will complete representative character of governance by bringing in the territorial representation in the state.
Economic Integration:
7. A critical element of self-rule is the economic integration across the line of control. This integration can be pursued in different degrees, deepening the process as we go along and as the system and society adapts to change. The process can be started by declaring the intention to establish common economic space and sign an agreement with a roadmap which envisages:
i. Establishing a common economic space;
ii. Instituting a dual currency system
iii. Coordinating economic policy, harmonization economic legislation and synergising regulations
8. The process of economic integration of the two parts of Jammu and Kashmir can start with the easiest form of economic integration, a Preferential Trade Agreement. In the PTA the two countries, India and Pakistan would offer tariff reductions, or eliminations confined to the geographical boundaries of “Greater Jammu and Kashmir” and restrict it to some product categories. Stage II would be to make GJAK a regional free trade area, with no tariffs or barriers between with GJAK, while maintaining their own external tariff on imports from the rest of the world, including India and Pakistan. GJAK will set a common external tariff on imports from India and Pakistan.
9. Further, instead of looking for a monetary union, a new system of “Dual Currency” will be created, where the Indian and Pakistani rupees are both made legitimate legal tenders in the geographical areas of GJAK. A better description of this system is a “co-circulation of two currencies” in J&K. It is being proposed that Indian and Pakistani rupees should be the medium of exchange in J&K. To be more precise, it means, allowing circulation of the Pakistani rupee in the Indian part of J&K currency and circulation of Indian rupee in the Pakistan administered Kashmir. This has to be done if we want cross the Line of control trade to flourish.
10. Our vision is to move towards an economic union, which will maintain free trade in goods, and services, set common external tariffs, allow the free mobility of capital and labour, and will also relegate some fiscal responsibilities to a supra-national agency.
11. Consistent with our legislative design, the economic integration will be deepened through sub-regional integration; that is formation of different sub-regional groups. Appearance of different sub-regional projects can generate multi-speed integration. It needs to be understood that GJAK is being proposed as a regional organisation to facilitate political cooperation as well as promote cooperation between India and Pakistan, and regaining Kashmir’s place at the heart of Central Asia.
Constitutional Restructuring:
12. Self-rule cannot exist without adequate constitutional safeguards. As the Constitutional position stands today, Article 356, undermines the core of Self-rule and has to be made non-applicable to J&K. In a similar vein, Article 249, applied to the State in amended form, should be rolled back so that the Parliament cannot exercise legislative jurisdiction over a matter that, otherwise, falls under the State jurisdiction.
13. Sixth Amendment of the Constitution of the State that undermines its original scheme of a comprehensive and accountable executive (inclusive of the Head of the State) a critical component of Self-rule, will have to be repealed. Prior to this amendment, the State Legislature elected Sadar-e-Riyasat, the head of the State.
14. The proviso, limiting the powers of State Legislature, has been added to Article 368, which deals with the powers of the Parliament to amend the Constitution of India and not the power of State Legislature to amend its own Constitution. The proviso is, therefore, totally and grossly out of place and ultra vires the constitutional scheme. The State Legislature’s constitutional power of amendment is the core of empowerment or Self-rule of the State and this cannot be destroyed by an order passed under Article 370. All India Service Act, 1951 and Article 312 be rolled back and the local human resources are provided clear and unhindered opportunity to develop their full potential and it is trusted to manage the affairs of the State.
15. It is a part of the design of self-rule that Head of the State be elected from the regions of Jammu and Kashmir by rotation. This shall give to the people of all the regions an equal and equitable sense and feeling of empowerment and shall strengthen their bonds.
Chapter I
The Overall Context of Resolution
International Context: Globalisation
1. The world of the early twenty-first century displays three striking patterns. Increasing globalisation, whether defined as economic integration, or more broadly, to include trans-border politics and cultural exchange, appears to reduce the importance of conventional territorial boundaries created by nation states.
2. Integration implies as its end point an elimination of the significance of such boundaries for flows of goods, capital, and people. At the same time, citizens’ territorial attachments to their home regions and countries have shown few signs of weakening. Territory remains a powerful means for the mobilization of populations. That power lies at the heart of the third pattern: the persistence of violent conflicts fought over territorial stakes.
3. Territorial disputes continue to be the most common source of conflict between states, and territory has increasingly become the most frequent reason for violent conflict within states. Territorial boundaries may be less important as a barrier to the movement of capital, people, and goods, but control of these borders and the territory that they encompass often remains a central goal for nation states and citizens.
4. In many ways, globalisation � particularly global economic integration � has been eroding or “hollowing out” the role of the nation-state as governance has moved to global and regional international institutions and devolved to sub-national units.
5. Finally, militarised conflict also has undergone re-examination as the Cold War and its “long peace” among the great powers ended. Rather than witnessing a resumption of great power rivalry and war, which had been predicted by some, a very different pattern has emerged. War between states has continued its decades-long decline while war within states has significantly increased.
6. As such, globalisation has posed a unique and historically unprecedented challenge to the “classic” territorial state. It has managed to disengage, if not separate, sovereignty from territoriality. In the contemporary era of state-defined territoriality, the claim of many juridical states to exercise actual territorial control within clearly delimited boundaries has also been challenged. This has introduced fluidity in the territoriality and sovereignty relationship.
7. Increasingly, there is sovereignty is being subsumed into territorial governance. In this framework, the two principal dimensions of territorial governance are border delimitation and jurisdictional congruence. Border delimitation captures the means by which political units separate themselves from other units, means that can in turn be characterized by more or less precision and permanence. Jurisdictional congruence measures the degree to which exclusive political authority across policy domains coincides with those boundaries. In this there is a considerable variation that is possible and a wide range of possibilities can coexist.
8. Jurisdictional congruence � exclusive political control across policy realms within the delimited boundaries can be used to find a practical solution to all such conflicts that confront us today. There is an identity and political space that can be preserved while the decision space can be shared.
9. Since 1945, and particularly since 1980, the clash of national policy jurisdictions has grown as globalisation has led the more powerful states to extend their norms and practices to other parts of the world that are now more closely integrated with one another. Policies that used to lie well “behind the border” have been placed on the international agenda.
10. Among economic equals that share similar values and policies, regimes of mutual recognition or policy harmonization are typically negotiated: the European Union is a principal example of this strategy for dealing with territorial limits and jurisdictional conflict. Regional and international institutions are also deployed at the global level to reduce conflict.
11. Globalisation also reduces the importance of territory as a tangible stake in conflict between states. Even as it reduces the importance of land it tends to increase the importance of certain tradable resources that are linked to territory; be this water, gas, oil et al. Further, globalisation may also provide incentives and instruments for resolving territorial conflict. Incorporating the links between globalisation and territorial conflict may force the adaptation of conventional instruments of conflict resolution. Perhaps the most important hypothesis that emerges regarding globalisation and the resolution of territorial disputes between states lies in the economic incentives for settled boundaries provided by economic integration. The opportunity costs of trade and investment foregone become more apparent as economic exchange burgeons at the global level. Globalisation creates strong incentives for porous national boundaries leading to less conflict between states.
12. Along with the end of political bi-polarity, an equally important set of factors has been the pressures and opportunities of globalisation. Technological innovations in communication and transportation, and in particular, the movement of capital across borders, have circumvented or eroded traditional state sovereignty not only in the conduct of international finance and trade, but increasingly, in their own domestic affairs. This is a crucial fact that will have to be borne in mind for any future dispensation that we might conceive for Jammu and Kashmir.
13. The vacuum left behind after the Cold War, coupled with the vagaries of globalisation has created serious external strains on the traditional nation-state apparatus, particularly in the developing world. Many developing states that were already weakened or failing due to a variety of internal factors will be under greater pressure now. All this will lead to newer and more relevant definitions of sovereignty.
14. Indeed, the seeds of a solution lie in using the logic of this change that is spearheaded by globalisation to evolve a framework for new political dispensation in Jammu and Kashmir. This will resolve the issue on a long-term bias.
National Context: Democracy and Conflict
15. The growth of conflicts within India has coincided with the de-institutionalisation of the Indian state. Both the normative and organisational pillars of post-independence India � secularism, socialism and democracy � have undergone some radical redefining and changes. The three were operating in tandem, one supporting and complementing the other. The three, individually and collectively, were the ideological underpinning of Indian nationalism.
16. All these three have weakened. Secularism is has been redefined. Socialism has been abandoned. The character of democracy, intensive as it may be, especially from the stand point of J&K, has been altered. More than democracy, for most of the time it has operated as democratic authoritarianism for the state of J&K. Nationalism and Indian nation, which was a composite of these three ideological pillars, also did undergo a change, necessarily. We are in that transition phase where nationalism is being redefined.
17. As a result a major challenge has been posed to the structure of nationhood inherited from the nationalist struggle and consolidated over the early decades of independent India. New forces appeared on the political horizon leading to a redrawing of the cultural boundaries of the nation. And a result, a change in the concept of Nationalism.
18. These new forces are represented by the emergence of the return of the repressed discourses of caste and community, and the eruption of `sub-national' assertions. Simultaneously occurred a political churning leading to the growth of the Hindu right. As a consequence the terms of public discourse were refashioned, even turned upside down. Secular nationalism hence came under severe strain and the Hindu communal or nationalist discourse gained ground in the void created by the retreat of secular nationalism.
19. These developments point to a certain kinship between the hegemonic secular nationalist discourse and the resurgence of the right. As such it was a political transformation not rooted in changing social and cultural consciousness. It is, however, true that whenever under strain nationalism in India revealed Hindu colours. In fact, Indian nationalism always betrayed an undercurrent of Hindu religious sensibility, which has adversely affected its secular character.
20. This change, which had and continues to have a major impact on the way in which political discourse and dialogue is conducted in J&K, points more to the weaknesses of secular practice, rather than the concept of secularism. The social and political space that the Hindu right seized was created partly by the retreat of secularism due to the weaknesses of its practice. The place of minorities and Dalits in the nation is an important factor in the fortunes of secular nationalism. As such the very project of Indian nationalism was an impossible one, precisely because it was impossible to have one common history.
21. The different histories of communities and intercommunity relations that provided the ingredients for different imaginations of selfhood led to different articulations of nationalism in Hindus and Muslims. It is not that there is no shared cultural ground between Hindus and Muslims but that it did not comprise the entire arena of inter community relations. That it was so is in the least surprising, as it would never be the case in any intercommunity relations. Today, the biggest challenge facing the nation is how to conduct dialogue with the masses who had already been constituted as Hindus, Muslims and, Christians. How to design an institutional framework that provides enough space yet hold the nation together. The success of secular nationalism would partly depend upon the answer to this question.
22. The same is true of the regionalism. The rise of regionalism in India, has meant an improved articulation of political, social and economic aspirations of the sub-nations, like J&K. The illegitimate symbiotic relationship with the state and its repressive measures and civil bureaucracy, which had imparted an authoritarian stand to governance of the Centre has been substantially broken in many parts of the country. As such what may have been acceptable for the larger system to create an enclave of federalism within a unitary system, and combine the advantages of a loose federation with those of a centralized system, without impairing its functioning, seems to be possible today. The situation has changed with regional parties gaining prominence and the Centre being ruled by a coalition of parties. Even though it is the same constitution, the spirit is far more federal today and the autonomy issue may not suffer from the same ills as it did earlier. A fact nobody could have foreseen is this development of regional aspirations and regional forces coming to the fore. Symbolizing regional aspirations while maintaining commitment to the national integrity or unity of the nation are the states of Andhra Pradesh, West Bengal, Tamil-Nadu, and North-east.
Jammu and Kashmir: From resistance to representation
23. It is now a well-accepted fact that the peace process in the sub-continent is irreversible. It may move in fits and starts, but the direction is clear. There can be no denying the fact that since 2003, political initiatives � Line of control, domestic, bilateral and international � have all been moving in a positive direction, albeit at a slow pace. There are a few remarkable features about this peace process, which have a bearing on its sustainability, that were not in evidence in the earlier initiatives. First, is that it is for the first time in the history that J&K state and its government has initiated, catalysed and driven the peace process. From being a passive recipient of bilateral initiatives, the state, immediately after the election of 2002, took centre-stage and drove the peace process at the bilateral level. In other words, for the first time in the troubled history of our state, the PDP-led State Government was not in an adversarial role. This has stopped the marginalisation of moderates in the political spectrum of Kashmir.
24. In doing so, the government revived social collaboration, political reconciliation, and democratic participation, through innovations and indeed historic steps. Be it the opening of the Srinagar- Muzzaffarabad Road or the Sialkot - Rawlakote road, or the allowing of travel on permit and not passport basis, it all added up to a collective political engagement and consequent reduction in the structural and individual alienation. These were not events but processes that catalysed the peace process.
25. This reversal of roles � the state government driving these steps and the Union government endorsing it ---- has meant a much wider grounds-feel of peace process in the state, which has been seen, felt and heard. The net result has been that there have been local stake in the peace process. It has generated consensus among principal stakeholders -- the people of Jammu and Kashmir -- on the resolution of the “Kashmir issue”. What this has done is to create a new basis of legitimacy by the only and ultimate source of authority, namely, the people itself.
26. The earlier rounds of bilateral diplomacy over the years, many as these were, aimed at normalising relations had either been futile or resulted in failure. Lately, several international actors have played a significant role in prompting a new round of dialogue. However, given the previous failed attempts at resolution and Delhi’s continued resistance to international intervention in what it considers a bilateral issue, there was some pessimism about the role of further dialogue. The challenge therefore was in not only sustaining this new round of dialogue but also ensuring that it is insulated from the day-to-day setbacks that have often derailed the process in the past. A lot has been achieved here in a relatively small period of time.
27. The major breakthrough was to engage the civil society of J&K in the process. The cooperation between the civil state and the state increased and resolution of the problem is no longer only the responsibility of the state � be it the centre or the state. The involvement of the principal stakeholders � people was gaining ground. It is this that was the greatest achievement and it should not be let to slip away.
28. We are now at the threshold of our third step: empowering the legitimate democratic institutions of the state to the extent that they are not manipulated by anyone. For instance, if the current or future legislature of the state that has been democratically elected makes recommendations that are within the purview of the constitution of the state and the country, it is obligatory on the part of the Centre to seriously consider the proposals.
29. To supplement the peace process, make it sustainable, and catalyse its pace, the PDP-led Government, in consultation with the Government of India, decided to proceed with economic reconstruction in a manner that is acceptable to all. The basic premise is of the new strategy is peace through economic reconstruction. The reconstruction of the J&K economy has been designed in a manner that supports the transition from conflict to peace through the rebuilding of the economic framework.
Chapter II
The Contours of Resolution
Setting the stage for Resolution: Demilitarisation
30. Prior to conceiving and debating the issue of resolution and outlining its contours, it is imperative we create an enabling environment for it. This would be the phase where mental, material and motivational reconciliation takes place on both sides. The Indian nation-state must make up its mind that the only way to forward is the non-military way. There is no room for armed interventions in J&K. If there is one lesson that has come through in the last 15 years of militancy it is that the gun is not solution � be it in the hands of the army or the militants.
31. If this is the basic premise, then a decisive move has to be made to reduce not only the physical presence of the armed forces in the state but also their influence in the decision making at a political and administrative level. Even in the sphere of operational matters of security, the armed forces should be a part of the J&K police hierarchy rather than being a parallel institution of power. This entire change is what we refer to under the rubric of “demilitarisation”.
32. To be sure, demilitarisation is first about the mind-set and then about the withdrawal of troops in the state. It has an operational, and a symbolic aspect to it, besides having a strategic objective. The simple fact of withdrawal is indicative of the preconditions for resolution and resolution-oriented measures. It symbolises a conceptual change in governance by the government, a growing leadership confidence in the state, and a politically courageous pro-active leadership at the national level.
33. Further, the symbolism of demilitarisation is that the balance of power on governing, which has since the elections of 2002, titled in favour of civil institutions, should now lead to a situation where the democratic and civil society institutions are now given full charge of the situation to consolidate the peace process. At this crucial juncture, when public confidence is waning in the whole process, only a resolute effort propelled by political wisdom and vision could restore it.
34. It also needs to be emphasized that not only is a complete withdrawal of troops a pragmatic need, it is also a strategic objective. It needs to be understood that a withdrawal of the armed forces from all civilian areas, will create and enhance the stakes of the people in the peace process.
35. The process of demilitarisation will then create pockets of peace along with it and there can be no better way of generating an organic movement of peace than this. As such, the term demilitarisation refers to a nuanced process that not only has an impact on the ground at the Line of controlal, and state level; it also has national and international ramifications. The former strengthens our claims and the latter our case.
36. And above all, the move towards demilitarisation has to be seen, and made to be seen, in the context of the larger paradigm of resolution rather than the probability of increased violence in the state. This is based on ground realities.
37. The enabling legislative part of demilitarisation relates to Armed Forces Special Powers Act (AFSPA). For almost two decades AFSPA has been in force in the State. There is no justification for this to operate any further and must be repealed to enable normalisation to take root. Its operation and enforceability have no bearing to the level, scale and intensity of violence in the state. The most important fall out of this will be that it will empower and facilitate the State Government in assuming its full role in revitalizing and pushing forward the control of civil society over the governance of the state.
Jammu & Kashmir Issue: Challenges
38. There is no denying the fact that a lot of complications in the issue exist with the intra-state relationships between Delhi and Srinagar and between Islamabad and Muzaffarabad[1]. These intra-state relationships are further compounded by the emergence of a host of political parties and militant groups on all sides of the conflict. Yet another factor in the mix is the Kashmiri diaspora, whose involvement has witnessed noticeable ascendancy in the post-Cold War period.
39. In all these discourses � Indian, Pakistani, international � the only viewpoint that has not been adequately highlighted is that of the people of Jammu and Kashmir. There, of course, is the argument for the inclusion of the people of Jammu and Kashmir into the resolution process to ensure that India and Pakistan do not walk away from the negotiating table too easily in bilateral talks. The problem is that the heterogeneity of views from within Jammu and Kashmir have become an easy excuse for their exclusion. As such there is need for a well-articulated set of views to emerge from the state that can form the basis of bilateral and international dialogue. We are making an effort to fill this most critical gap.
40. Conceptually, the challenge in J&K is to integrate the region without disturbing the extant sovereign authority over delimited territorial space. There is no need to negate the significance of the line of control as territorial divisions but it is imperative to negate its acquired and imputed manifestations of state competition for power, prestige, or an imagined historical identity. The idea is to retain the former and change the latter. Therein lies the key to the solution of J&K dispute. And one way to do so, is through economic integration.
41. To put the issue in analytical terms, we have to find ways and means of “sharing sovereignty". This makes it “more than an alliance" (where "alliance" means that a group of nations forms a selective agreement without the need of giving up relevant pieces of sovereignty). Yet there is no need or commitment to develop a common plan of political merging.
42. The operational challenge in J&K is to establish innovative international institutional arrangements that have a political, economic and security character. The two countries have to resolve the very difficult problem of “domestic” integration within a split international political and economic structure. Our basic premise is that the search for solution to the issue of Jammu & Kashmir is a search for an inter-nation state institutional arrangement that preserves sovereignty of the two nation-states but still has a supranational basis. This is possible by giving the institutional arrangement an economic, rather than a political, basis. To redefine the concept, in addition to being the territorial limits, a border of an line of control is a barrier to people, commodities and capital. The idea is to remove the barrier � or to put it more accurately � let markets override these boundaries.
43. This approach of according primacy to the economic over political, in some ways, turns the current paradigm, on its head. Due to historical reasons the entire state of J&K remains an important political, though not an economic, partner of both India and Pakistan. This fact can be attributed mostly to the heritage of partition. Even as political significance is paramount for both, economic links between India and J&K and Pakistan and POK are limited. The political significance of two parts of Kashmir to their respective mainlands is disproportionate to their economic significance.
44. Our basic premise is that the time has come to work out some form of integration and move forward. Even though the integration design may appears to be constitutionally and legally incomplete and politically premature, a start has to be made simply because the cost of not doing it will be much higher than the cost of implementing it.
45. It is not necessary to work out a full architecture of integration. It has to start with a some critical steps. For instance, the euro nations are being forced to achieve more and more integration in the future because the single currency management requires a growing degree of political and economic harmonization. At the same time, such a "convergence by necessity" does not imply that a real "Political Union" will be automatically born.
46. In view of the past history, the stated positions and the emotional surcharge a one-point-one-time solution for resolution of the conflict is a near impossibility. What is required is a sequence of measures, which would resolve the situation. These initiatives need to be less dramatic and inciteful than a plebiscite which would inevitably carry a huge baggage of rhetoric and arouse all the polemical furies. What is needed is a practical, step-by-step extrication of the state from current impasse towards a resolution.
47. In this context, it is proposed to move step-by-step, taking the path of least resistance and build confidences as we go along. Each move, small or insignificant as it may be, will have to be a part of a larger resolution design with a broad end-result in view. Depending on the nature of successes, the course can be modified and calibrated depending on the emerging political situation.
48. At a practical level, it should be obvious that the J&K issue has not been and cannot be solved on the basis of the exclusively on an intra-state level (i.e within India or within Pakistan). It requires a combination of intra-state measures (across India and Pakistan) with inter-state and supra-state (international) measures. Thus, it would seem prudent to advocate a three-step approach to resolution of the issue � introducing fundamental principles of a solution, which would reduce uncertainty and provide a ‘road map’; creating a dual power-sharing arrangement, which would be based on equal relationships between people of J&K across the border at both sub-state and national levels; and combining this power-sharing arrangement with regional and national integration.
49. It needs to be appreciated that political positions range from self-determination and sovereignty, secession and territorial integrity, partition and co-existence, and also democratic methods of conflict resolution and management based on respect of individual and group rights.
50. It would be useful to mark the material difference between the stands of India and Pakistan vis-�-vis the State of Jammu and Kashmir. India claims that the entire State is a part of Indian Territory. Its constitution (Article 1) as well as the Constitution of Jammu and Kashmir (Section 3) provides so. Its claim is based on the Instrument of Accession and the ratification of accession by the Constituent Assembly of the State. On the other hand, Pakistan does not claim that the State, or even that of the State which is under its control, is a part of Pakistan. It is so because there is no treaty or instrument executed between the State and Pakistan that could support any such claim of Pakistan. Pakistan’s Constitution, therefore, does not include the State or any part thereof in its territories (Article 1 of the Constitution of Pakistan). Pakistan’s only limited claim is based on its alleged right to administer the part of the State under its control by virtue of UNCIP resolution. However, there are provisions in the Constitution of Pakistan which make it mandatory to support the ideology of the State’s accession with Pakistan.
51. Briefly stated, India’s claim is based on the assertion and recognition of a fact, whereas Pakistan’s traditional claim was based on the declaration and pursuit of a desire. The leaders and diplomats of Pakistan, no longer advance the claim that Pakistan expects, as a matter of right, that State should accede to it. They have traditionally taken the ground that let the people of the State decide who they want to go with. If their decision turns out to be against Pakistan, so be it.
52. However, there is a need to meet the moral argument advocating ascertainment of people’s will. The question is, how this “will” can be ascertained. The following methods commend for consideration:
a. A plebiscite held simultaneously throughout the entire State of Jammu and Kashmir.
b. A plebiscite held in stages in different specified regions of the State.
c. An election held under international supervision in both parts of the State to choose representatives for holding negotiations regarding the future of the State with both India and Pakistan.
d. An election held in both parts of the State to choose representatives who would then hold negotiations with their own country.
e. The framing of a broad frame-work on the future of the two parts of the State to be formulated by India and Pakistan.
f. The elected representatives of each part of the State would then hold negotiations with their respective country for a resolution framework within the given parameters.
1. The broad spectrum of public opinion, gathered from the elected and un-elected representatives of different sections of society, in each part of the State, could be forged into a consensus within their own respective country. The two formulations emerging from the two parts could then be discussed between India and Pakistan for a workable settlement.
2. So far as options (a) and (b) are concerned, they will not be acceptable primarily because they are based on the plea of religious divide and two-nation theory. India, being a secular country with diverse religious communities, can ill-afford to accept another partition based on religion. Even Pakistan recognizes the fact that UN resolutions on this subject are not mandatory and are outdated. Such solutions may jeopardize the strategic interests of both the countries in the region and a change borders is not acceptable to either country. Option (c) also does not appear to be practicable. There are too many imponderables involved in the game. Besides, this may not lead to an equitable or just conclusion � much less a consensus � because members of a particular religious community or region may dominate the outcome of the negotiations. Option (d) would fail in case of our part of the State, where the three regions Jammu, Kashmir and Ladakh, may each demand irreconcilable goals in a formal negotiating process. Option (e) is more practical and has a precedent in Ireland. But Irish situation was not as diverse and region � centric as is the case in our part of the State. In our view option (f) is the most practicable and least complicated way out.
3. Our aim is not to discuss the complexities of history and geopolitics, but instead, to shift the focus to more practical policy-oriented discussion of a possible solution to the J&K issue. It is argued that solution of the J&K issue must be built on three essential elements:
a. introduction of clearly defined fundamental principles on which the solution must be based;
b. creation of a proper system of integration between the state across the borders backed by institutional arrangements; and
c. the combining of this arrangement into the framework of Indian and Pakistan polity.
4. Being fully conscious of the shortcomings of exclusive reliance on intra-state solutions, it can be argued that in order to achieve a stable, sustainable and just solution to the J&K issue, we should combine intra-state measures (decentralisation and power-sharing) with inter-state and supra-state measures. This approach, which is underlying the concept of self-rule is the only way that would eliminate the sources of ethno-territorial conflicts, entrenched in the traditional notions of sovereignty, self-determination, national and ethnic borders.
Chapter III
Self-rule: Concept, Design and Operation
5. Self-rule encompasses the society, the state, and the economy. It comprises a nexus of multiple loyalties of an individual as a member of the society, duties and rights of the citizen in a reciprocal political arrangement with the state, and the role of the individual as a producer and consumer in the economy.
6. What sets apart "self-rule" from "autonomy" is the political context in which they are conceived and operate. Self-rule refers to autonomy from the nation-state of India, whereas autonomy connotes relative autonomy from the Government of India. The two are vastly different in substance and style. The change -- from “autonomy” to self-rule” -- means is a fundamental shift in the terrain of political discourse and the existing status of the Kashmir issue.
7. Autonomy refers to empowerment of the Government of Jammu and Kashmir vis-a-vis the Government of India. As such it becomes a part of the centre-state debate in the Indian federal set up. Self-rule on the other hand refers to the empowerment of the people of Jammu and Kashmir, vis-a-vis the nation of India.
8. Further, autonomy is for an institution of governance, self-rule is for a region, or geography. Therefore, while autonomy doesn’t have a territorial element to it, the concept of self-rule has an element of territoriality to it. This is a reasonable compromise between demanding a new state and redefining the existing one. As such, self-rule gets a pan-Kashmir dimension. It is about the Kashmir on either side of the line of control. It is a trans-border concept rather than a local domestic issue which autonomy is.
9. Self-rule seeks to regionalise the concept power, while autonomy seeks to move it across levels of government. This distinction and its operational importance is very significant in the historical context of J&K. The experience has been that most governments formed in the state have been severely compromised as far as legitimacy -- J&K where peoples mandate is often vitiated -- is concerned. Hence, even if the government is empowered that power has never been exercised in a genuine manner.
10. Self-rule has four separate components: autonomy, control, legitimacy and identity. Autonomy refers to the independence a state has in making policy. Control refers to the actual ability of the state to produce the outcomes it desires. Legitimacy refers to its process through which the people in power have reached that position. Identity refers to the capacity of the state to endow people with an overriding sense of who they are as a collective group.
11. The problem in J&K has been that while it has been fairly autonomous, it has been ineffective in bringing about the results it desires. It lacks control. The problem with the pure autonomist viewpoint is that it is confuses autonomy with empowerment. The fact is that autonomy is only a framework, not an empowerment. Empowerment of people comes from having instrumentalities of control and then having the legitimacy to exercise those. And of course, the element of identity puts it all together.
12. Self rule as a political philosophy can be articulated around the conception of federalism and confederation that allow for sharing of power between two levels of government, for the sharing of sovereignty in a coordinated but not subordinated to one another, each exercising supreme sovereignty in its constitutional prerogatives. When Indian Independence Act was passed and the two dominions of India and Pakistan came into being, J&K became an independent country. It is for the reason that J&K fell in the category of fully empowered Indian States. It is this sovereign status of the ruler of the State that is supposed to provide legal foundation to the instrument of Accession with the dominion of India.
13. The relevant provisions of the Instrument of Accession with regard to the status of the State and the retention of its internal sovereignty are as under:
a. “7; nothing in this instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter any discretion to enter into arrangements with the Government of India under any such future constitution.
b. 8; nothing in this instrument affects the continuance of any sovereignty in and over this State, or save as provided by or under this Instrument, the exercise or any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State”.
66. There is credible body of thought, which holds that the State retains the internal sovereignty despite executing the Instrument of Accession. Sovereignty was divided between the Union of India and the State � external or over-arching sovereignty vested in the Union and internal sovereignty remained with the State. The Constituent Assembly of Jammu and Kashmir always maintained that State had retained internal sovereignty. Even the Delhi Agreement of 1952, clearly states the same:
a. “In view of the uniform and consistent stand taken up by the Jammu and Kashmir Constituent Assembly the sovereignty in all matters other than those specified in the Instrument of Accession continues to reside in the State, the government of India agreed that, while the residuary powers of legislature vested in the Centre in respect of all States other than Jammu and Kashmir, in the case of the latter they vested in the State itself”.
67. The Instrument of Accession was given the constitutional formulation by and under Article 370. Article 370 provided that it could be amended or abrogated by the President of India only if so requested by the Constituent Assembly of the State. The Constituent Assembly of the State ratified Accession on 15th of February, 1954 and also resolved that Article 370 should be retained in its present form. Accordingly, Article 370, which was originally supposed to be temporary, became a permanent feature of the Constitution of India and a bridge between the Union and the State. It cannot now be repealed and amended. Assuming, without conceding, that it is repealed, it will have wide ranging consequences.
68. Article I of the Constitution, which declares the State to be a territory of India, has been made applicable to the State only by virtue of Article 370. If Article 370 is repealed, Article I will cease to apply to the State. Thereafter, the only relation between Union and the State will be the Instrument of Accession. That will revive many controversies including the issue on the provisional or conditional nature of the Accession.
69. In its essence, Self-Rule is based on the premise that the constitutional architecture and political institutions of Jammu and Kashmir must be rooted in the cardinal principle that power must, in word and deed, be exercised by the citizens of the State.
70. Self-Rule, therefore, has two dimensions:
a. The scope within which a community or a society can decide and administer its own affairs. This is a question of extent of powers. Every State, by definition, is sovereign. Yet, however, it may be sharing its sovereignty with various political and geographical units of which it may be constituted. There are situations where a state may be exercising over-arching and external sovereignty whereas internal sovereignty may be vested in its constituents. In such a case, the state, commonly known as country, exercises powers over such subjects as defence, security, foreign affairs and communications. These are the powers which ensure the integrity and unity of a State including all its constituents. In this system, all other affairs are left in the charge of constituents, over which they exercise internal sovereignty. Generally speaking, this system is known as federalism.
b. The second dimension of Self-rule relates to the manner in which sovereign power is exercised. If this power is exercised without the will, representation and participatory involvement of people, there is no Self-rule. This dimension is the process and method in which powers of the State and its constituents are exercised.
71. In view of the terms of the Instrument of Accession executed by the Maharaja of the State with the dominion of India and the provisions of Article 370 of the Constitution of India, the Union of India is possessed with the over-arching external sovereignty over our State, whereas internal sovereignty remains vested in the State.
72. Self-rule is aimed at providing the central element for a comprehensive architecture to be devised for the final and strategic settlement of the Kashmir issue. Self-rule will not be a mid-point in a journey or a tactical or evasive prescription. Instead:
a. Self-Rule must also form the basis of relationship between the people of Pakistan Administered Kashmir and Pakistan.
b. Self-rule will entail the rolling back of, and also retention of, various provisions of the Constitution of India made applicable to the State, according to the normative tests that meet the genuine requirements of both the Union and the State.
c. Self-rule cannot exist without adequate constitutional safeguards and necessary political will. It will mandate due co-operation and trust between the State and the Union.
d. Self-rule cannot sustain itself without a fair and realistic degree of self-reliance. It will, therefore, entail a policy and action of responsible, sustainable and universally accessible economic and human development, full mobilization and utilization of the resources of the State and a reliable and substantial fiscal support by the centre for valid reasons and on legitimate equitable grounds.
73. The most tangible results of the self-rule will be first evident in the creation of a particular networks in governance and economic arena, and also, more gradually, in the polity. The main agenda to start with would be economic affirmation -- the power to set up economic and financial institutions as required along with the necessary enabling legislations.
New Political Superstructure:
74. In line with the concept of sharing sovereignty and recognizing sub-regional needs and requirements, there has to be put in place a legislative system and structure. Given the complexity of the notion of representation and the multifunctional nature of modern legislatures, there is an incipient new rationale for an innovative set up. Of course, in our case, the added reason for going in for a multi layered representative system is that regional differences or sensitivities in J&K require more explicit representations, with the second and the third tier representing the constituent territories
75. Towards this end, the Legislative Council will be restructured to form the Regional Council of Greater Jammu and Kashmir. It will be a kind of a regional senate. Members of the Regional Council will be from J&K as well as from Pakistan Administered Kashmir. At present the legislative assembly of J&K holds 25 seats for representatives from Pakistan Administered Kashmir. These could be given up and held as Pakistan Administered Kashmir’s representation in the Regional Council. This will serve as a major cross-border institution, which will ensure long-term coordination of matters and interest relating to the state.
76. Moreover, such an institutional structure will provide a framework, within which certain matters between the two parts of the State and their respective mainlands, which need to be sorted out to infuse in people a sense of empowerment and a feeling of belonging. This will require devising an improved constitutional, political and economic relationship between the two parts of the State and their respective mainlands.
77. The Regional Council of Greater Jammu and Kashmir will have 50 members. The respective state assemblies of J&K and Pakistan Administered Kashmir shall elect 40 members. The remaining 10 members will be nominated, five each, by the Governments of India and Pakistan.
78. The Regional Council of Greater Jammu and Kashmir will be entrusted to ensure that the executive is functioning satisfactorily in all “cross-Line of control” matters and coordinate if there are inter-governmental initiatives especially in relation to matter like the operation of dual currency, creation of common economic space with specific reference to joint management of water resources and creation of a common energy market.
79. Within J&K, there are certain regional issues that have the potential of snowballing into a dangerous situation. Occasionally, voices are raised from Ladakh and Jammu for trifurcation of the State. PDP believes that the unity of the State reflects the essence of our secular culture, and its preservation is of the utmost critical importance, both on principle and for legitimate strategic reasons. Its unity is also in the enlightened self-interest of the people of all the regions and also accords with their wholesome historical character and experience. The reason, however misconceived, offered to justify the nefarious slogan for trifurcation is the alleged discrimination suffered by the people living in the regions of Jammu and Ladakh. It is, therefore, not only imminently desirable but practically mandatory to ensure that all the regions share a sense of equal and equitable empowerment.
80. The promotion of genuine sub-regional political and economic empowerment is certainly one of the crucial components of self-rule. Under the self-rule, institutional mechanisms are provided for that will convert unhealthy latent as well as patent regionalism into effective region building.
81. The three basic requirements for efficient policy towards constructive regionalisation are:
a. Building and strengthening of regional decision-making powers
b. Effective institution-building
c. Creation of economic networks
82. The recognition of sub-regionalization with the aim of improving inter-ethnic and inter-religious relations in the region is of paramount importance in the framework of self-rule. Empowered sub-regionalization, as distinct from administrative and bureaucratic decentralization, will ensure the co-existence of different ethnic, religious and linguistic groups in the region that is otherwise a constant cause of inter-ethnic and inter religious disagreements and tensions.
83. The building of effective structures of sub-regional democracy depends on the development of a strong economic relationship and on the political will to implement it. It would be desirable to find appropriate means of building a social consensus across the regions about the need for decentralization of political structures.
84. This can be done by creation of sub-regional councils as the third tier of the legislative system. While the national Parliament will have representations to the sovereign, the state assembly will continue to be the sub-national institution, the sub-regional councils within J&K will complete the representative character of the governance by bringing the territorial representation within the state. Effectively, J&K will be a regional federation. The federal system of government will mean that powers and responsibilities will be divided between the legislative assembly and the sub-regional councils.
85. All the regions must be brought to the conviction that regionalization is a process that makes a region stronger, not weaker. In addition to these, there are three development motives to promote the role of sub-regional councils.
a. Firstly, a regional structure is the best basis for allocating money (top-down perspective). When it comes to achieving pre-defined goals, a geographical approach is preferable to sectoral policies, which can otherwise get easily lost
b. Secondly, recent experiences show that the regional approach to the promotion of development is much more effective than the national or supra-national one (bottom-up perspective). Regions are a better environment for integrating a variety of particular interventions necessary for executing a development plan as they are closer to the citizens and to the particular characteristics of a certain area. This makes it easier to understand the challenges of the moment.
c. Thirdly, from the sustainable development perspective, regions are in the best position to co-ordinate and manage relevant activities on a horizontal level � with similar structures in other regions and even across borders.
86. In this context, sub-regional council will become the most important instrument for responding to development challenges. In parallel with economic integration in Greater Jammu and Kashmir and the decentralization of development trends, decision-making processes are shifting towards the regional and local levels in order to bring the instruments of regulation closer to the people and to the environment where events occur.
87. The appropriate division of powers between different levels of government can be addressed from an efficiency standpoint using the economics of multi-tier government. However, using the distinction between the allocation, stabilization and redistribution functions of government, stabilization and redistribution functions are best performed at the regional level, while the local function is usually best exercised at more local levels where it can respond to differences in preferences for public goods.
Economic Integration:
88. This comprehensive solution can be accomplished through economic integration and sharing of sovereignty without comprising sovereignty of either nation state. The key lies in institutionalised problem-solving mechanism, which would allow constantly transforming conflicts in a positive, non-violent and imaginative ways.
89. For a variety of reasons it often makes sense for the two parts of Jammu and Kashmir to coordinate their economic policies. Coordination can generate benefits across different segments of the economy. If the two parts of Jammu and Kashmir cooperate and set zero tariffs against each other, then both parts are likely to benefit relative to the case when both countries attempt to secure short-term advantages by setting optimal tariffs. This is just one advantage of cooperation. Benefits will also accrue if labour and capital movements across borders were to be were to liberalized, fiscal, financial sector policies and sectoral resource allocation especially towards agriculture were coordinated. Any such type of an arrangement will result in economic integration.
90. Depending on the political will, economic integration can be pursued in different degrees, deepening the process as we go along and as the system adapts to change. The process can be started by declaring the intention to establish common economic space and sign an agreement with a roadmap which envisages:
i. Establishing common economic space;
ii. Instituting a dual currency system
iii. Coordinated economic policy, harmonization of economic legislation and synergistic regulations
91. The process of economic integration of the two parts of Jammu and Kashmir can start with the weakest form of economic integration � a “Preferential Trade Agreement”. In the PTA the two countries, India and Pakistan would offer tariff reductions, though perhaps not eliminations, confined to the geographical boundaries of “Greater Jammu and Kashmir (GJAK)” and restricted it to some product categories. Higher but non-discriminatory tariffs, would remain in all remaining product categories.
92. Stage II would be to make GJAK a free trade area. It can be called a “Regional Free Trade Area”. Creating a bilateral free trade area will mean an agreement to eliminate tariffs between the two parts of J&K, while maintaining their own external tariff on imports from the rest of the world, including India and Pakistan. Because of the different external tariffs, the Regional Free Trade Area will have to develop elaborate "rules of origin".
93. In stage III, it can be agreed to eliminate tariffs between the two parts of GJAK and set a common external tariff on imports from India and Pakistan. This could be later applied to rest of the world. A customs union avoids the problem of developing complicated rules of origin, but introduces the problem of policy coordination. This can be followed by a common market establishes free trade in goods and services, set common external tariffs and also allows for the free mobility of capital and labour across countries.
94. At this stage, we can do with some innovation. Instead of looking for a monetary union, we may like to have a situation where the Indian and Pakistani rupees are both made legitimate currencies in the geographical areas of GJAK. A better description of this system is a “co-circulation of two currencies” in J&K. It is being proposed that Indian and Pakistani rupees should be the medium of exchange in J&K. To be more precise, it means, allowing circulation of the Pakistani rupee in the Indian part of J&K currency and circulation of Indian rupee in the Pakistani Administered Kashmir.
95. At the moment, circulation of national currencies of India and Pakistan coincides with the territorial frontiers of the two nation states. In other words, there is geography of money. But, to be clear and well informed, circulation of national currencies no longer coincides with the territorial frontiers of nation states. The idea being put forth here is in the realm of deterritorialization of money.
96. This proposition has to be contextualised in the transformation of today’s global monetary environment. The implications of deterritorialization for the survival of national currencies are only beginning to be understood. First, currency competition compels governments to choose from among a limited number of strategies, only one of which involves preservation of traditional territorial money. Second, a good number of national monies will indeed disappear, leading to an increasing population of regional currencies of one kind or another � a distinctly new geography of money. But, third, there is no sure way to predict what that new geography of money will ultimately look like. We have a fairly good idea of the principal factors that are likely to influence state preferences, but many configurations are possible and even probable. It also involves significant issues about the geography of Money. This facet has to be taken in account if we genuinely want cross-border trade to flourish.
97. If all this works well, finally, we can move to an economic union which typically will maintain free trade in goods and services, set common external tariffs, allow the free mobility of capital and labour, and will also relegate some fiscal spending responsibilities to a supra-national agency.
98. In principle, the process of integration includes three key components:
i. Trade component. By trade component we mean in fact trade regime or in practice elimination of trade barriers. It can be preferential trade arrangement.
ii. Regulatory component. This component has two dimensions � shallow and deep. By shallow dimension we mean that partners are solving issues related to trade, while deep integration means in fact that cooperation on regulatory issues goes beyond pure trade issues and concern economic issues
iii. Political component. At the moment this component is one of the most important one. In fact this aspect refers to the problem of striking delicate balance between liberalization at the national level and reaching certain level of supra-nationality in terms of managing different integration schemes. A lot of economic arrangements have to have a distinct political content.
99. The first one can be tentatively called “broad” integration embracing all districts of GAJK. This “broad integration” concept can result in establishing a common economic space. As this is done, a number of agreements can pave road to the closer integration like an Free Trade Zone Agreement. One of the steps towards a FTZ and custom union can be Agreement on the Single Agricultural Market. In fact formation of GK integration’s economic component can start form signing bilateral agreements on economic issues of two types: free trade agreements and agreements on production cooperation. These bilateral agreements can differ from each other in terms of coverage of goods, etc.
100. This logic behind these agreements has to be to re-establish production relations in a new economic environment which had been broken by the partition. At the same time “broad” integration has to have from the very beginning a strong political component (security cooperation, for example). The second tendency can be named sub-regional integration that is formation of different sub-regional groups. Appearance of different sub-regional projects can generate multi-speed integration.
101. It needs to be understood that GJAK is proposed to be formed as a regional organisation to facilitate political cooperation as well as promote cooperation between India and Pakistan, developing a road network linking Central Asia and India. In fact, the regional free trade area of GJAK will be an interesting example in a number of aspects. First, this grouping will not be dominated politically and economically by either India or Pakistan. If anything it will be dominated by market forces and prudent economic policies. In a strategic perspective this grouping of GJAK may become the nucleus of bigger regional arrangement.
102. The GJAK will face challenging geographic and economic circumstances, including the relatively small size of their economies; remoteness from world markets; long-term isolation from global technology and capital flows; heavily dependency on primary production, minerals, and other commodities; dependence on Indo-Pak economy (which would still be the largest market for their exports); and industrial structure from the legacy era that is hardly compatible with an open economy.
103. That’s why this organization has to be seen as a tool to create sub-regional market, which will facilitate overcoming their relative isolation from world markets, rapid industrialization and in the end contributes to sustained economic growth. These arrangements are in fact meant to intensify economic cooperation while the actual level of internal economic links trade is rather small.
104. It is important to recognize that though to start with economic integration can be pursued either through an intergovernmental approach, for it to contribute to the political resolution of the problem, it has to graduate from inter-governmentalism to super-nationalism, i.e., to economic integration with a supranational approach. Supra-nationalism implies that India and Pakistan agree to exercise some of their sovereignty jointly. Operationally, this means that a law passed at the regional level in those areas where the region is granted competence prevails over national legislation and is binding directly on both countries and citizens of those states. Only if this is done can economic integration through supra-nationalism be a stepping stone to a federal political structure or confederation or a more diversified political outcome in which sovereignty and power is shared at various levels and interacts in complex ways.
105. A key issue with supranational arrangements is ensuring the democratic participation of stake-holders, the transparency of supranational decision-making and the accountability of regional institutions. In their absence, the shift of sovereignty to supranational bodies may weaken democratic control and strengthen the political influence of groups able to organize effectively at the regional level. It is here that the Regional Council of Greater Jammu & Kashmir will play a critical coordinating role.
106. In addition to regional trade integration, we need to look at many forms of regional cooperation can take place around specific projects or thematic issues. Such sectoral cooperation can have advantages such as: decreasing duplication of functions in the two sub-national areas; enhancing efforts to deal with issues such as human, animal and plant diseases which know no borders; facilitating the sharing of regional resources and experience in activities such as research and training; or building a regional infrastructure. Characteristic for many of these activities is that they are regional public goods.
107. One can offer a number of examples of regional public goods, which can be defined as “public goods that must be delivered on the supranational level by the two sub-national governments acting in concert”. They include: financial market regulation issues; co-ordination of cross-border transport networks, telecommunications, power grids and data transmission; agricultural research and extension; law enforcement environmental management issues including watershed management, pollution, management of natural reserves and scientific research on issues of eco-zone management; public health issues including management of infectious disease and basic research on diseases endemic to a particular region. All these will be within the purview of the Regional Council of Greater Jammu and Kashmir.
108. The prospect of overall welfare gains from regional co-operation will make the negotiation of such agreements easier than trade agreements. Regional Trade Agreements can be a help in cooperating on non-trade issues. Three arguments are relevant here. First, Regional Trade Agreements can help in brokering regional cooperation agreements by putting more issues on the table and embedding them in a wider agreement, which may lower the transfers necessary to ensure that all parties feel they have something to gain from sustaining the agreement. Second, the habits of cooperation and frequent interactions at policy level generated by some Regional Trade Agreements may raise the degree of trust between parties, which was shown above to be important in reaching cooperative regional agreements. Third, regional cooperative agreements will often need specialized institutions such as dispute settlement procedures, and rather than custom-build a separate institutional structure for each regional agreement, it may be more efficient and effective to make use of the institutional structures of a Regional Trade Agreements
109. Given the fact that there is a demand by market actors for greater integration and that market actors perceive a significant potential for economic gains from extending market exchange within the region, the process of integration will eventually gather a non-political momentum. Market players will have an incentive to lobby for regional institutional arrangements that render the realization of these gains possible.
110. It needs to be clarified that while we are discussing the economic motivations for regional integration and the likely trade and welfare consequences of forming Regional Trade Agreements, the idea is to present ways and explore the extent to which Regional Trade Agreements can be used as a instrument to share sovereignty in the policy areas covered by the Regional Trade Agreements.
111. The other potential areas of economic cooperation are water, energy and transport sectors. Moving forward one area where significant synergies have to build and cooperation cemented is the area of energy. It is important that efforts are made to design and develop a regional energy market. The Greater Kashmir Regional Energy Basin, based primarily on hydro resources, should be able to provide modern and liberalised gas and electricity systems to the entire region and not just J&K alone.
112. The key to such a regional energy market based on international standards, transparent rules will be mutual trust. It will set the right environment for the optimal development of the energy sector in the region. Most importantly, it will make energy tradable and the joint agreement governing energy trade that can be visualized will substantially contribute to attracting investment into this strategic sector.
113. Where transport infrastructure is concerned, an integrated regional transport strategy, consistent with the trans-national networks and taking into account the pan-J&K corridors, can be an area of high priority.
114. Both India and Pakistan should also support, and indeed will find it useful to support, joint projects of regional significance and regional initiatives in the areas of environmental protection, science and technology, information and communication technology.
Constitutional Restructuring:
115. Finally, for self-rule to function effectively, there has to be a degree of restructuring the Constitutional relationship of the State with the Union. Based on normative test of harmful effect on the people of the State, the following constitutional restructuring should take place:
a. Article 356, which undermines the core of Self-rule i.e., the will and determination of the people to have a legislature and government of their own choice, elected democratically and based on their free exercise of adult suffrage has to be made non-applicable to J&K. Article 356 is treated, for legitimate reasons, with suspicion and consternation by even other states of the Union. In the State of Jammu and Kashmir, people have valid reasons to dread this provision even more. We need not count or mention the number of times the will and the choice of the people, though expressed through imperfect and, occasionally, even subverted and corrupted political processes, was thwarted in the State. This is a long and treacherous history � better left alone in this paper. Therefore, there is a compelling reason for rolling back Article 356 for that shall not only impart to people a sense of democratic security but shall also be in the enlightened national interest. However, if there is a real and present danger to the security or integrity of the Union or the State, there is already Article 352 which provides adequate machinery to take care of the situations of external aggression and internal disturbances. This is in addition to Section 92 of the Constitution of the State which vests, in essence, similar power in the Governor of the State. Section 92 can be amended to provide for situations beyond six months subject to certain safeguards. Here it may be recalled that Delhi Agreement of 1952 itself had recorded the position that both the State and the Union had regarded the extension of Article 356 to State as unnecessary.
b. Article 248 as applicable to the State in its amended form should confer concurrent jurisdiction on the State under (i) to legislate on the subject of terrorist activities.
c. Article 249, applied to the State in amended form, should be rolled back so that the Parliament cannot exercise legislative jurisdiction over a matter which, otherwise, falls under the State jurisdiction.
d. Article 251, in its application to the State, should omit reference to Article 249.
e. Sixth Amendment of the Constitution of the State which undermines its original scheme of a comprehensive and accountable executive (inclusive of the Head of the State) a critical component of Self-Rule, must be repealed. Prior to this amendment, Sadar-e-Riyasat, the head of the State, was elected by the State Legislature. The Sixth Amendment altered this position and provided for appointment and removal of the Governor by the President of the Union. The original provision imparted a great comfort to the people that the head of the State, being accountable to them, would act as their agent, free from any external and extraneous pressures or chain of command. Since the Governor has the power to dismiss the state government and dissolve the State Assembly under Section 92 of the Constitution of State, the issue whether he can be appointed and removed by the representatives of the people or by the Central Government assumes great political and psychological significance in the State. The appointment of the Governor by the Union Government is one of the important features of the Constitution of India which makes it less than truly federal in character. In the case of our State, the original constitutional scheme had enshrined a sound federal principle of election of the head of the State by State itself. The change in this scheme undermined the basic structure of the State’s Constitution and is legally suspect.
116. Be that as it may, despite this amendment, the provisions in Part VI Ch. II of the Indian Constitution relating to Governor were not made applicable to the State. Legally, therefore, the state legislature could anytime, by following the constitutional provision contained in Section 147 of the Constitution of the State, repeal the Sixth Amendment and restore the erstwhile scheme of an elected Head of the State. Prior to Sheikh�Indira Accord of 1975, this was the legal position. Sheikh Abdullah insisted for restoration of the erstwhile constitutional position viz-a-viz the office of Sadar-e-Riyasat and the Prime Minister. However, while Sheikh�Indira Accord postulated further discussions on this subject, actually Constitutional Order 101 was promulgated by the President under Article 370, adding the following Clause to Article 368 in its application to the State:
a. “[(b) After Cl (3) of Article 368, the following clause shall be added, namely:-
i. “(4) No law made by the legislature of the State of Jammu and Kashmir seeking to make any change in or in the effect of any provision of the Constitution of Jammu and Kashmir relating to:
1. appointment, powers, function, duties, emoluments, allowances, privileges or immunities of the Governor; or,
2. superintendence, direction and control of elections by the Election Commission of India, eligibility for inclusion in the electoral rolls without discriminations, adult suffrage and composition of Legislative Council being matters specified in Section 138, 139, 140 and 50 of the Constitution of Jammu and Kashmir.
3. Shall have any effect unless such law has, after having been reserved for the consideration of the President, received his assent”.
117. With respect to this proviso, relating to Governor, added to Article 368, the following points should be noted:
a. The proviso, limiting the powers of State Legislature, has been added to Article 368, which deals with the powers of the Parliament to amend the Constitution of India and not the power of State Legislature to amend its own constitution. The proviso is, therefore, totally and grossly out of place and ultra vires the constitutional scheme.
b. The power to amend State Constitution is vested in the State Legislature under Section 147. It permits the State Legislature to amend any provision of Constitution except a few specified provisions mentioned therein. The provisions in Part V of the Constitution of the State relating to Governor do not fall in the excepted category and the same can be clearly amended by the State Legislature repealing the relevant provision of the Sixth Amendment. No provision of the Constitution of the State, except the exercised specified provisions, can be made un-amendable, nor can this constitutional power of amendment be subjected to approval by the Union of India. This is for the reason that, to achieve that result, Section 147 itself would have to be amended. But Section 147 has been made un-amendable by the Constitution itself. That is why the title Sadar-e-Riyasat still finds place in this Article, though this office has been dispensed with under Sixth Amendment. Hence the proviso is ultra vires.
c. The State Legislature’s constitutional power of amendment is the core of empowerment or Self-rule of the State and this cannot be destroyed by an order passed under Article 370. This is a glaring example of colorable exercise of power.
d. Section 147 of the Constitution of the State confers the power on the Legislative Assembly to abolish Legislative Council. This power of the Assembly is un-amendable because Section 147 is itself un-amendable. Constitutional Order 101 on this ground is also ultra vires.
118. This provides another example how Article 370 has been used as a Vehicle for excessive and, sometimes, illegal intrusion in the domain of Self-rule of the State, instead of as a bridge to be used for necessary and wholesome purposes.
119. The assault on the constitutional power of the State Legislature, grossly manifested by the above discussed Constitutional Order passed under Article 370, clearly establishes the necessity for incorporating some fool-proof provisions in the Constitution of India and J&K in the event a new scheme is devised and accepted pursuant to the discussions of the working group appointed by the Hon’ble Prime Minister.
120. It is therefore imperative that the relevant provisions of Constitutional Order 101 be rolled back which, in any case, is ultra vires the constitution. Instead, the erstwhile scheme prevalent prior to Sixth Amendment be restored.
121. We further propose that the Head of the State be elected from the regions of Jammu and Kashmir by rotation. This shall give to the people of all the regions an equal and equitable sense and feeling of empowerment and shall strengthen their bonds.
122. An argument is advanced by certain quarters that Governor is the only link between the Union and the State and that if the Head of the State is elected rather than appointed by the President of India this link will break. This is an argument of mistrust. Union must respect and trust the collective judgment of the people of the State rather than rely only on the appointment of non-state subject as a guarantee of linkage between the Union and the people of the State. Besides, there is sufficient element of linkage and control in Articles 256 and 257 of the Constitution of India, which give the power to the Union to issue directions to the State to behave in a manner that accords with the executive power of the Union.
123. When Article 370 was inserted in the Constitution of India, it was designated as temporary. It was for the reason that power to decide whether this provision should remain in force or whether it should be modified was vested with the Constituent Assembly of the State. This Assembly decided in 1954 that the provision should remain in force. Hence this became the permanent provision of the Constitution of India. The Parliament of India should therefore, remove the phrase “temporary” and substitute it by the word “special” in Article 370.
124. Under Article 370 of Constitution of India certain entries of schedule 7 List I (Central List) and List III (concurrent list) have been made applicable to the State. List II (States List) not be made applicable to the State, because the residuary legislative powers including those in List II are vested in the State Legislature anyway. Thus the legislative powers under entries 17 and 23 of list II, relating to water and mines, vested in the State Legislature. In the Central list, entry 54 vests in the Parliament, the power to make laws with respect to mines and under entry 56 of the said list, Parliament has power to make laws with respect to inter-state rivers, provided that the development of such mines and rivers is declared by parliament to be expedient in the Public interest. Clearly, therefore, the jurisdiction over rivers Chenab, Jehlum and Sindh is vested in the State. In the view of PDP, even if Union of India is bound to respect Indus Water Treaty, the least it can do is to offer due and proper compensation to the State for surrendering the use of its rivers to Pakistan. All legal provisions, if any, which stand in the way of State getting its legitimate due must be overcome.
125. As is well known, while the executive authority of the State is constitutionally vested in the Governor/Council of Ministers, factually the bureaucracy exercises it. The All India Services Act, 1951 has been extended to the State, as a result of which officers belonging to All India Services cadre hold all-important positions in the civil and police administration. The local human resources are under-utilized and are occasionally not trusted to hold sensitive positions in the State Executive. Any idea of Self-rule is incomplete without providing that the executive authority of the State is actually exercised by the State subjects. It is, therefore, proposed that All India Service Act, 1951 and Article 312 be rolled back and the local human resources are provided clear and unhindered opportunity to develop their full potential and it is trusted to manage the affairs of the State. In so far as, the Central statutes extended to the State are concerned, the same can be reviewed on merits, on case-to-case basis.
126. It should be evident that the scheme of regional federalism of self-rule, all religions and groups are taken care of it. What remains are the minorities. Beyond participation across regions, it has to be the effort of the governance structure as well as the legislative system to maximise the participation of ethnic minorities. Principal among these are the Kashmiri Pandits who have an important role to play in the present and future of the State. The return and the rehabilitation in the valley of this ethnic minority is critical to the peace process. Beyond the peace process itself, Kashmiri Pandits are an integral part of Kashmiri society and essential for the strengthening of the composite, but, pluralistic culture that has defined Kashmir historically.
127. In the existing situation, the return and rehabilitation of economic and political migrant and recognition of their rights will not only be the index of normalcy in the state but also of democratic maturity of our civil society and state institutions. In this context, it is proposed to guarantee minority representation for kashmiri pandits in the state assembly.
128. To foster minority confidence in public institutions as well as ensure responsiveness of these institutions to all segments of the kashmiri society, it is also proposed to have a Minority Ombudsman for the state. The Ombudsman will aim to create and expand the availability and effectiveness of institutions addressing minority issues in J&K. As a key institution, ombudsman will play a significant role in minority issues, especially, in promoting good practices in minority governance. The major contribution of this institution will be to enhancing the understanding of issues surrounding migrants and other migrant minorities and ensure their integration into society and participation in public life.
129. A number of people and organisations have suggested setting up of a Truth and Reconciliation Commission in and for J&K. To help the civil society achieve its earlier integration this can be a very useful initiative. The TRC is a commission tasked with discovering and revealing past wrongdoing by a government, in the hope of resolving conflict left over from the past. While they are occasionally set up by states emerging from periods of internal unrest, South Africa’s Truth and Reconciliation Commission is generally considered a model Anybody, who felt they had been a victim of violence could come forward and be heard at the TRC. Perpetrators of violence could also give testimony and request amnesty from prosecution. The TRC, if set up with honesty and sincereity, can be was a crucial component of the transition to civil strife towards harmony.
130. To conclude, notwithstanding anything � any formulation, proposal, intention or gestures, one thing is very clear: status quo cannot be maintained in the J&K. The assurances and promises, extended to the State by Union of India, from time to time, are a part of the history. All those assurances intend to convey to the people of the State a solemn pledge that they can enjoy internal sovereignty or Self-rule in the State.
131. Self-rule and its associated formulations in the sphere of polity, economy and society of greater Jammu & Kashmir will not entail major constitutional and political restructuring in India. This formulation of Self-rule will prove efficacious and beneficial to the extent if it is accompanied by other concomitant measures. As part of the settlement process with Pakistan, both the countries should proceed to improve the lives of the people of the entire State.
132. Once this formulation of self-rule is accepted in and by India, it can be discussed with Pakistan for seeking a similar dispensation for the people living in Pakistan Administered Kashmir and Northern Areas. Along with the bilateral negotiations between the two countries, it will be desirable to have institutional arrangements between the two parts of Kashmir to work out a durable supra-national institutional structure. This is an essential part of the holistic concept of Self-rule.
Main Proposals
The comprehensive formulation of self-rule has three sub-components:
1. A new political superstructure that integrates the region and empowers sub-regions:
a. The centrepiece of the governance structure under self-rule is the cross border institution of Regional Council of Greater Jammu and Kashmir. The Regional Council will replace the existing Upper House or the Legislative Council of J&K, and will be a kind of a regional senate. Members of the Regional Council will be from J&K, as well as from Pakistan administered Kashmir, as well as nominees by the Government of India and Pakistan. This will serve as a major cross-border institution, which will ensure long-term coordination of matters and interest relating to the state.
b. To empower various sub-regions within the J&K state, a tier that of sub-regional councils, will be added to the domestic legislative structure. While the national Parliament will have representations to the sovereign, the state assembly will continue to be a sub-national institution, the sub-regional councils will complete representative character of governance by bringing in the territorial representation in the state.
2. A phased economic integration that transcends borders:
a. A critical element of self-rule is the economic integration across the line of control. For the process of integration, the following roadmap can be envisaged:
iv. Establishing common economic space;
v. Instituting a dual currency system
vi. Coordinating economic policy, harmonization of economic legislation and synergistic regulations;
2. The process of economic integration of the two parts of Jammu and Kashmir can start with the easiest form of economic integration � a “Preferential Trade Agreement”. In the PTA the two countries, India and Pakistan would offer tariff reductions, though perhaps not eliminations confined to the geographical boundaries of “Greater Jammu and Kashmir” and restricted it to some product categories. Higher but non-discriminatory tariffs, would remain in all remaining product categories. Stage II would be to make GJAK a free trade area. It can be called a “Regional Free Trade Area”. Creating a regional free trade area will mean an agreement to eliminate tariffs between the two parts of J&K, while maintaining their own external tariff on imports from the rest of the world, including India and Pakistan. In stage III, it can be agreed to eliminate tariffs between the two parts of GAJK and set a common external tariff on imports from India and Pakistan. This could be later applied to rest of the world.
3. This can be followed by a common market establishes free trade in goods and services, set common external tariffs and also allows for the free mobility of capital and labor across countries.
4. Further, instead of looking for a monetary union, a new system of “Dual Currency” will be created, where the Indian and Pakistani rupees are both made legitimate legal tenders in the geographical areas of GJAK. A better description of this system is a “co-circulation of two currencies” in J&K. It is being proposed that Indian and Pakistani rupees should be the medium of exchange in J&K. To be more precise, it means, allowing circulation of the Pakistani rupee in the Indian part of J&K currency and circulation of Indian rupee in the Pakistan administered Kashmir. This has to be done if we want cross the line of control trade to flourish.
5. Our vision is to move towards an economic union which will maintain free trade in goods and services, set common external tariffs, allow the free mobility of capital and labor, and will also relegate some fiscal spending responsibilities to a supra-national agency.
6. Consistent with our legislative design, the economic integration will be deepened through sub-regional integration; that is formation of different sub-regional groups. Appearance of different sub-regional projects can generate multi-speed integration.
3. Constitutional restructuring that ensures sharing of sovereignty without compromising political sovereignty of either nation state.
a. For Self-rule to operate effectively, Article 356, which undermines the core of Self-rule and has to be made non-applicable to J&K. In a similar vein, Article 249, applied to the State in amended form, should be rolled back so that the Parliament cannot exercise legislative jurisdiction over a matter that, otherwise, falls under the State jurisdiction.
b. Sixth Amendment of the Constitution of the State that undermines its original scheme of a comprehensive and accountable executive (inclusive of the Head of the State) a critical component of Self-rule, will have to be repealed. Prior to this amendment, the State Legislature elected Sadar-e-Riyasat, the head of the State.
c. The proviso, limiting the powers of State Legislature, has been added to Article 368, which deals with the powers of the Parliament to amend the Constitution of India and not the power of State Legislature to amend its own constitution. The proviso is, therefore, totally and grossly out of place and ultra vires the constitutional scheme. The State Legislature’s constitutional power of amendment is the core of empowerment or Self-rule of the State and this cannot be destroyed by an order passed under Article 370. All India Service Act, 1951 and Article 312 be rolled back and the local human resources are provided clear and unhindered opportunity to develop their full potential and it is trusted to manage the affairs of the State.
d. It is a part of the design of self-rule that Head of the State be elected from the regions of Jammu and Kashmir by rotation. This shall give to the people of all the regions an equal and equitable sense and feeling of empowerment and shall strengthen their bonds.
[1] For the past five decades India, Pakistan and J&K have been involved in high stakes negotiations for resolving what is called the “Kashmir dispute”. Shorn of all its complexity, it is essentially related to the two countries effort to define their respective borders in a situation where control of territory has not meant so much a control of resources as improved strategic positions. Strong-arm politics, economic pressures, shadowy backroom deals, nationalist sentiments, public dissatisfaction and an environment of mutual mistrust have marked this process. The resolution of the border issue peacefully and transparently would have a huge positive impact on regional security, economic cooperation, ethnic relations and efforts to combat arms trafficking and religious extremism. But progress has been slow, and no immediate breakthrough can be seen in an all too often antagonistic process.
The current difficulties can be traced directly back to the partition in 1947. That process in relation to J&K followed neither natural geographic boundaries nor strict ethnic lines. This has been further compounded by the repeated efforts at redefining Indian nationalism and the pervasive search for an identity of Pakistan’s nation state. All these factors combined to create a complex stew of territorial claims and counterclaims. An artifical and temporary line � the line of control � has become a border, de jure and de facto, that has over the years become internationalised with a major significance in international politics.
Long-standing industrial and transportation links have been disrupted and discarded. Border crossings are banned throughout the region. Demands for visas, only available in capitals and at a high price for local people, have made freedom of movement increasingly difficult. As cross-border travel became difficult, interaction between populations that once shared many aspects of a common culture and way of life has become impossible. As new lines are drawn on the map, so new borders and new stereotypes are being created in people’s minds. Ethnic populations that had long enjoyed access to friends and family just across borders were now isolated and often faced visa requirements and other access difficulties. Much of the population views these new restrictions with hostility and has felt the disruption in traditional patterns of commerce and society acutely.
Limiting cross-border movement has, in the recent past, been done in the name of security, yet few border services are sufficiently proficient to prevent determined traffickers or terrorists from crossing frontiers. And the means used to secure borders have had a directly negative impact on the lives of local people. There are regular reports of deaths in unmarked minefields, shooting of villagers who have strayed into foreign territory, and huge social and economic costs from the destruction of cross-border transport infrastructure.
Resolving this lingering and substantial border disputes has become critical. Bilateral relations have often been uneasy for a variety of reasons, and tensions over borders have only made cooperation in other areas, such as trade, impossible. The worst part is that this disputes has also become an important domestic political issue. Concessions made in border negotiations can be rich fodder for political oppositions and this has served to further constrain the latitude of governments to compromise.
The resolution of territorial disputes is obviously emotional and goes directly to each country’s definition of national interests. No nation wants to make territorial concessions. Especially when it can have strategic implications. Nonetheless, the failure to resolve or atleast bypass such territorial issues has prevented the two neighbours from normalising relations and dealing with pressing social and economic issues. Thus it is important that any territorial differences be resolved or bypassed on a mutually acceptable basis in accordance with economic rationality and political sagacity.
October, 2008
Jammu & Kashmir:
The Self-Rule Framework for Resolution
Contents:
Preface
Executive Summary
Chapter I: The Overall Context of Resolution:
i) International: Globalisation
ii) National: Democracy & Conflict
iii) Regional: Resistance to Representation
Chapter II: Contours of Resolution:
i) Demilitarisation
ii) Challenges
Chapter III: Framework for Resolution: Self-Rule
i) New political superstructure
ii) Economic Integration
iii) Constitutional Restructuring
Main Proposals
PREFACE
The Peoples Democratic Party prepares and offers this working paper on J&K as an act of hope. The hope lies in the belief that if the decision-makers and responsible political parties discern the categorical imperatives that have impelled this formulation, realize its intent and motive and examine its contents on merits, objectively and realistically, and not on partisan considerations or with chauvinistic mind-set, it will be possible to forge a consensus on the way forward.
The Peoples Democratic Party is not presenting a solution; nor does it pretend to have one. Indeed, it is our belief that roadmaps prejudge the issue; readymade solutions make the problem a distorted image of what it actually is; and models make a mockery of specificity of the issue. As such, what we have attempted in this document is an internally consistent framework and indicative direction for resolution. We have tried to contextualise the issue at various levels and drawn the contours of a process for building sustainable peace in the State and the region. The essence of this document lies in trying to suggest a creative framework for resolution of the issue without compromising the sovereignty of the two nation states involved.
We are convinced that various proposals and measures, as fleshed out in this document, address both the internal and the external dimensions of the problem in, and about Jammu and Kashmir, in a manner that is realistic and practical. Our effort has been to root these in the ideals of justice and empowerment for all the people of the State. We see our recommendations, as catalysts for change and instruments for fulfilling the aspirations of all the peoples of J&K, and regions and sub-regions of the State.
We have not looked for solutions in the past, but we have made an effort find a way in the future. A return to the past may not be possible - indeed, if may not even be desirable. The past offers no hope. Our party recognises that we are living through a period where definitions of cultures, societies, sovereignty, and nationality are changing very rapidly and radically. All these issues have gone through a large number of transformations and sometimes, dramatic shifts. The world has undergone a change and we have to be a part of that changed system.
EXECUTIVE SUMMARY
1. The J&K issue cannot be resolved on the basis of exclusively intra-state level initiatives. It requires a combination of intra-state measures with inter-state and supra-state measures. This approach, which is underlying the concept of self-rule, is a practical way that would eliminate the sources of ethno-territorial conflicts, entrenched in the traditional notions of sovereignty, self-determination, national and ethnic borders.
2. Self-rule is a formulation that will integrate the region without disturbing the extant sovereign authority over delimited territorial space. It doesn’t impair the significance of the line of control as territorial divisions but negates its acquired and imputed manifestations of state competition for power, prestige, or an imagined historical identity. It is a way of "sharing sovereignty", without need or commitment to political merging. It is based on the creation of innovative international institutional arrangements that have a political, economic and security character. Self-rule encompasses the society, the state, and the economy. Self-rule, being a trans-border concept, has a pan-Kashmir dimension but at the same time seeks to regionalise power across J&K.
3. Self-Rule as a political philosophy is being articulated around the conception of federalism and confederation that allow for sharing of power between two levels of government, for the sharing of sovereignty in a coordinated but not subordinated to one another, each exercising supreme sovereignty in its constitutional prerogatives. The comprehensive formulation of self-rule has three subcomponents:
i. A new political superstructure that integrates the region and empowers sub-regions
ii. A phased economic integration that transcends borders
iii. Constitutional restructuring that ensures sharing of sovereignty without comprising political sovereignty of either nation state.
New political superstructure:
4. The centrepiece of the governance structure under self-rule is the cross border institution of Regional Council of Greater Jammu and Kashmir. The Regional Council of Greater Jammu and Kashmir will replace the existing Upper House of state assembly, and will be a kind of a regional senate. Members of the Regional Council will be from J&K as well as from Pakistan administered Kashmir. At present the state assembly of J&K holds 20 seats for representatives from across the line of control. These will be given up and replaced by the same number of seats in the Regional Council of Greater Jammu and Kashmir. This will serve as a major cross-border institution, which will ensure long-term coordination of matters and interest relating to the state.
5. Moreover, such an institutional structure will provide a framework within which certain matters between the two parts of the State and their respective mainland, that need to be sorted out to infuse in people a sense of empowerment and a feeling of belonging. This will require devising an improved constitutional, political and economic relationship between the two parts of the State and their respective main lands.
6. In order to empower various sub-regions within the J&K state, a tier of sub-regional councils, will be added to the domestic legislative structure. While the national Parliament will have representations to the sovereign, the state assembly will continue to be a sub-national institution, the sub-regional councils will complete representative character of governance by bringing in the territorial representation in the state.
Economic Integration:
7. A critical element of self-rule is the economic integration across the line of control. This integration can be pursued in different degrees, deepening the process as we go along and as the system and society adapts to change. The process can be started by declaring the intention to establish common economic space and sign an agreement with a roadmap which envisages:
i. Establishing a common economic space;
ii. Instituting a dual currency system
iii. Coordinating economic policy, harmonization economic legislation and synergising regulations
8. The process of economic integration of the two parts of Jammu and Kashmir can start with the easiest form of economic integration, a Preferential Trade Agreement. In the PTA the two countries, India and Pakistan would offer tariff reductions, or eliminations confined to the geographical boundaries of “Greater Jammu and Kashmir” and restrict it to some product categories. Stage II would be to make GJAK a regional free trade area, with no tariffs or barriers between with GJAK, while maintaining their own external tariff on imports from the rest of the world, including India and Pakistan. GJAK will set a common external tariff on imports from India and Pakistan.
9. Further, instead of looking for a monetary union, a new system of “Dual Currency” will be created, where the Indian and Pakistani rupees are both made legitimate legal tenders in the geographical areas of GJAK. A better description of this system is a “co-circulation of two currencies” in J&K. It is being proposed that Indian and Pakistani rupees should be the medium of exchange in J&K. To be more precise, it means, allowing circulation of the Pakistani rupee in the Indian part of J&K currency and circulation of Indian rupee in the Pakistan administered Kashmir. This has to be done if we want cross the Line of control trade to flourish.
10. Our vision is to move towards an economic union, which will maintain free trade in goods, and services, set common external tariffs, allow the free mobility of capital and labour, and will also relegate some fiscal responsibilities to a supra-national agency.
11. Consistent with our legislative design, the economic integration will be deepened through sub-regional integration; that is formation of different sub-regional groups. Appearance of different sub-regional projects can generate multi-speed integration. It needs to be understood that GJAK is being proposed as a regional organisation to facilitate political cooperation as well as promote cooperation between India and Pakistan, and regaining Kashmir’s place at the heart of Central Asia.
Constitutional Restructuring:
12. Self-rule cannot exist without adequate constitutional safeguards. As the Constitutional position stands today, Article 356, undermines the core of Self-rule and has to be made non-applicable to J&K. In a similar vein, Article 249, applied to the State in amended form, should be rolled back so that the Parliament cannot exercise legislative jurisdiction over a matter that, otherwise, falls under the State jurisdiction.
13. Sixth Amendment of the Constitution of the State that undermines its original scheme of a comprehensive and accountable executive (inclusive of the Head of the State) a critical component of Self-rule, will have to be repealed. Prior to this amendment, the State Legislature elected Sadar-e-Riyasat, the head of the State.
14. The proviso, limiting the powers of State Legislature, has been added to Article 368, which deals with the powers of the Parliament to amend the Constitution of India and not the power of State Legislature to amend its own Constitution. The proviso is, therefore, totally and grossly out of place and ultra vires the constitutional scheme. The State Legislature’s constitutional power of amendment is the core of empowerment or Self-rule of the State and this cannot be destroyed by an order passed under Article 370. All India Service Act, 1951 and Article 312 be rolled back and the local human resources are provided clear and unhindered opportunity to develop their full potential and it is trusted to manage the affairs of the State.
15. It is a part of the design of self-rule that Head of the State be elected from the regions of Jammu and Kashmir by rotation. This shall give to the people of all the regions an equal and equitable sense and feeling of empowerment and shall strengthen their bonds.
Chapter I
The Overall Context of Resolution
International Context: Globalisation
1. The world of the early twenty-first century displays three striking patterns. Increasing globalisation, whether defined as economic integration, or more broadly, to include trans-border politics and cultural exchange, appears to reduce the importance of conventional territorial boundaries created by nation states.
2. Integration implies as its end point an elimination of the significance of such boundaries for flows of goods, capital, and people. At the same time, citizens’ territorial attachments to their home regions and countries have shown few signs of weakening. Territory remains a powerful means for the mobilization of populations. That power lies at the heart of the third pattern: the persistence of violent conflicts fought over territorial stakes.
3. Territorial disputes continue to be the most common source of conflict between states, and territory has increasingly become the most frequent reason for violent conflict within states. Territorial boundaries may be less important as a barrier to the movement of capital, people, and goods, but control of these borders and the territory that they encompass often remains a central goal for nation states and citizens.
4. In many ways, globalisation � particularly global economic integration � has been eroding or “hollowing out” the role of the nation-state as governance has moved to global and regional international institutions and devolved to sub-national units.
5. Finally, militarised conflict also has undergone re-examination as the Cold War and its “long peace” among the great powers ended. Rather than witnessing a resumption of great power rivalry and war, which had been predicted by some, a very different pattern has emerged. War between states has continued its decades-long decline while war within states has significantly increased.
6. As such, globalisation has posed a unique and historically unprecedented challenge to the “classic” territorial state. It has managed to disengage, if not separate, sovereignty from territoriality. In the contemporary era of state-defined territoriality, the claim of many juridical states to exercise actual territorial control within clearly delimited boundaries has also been challenged. This has introduced fluidity in the territoriality and sovereignty relationship.
7. Increasingly, there is sovereignty is being subsumed into territorial governance. In this framework, the two principal dimensions of territorial governance are border delimitation and jurisdictional congruence. Border delimitation captures the means by which political units separate themselves from other units, means that can in turn be characterized by more or less precision and permanence. Jurisdictional congruence measures the degree to which exclusive political authority across policy domains coincides with those boundaries. In this there is a considerable variation that is possible and a wide range of possibilities can coexist.
8. Jurisdictional congruence � exclusive political control across policy realms within the delimited boundaries can be used to find a practical solution to all such conflicts that confront us today. There is an identity and political space that can be preserved while the decision space can be shared.
9. Since 1945, and particularly since 1980, the clash of national policy jurisdictions has grown as globalisation has led the more powerful states to extend their norms and practices to other parts of the world that are now more closely integrated with one another. Policies that used to lie well “behind the border” have been placed on the international agenda.
10. Among economic equals that share similar values and policies, regimes of mutual recognition or policy harmonization are typically negotiated: the European Union is a principal example of this strategy for dealing with territorial limits and jurisdictional conflict. Regional and international institutions are also deployed at the global level to reduce conflict.
11. Globalisation also reduces the importance of territory as a tangible stake in conflict between states. Even as it reduces the importance of land it tends to increase the importance of certain tradable resources that are linked to territory; be this water, gas, oil et al. Further, globalisation may also provide incentives and instruments for resolving territorial conflict. Incorporating the links between globalisation and territorial conflict may force the adaptation of conventional instruments of conflict resolution. Perhaps the most important hypothesis that emerges regarding globalisation and the resolution of territorial disputes between states lies in the economic incentives for settled boundaries provided by economic integration. The opportunity costs of trade and investment foregone become more apparent as economic exchange burgeons at the global level. Globalisation creates strong incentives for porous national boundaries leading to less conflict between states.
12. Along with the end of political bi-polarity, an equally important set of factors has been the pressures and opportunities of globalisation. Technological innovations in communication and transportation, and in particular, the movement of capital across borders, have circumvented or eroded traditional state sovereignty not only in the conduct of international finance and trade, but increasingly, in their own domestic affairs. This is a crucial fact that will have to be borne in mind for any future dispensation that we might conceive for Jammu and Kashmir.
13. The vacuum left behind after the Cold War, coupled with the vagaries of globalisation has created serious external strains on the traditional nation-state apparatus, particularly in the developing world. Many developing states that were already weakened or failing due to a variety of internal factors will be under greater pressure now. All this will lead to newer and more relevant definitions of sovereignty.
14. Indeed, the seeds of a solution lie in using the logic of this change that is spearheaded by globalisation to evolve a framework for new political dispensation in Jammu and Kashmir. This will resolve the issue on a long-term bias.
National Context: Democracy and Conflict
15. The growth of conflicts within India has coincided with the de-institutionalisation of the Indian state. Both the normative and organisational pillars of post-independence India � secularism, socialism and democracy � have undergone some radical redefining and changes. The three were operating in tandem, one supporting and complementing the other. The three, individually and collectively, were the ideological underpinning of Indian nationalism.
16. All these three have weakened. Secularism is has been redefined. Socialism has been abandoned. The character of democracy, intensive as it may be, especially from the stand point of J&K, has been altered. More than democracy, for most of the time it has operated as democratic authoritarianism for the state of J&K. Nationalism and Indian nation, which was a composite of these three ideological pillars, also did undergo a change, necessarily. We are in that transition phase where nationalism is being redefined.
17. As a result a major challenge has been posed to the structure of nationhood inherited from the nationalist struggle and consolidated over the early decades of independent India. New forces appeared on the political horizon leading to a redrawing of the cultural boundaries of the nation. And a result, a change in the concept of Nationalism.
18. These new forces are represented by the emergence of the return of the repressed discourses of caste and community, and the eruption of `sub-national' assertions. Simultaneously occurred a political churning leading to the growth of the Hindu right. As a consequence the terms of public discourse were refashioned, even turned upside down. Secular nationalism hence came under severe strain and the Hindu communal or nationalist discourse gained ground in the void created by the retreat of secular nationalism.
19. These developments point to a certain kinship between the hegemonic secular nationalist discourse and the resurgence of the right. As such it was a political transformation not rooted in changing social and cultural consciousness. It is, however, true that whenever under strain nationalism in India revealed Hindu colours. In fact, Indian nationalism always betrayed an undercurrent of Hindu religious sensibility, which has adversely affected its secular character.
20. This change, which had and continues to have a major impact on the way in which political discourse and dialogue is conducted in J&K, points more to the weaknesses of secular practice, rather than the concept of secularism. The social and political space that the Hindu right seized was created partly by the retreat of secularism due to the weaknesses of its practice. The place of minorities and Dalits in the nation is an important factor in the fortunes of secular nationalism. As such the very project of Indian nationalism was an impossible one, precisely because it was impossible to have one common history.
21. The different histories of communities and intercommunity relations that provided the ingredients for different imaginations of selfhood led to different articulations of nationalism in Hindus and Muslims. It is not that there is no shared cultural ground between Hindus and Muslims but that it did not comprise the entire arena of inter community relations. That it was so is in the least surprising, as it would never be the case in any intercommunity relations. Today, the biggest challenge facing the nation is how to conduct dialogue with the masses who had already been constituted as Hindus, Muslims and, Christians. How to design an institutional framework that provides enough space yet hold the nation together. The success of secular nationalism would partly depend upon the answer to this question.
22. The same is true of the regionalism. The rise of regionalism in India, has meant an improved articulation of political, social and economic aspirations of the sub-nations, like J&K. The illegitimate symbiotic relationship with the state and its repressive measures and civil bureaucracy, which had imparted an authoritarian stand to governance of the Centre has been substantially broken in many parts of the country. As such what may have been acceptable for the larger system to create an enclave of federalism within a unitary system, and combine the advantages of a loose federation with those of a centralized system, without impairing its functioning, seems to be possible today. The situation has changed with regional parties gaining prominence and the Centre being ruled by a coalition of parties. Even though it is the same constitution, the spirit is far more federal today and the autonomy issue may not suffer from the same ills as it did earlier. A fact nobody could have foreseen is this development of regional aspirations and regional forces coming to the fore. Symbolizing regional aspirations while maintaining commitment to the national integrity or unity of the nation are the states of Andhra Pradesh, West Bengal, Tamil-Nadu, and North-east.
Jammu and Kashmir: From resistance to representation
23. It is now a well-accepted fact that the peace process in the sub-continent is irreversible. It may move in fits and starts, but the direction is clear. There can be no denying the fact that since 2003, political initiatives � Line of control, domestic, bilateral and international � have all been moving in a positive direction, albeit at a slow pace. There are a few remarkable features about this peace process, which have a bearing on its sustainability, that were not in evidence in the earlier initiatives. First, is that it is for the first time in the history that J&K state and its government has initiated, catalysed and driven the peace process. From being a passive recipient of bilateral initiatives, the state, immediately after the election of 2002, took centre-stage and drove the peace process at the bilateral level. In other words, for the first time in the troubled history of our state, the PDP-led State Government was not in an adversarial role. This has stopped the marginalisation of moderates in the political spectrum of Kashmir.
24. In doing so, the government revived social collaboration, political reconciliation, and democratic participation, through innovations and indeed historic steps. Be it the opening of the Srinagar- Muzzaffarabad Road or the Sialkot - Rawlakote road, or the allowing of travel on permit and not passport basis, it all added up to a collective political engagement and consequent reduction in the structural and individual alienation. These were not events but processes that catalysed the peace process.
25. This reversal of roles � the state government driving these steps and the Union government endorsing it ---- has meant a much wider grounds-feel of peace process in the state, which has been seen, felt and heard. The net result has been that there have been local stake in the peace process. It has generated consensus among principal stakeholders -- the people of Jammu and Kashmir -- on the resolution of the “Kashmir issue”. What this has done is to create a new basis of legitimacy by the only and ultimate source of authority, namely, the people itself.
26. The earlier rounds of bilateral diplomacy over the years, many as these were, aimed at normalising relations had either been futile or resulted in failure. Lately, several international actors have played a significant role in prompting a new round of dialogue. However, given the previous failed attempts at resolution and Delhi’s continued resistance to international intervention in what it considers a bilateral issue, there was some pessimism about the role of further dialogue. The challenge therefore was in not only sustaining this new round of dialogue but also ensuring that it is insulated from the day-to-day setbacks that have often derailed the process in the past. A lot has been achieved here in a relatively small period of time.
27. The major breakthrough was to engage the civil society of J&K in the process. The cooperation between the civil state and the state increased and resolution of the problem is no longer only the responsibility of the state � be it the centre or the state. The involvement of the principal stakeholders � people was gaining ground. It is this that was the greatest achievement and it should not be let to slip away.
28. We are now at the threshold of our third step: empowering the legitimate democratic institutions of the state to the extent that they are not manipulated by anyone. For instance, if the current or future legislature of the state that has been democratically elected makes recommendations that are within the purview of the constitution of the state and the country, it is obligatory on the part of the Centre to seriously consider the proposals.
29. To supplement the peace process, make it sustainable, and catalyse its pace, the PDP-led Government, in consultation with the Government of India, decided to proceed with economic reconstruction in a manner that is acceptable to all. The basic premise is of the new strategy is peace through economic reconstruction. The reconstruction of the J&K economy has been designed in a manner that supports the transition from conflict to peace through the rebuilding of the economic framework.
Chapter II
The Contours of Resolution
Setting the stage for Resolution: Demilitarisation
30. Prior to conceiving and debating the issue of resolution and outlining its contours, it is imperative we create an enabling environment for it. This would be the phase where mental, material and motivational reconciliation takes place on both sides. The Indian nation-state must make up its mind that the only way to forward is the non-military way. There is no room for armed interventions in J&K. If there is one lesson that has come through in the last 15 years of militancy it is that the gun is not solution � be it in the hands of the army or the militants.
31. If this is the basic premise, then a decisive move has to be made to reduce not only the physical presence of the armed forces in the state but also their influence in the decision making at a political and administrative level. Even in the sphere of operational matters of security, the armed forces should be a part of the J&K police hierarchy rather than being a parallel institution of power. This entire change is what we refer to under the rubric of “demilitarisation”.
32. To be sure, demilitarisation is first about the mind-set and then about the withdrawal of troops in the state. It has an operational, and a symbolic aspect to it, besides having a strategic objective. The simple fact of withdrawal is indicative of the preconditions for resolution and resolution-oriented measures. It symbolises a conceptual change in governance by the government, a growing leadership confidence in the state, and a politically courageous pro-active leadership at the national level.
33. Further, the symbolism of demilitarisation is that the balance of power on governing, which has since the elections of 2002, titled in favour of civil institutions, should now lead to a situation where the democratic and civil society institutions are now given full charge of the situation to consolidate the peace process. At this crucial juncture, when public confidence is waning in the whole process, only a resolute effort propelled by political wisdom and vision could restore it.
34. It also needs to be emphasized that not only is a complete withdrawal of troops a pragmatic need, it is also a strategic objective. It needs to be understood that a withdrawal of the armed forces from all civilian areas, will create and enhance the stakes of the people in the peace process.
35. The process of demilitarisation will then create pockets of peace along with it and there can be no better way of generating an organic movement of peace than this. As such, the term demilitarisation refers to a nuanced process that not only has an impact on the ground at the Line of controlal, and state level; it also has national and international ramifications. The former strengthens our claims and the latter our case.
36. And above all, the move towards demilitarisation has to be seen, and made to be seen, in the context of the larger paradigm of resolution rather than the probability of increased violence in the state. This is based on ground realities.
37. The enabling legislative part of demilitarisation relates to Armed Forces Special Powers Act (AFSPA). For almost two decades AFSPA has been in force in the State. There is no justification for this to operate any further and must be repealed to enable normalisation to take root. Its operation and enforceability have no bearing to the level, scale and intensity of violence in the state. The most important fall out of this will be that it will empower and facilitate the State Government in assuming its full role in revitalizing and pushing forward the control of civil society over the governance of the state.
Jammu & Kashmir Issue: Challenges
38. There is no denying the fact that a lot of complications in the issue exist with the intra-state relationships between Delhi and Srinagar and between Islamabad and Muzaffarabad[1]. These intra-state relationships are further compounded by the emergence of a host of political parties and militant groups on all sides of the conflict. Yet another factor in the mix is the Kashmiri diaspora, whose involvement has witnessed noticeable ascendancy in the post-Cold War period.
39. In all these discourses � Indian, Pakistani, international � the only viewpoint that has not been adequately highlighted is that of the people of Jammu and Kashmir. There, of course, is the argument for the inclusion of the people of Jammu and Kashmir into the resolution process to ensure that India and Pakistan do not walk away from the negotiating table too easily in bilateral talks. The problem is that the heterogeneity of views from within Jammu and Kashmir have become an easy excuse for their exclusion. As such there is need for a well-articulated set of views to emerge from the state that can form the basis of bilateral and international dialogue. We are making an effort to fill this most critical gap.
40. Conceptually, the challenge in J&K is to integrate the region without disturbing the extant sovereign authority over delimited territorial space. There is no need to negate the significance of the line of control as territorial divisions but it is imperative to negate its acquired and imputed manifestations of state competition for power, prestige, or an imagined historical identity. The idea is to retain the former and change the latter. Therein lies the key to the solution of J&K dispute. And one way to do so, is through economic integration.
41. To put the issue in analytical terms, we have to find ways and means of “sharing sovereignty". This makes it “more than an alliance" (where "alliance" means that a group of nations forms a selective agreement without the need of giving up relevant pieces of sovereignty). Yet there is no need or commitment to develop a common plan of political merging.
42. The operational challenge in J&K is to establish innovative international institutional arrangements that have a political, economic and security character. The two countries have to resolve the very difficult problem of “domestic” integration within a split international political and economic structure. Our basic premise is that the search for solution to the issue of Jammu & Kashmir is a search for an inter-nation state institutional arrangement that preserves sovereignty of the two nation-states but still has a supranational basis. This is possible by giving the institutional arrangement an economic, rather than a political, basis. To redefine the concept, in addition to being the territorial limits, a border of an line of control is a barrier to people, commodities and capital. The idea is to remove the barrier � or to put it more accurately � let markets override these boundaries.
43. This approach of according primacy to the economic over political, in some ways, turns the current paradigm, on its head. Due to historical reasons the entire state of J&K remains an important political, though not an economic, partner of both India and Pakistan. This fact can be attributed mostly to the heritage of partition. Even as political significance is paramount for both, economic links between India and J&K and Pakistan and POK are limited. The political significance of two parts of Kashmir to their respective mainlands is disproportionate to their economic significance.
44. Our basic premise is that the time has come to work out some form of integration and move forward. Even though the integration design may appears to be constitutionally and legally incomplete and politically premature, a start has to be made simply because the cost of not doing it will be much higher than the cost of implementing it.
45. It is not necessary to work out a full architecture of integration. It has to start with a some critical steps. For instance, the euro nations are being forced to achieve more and more integration in the future because the single currency management requires a growing degree of political and economic harmonization. At the same time, such a "convergence by necessity" does not imply that a real "Political Union" will be automatically born.
46. In view of the past history, the stated positions and the emotional surcharge a one-point-one-time solution for resolution of the conflict is a near impossibility. What is required is a sequence of measures, which would resolve the situation. These initiatives need to be less dramatic and inciteful than a plebiscite which would inevitably carry a huge baggage of rhetoric and arouse all the polemical furies. What is needed is a practical, step-by-step extrication of the state from current impasse towards a resolution.
47. In this context, it is proposed to move step-by-step, taking the path of least resistance and build confidences as we go along. Each move, small or insignificant as it may be, will have to be a part of a larger resolution design with a broad end-result in view. Depending on the nature of successes, the course can be modified and calibrated depending on the emerging political situation.
48. At a practical level, it should be obvious that the J&K issue has not been and cannot be solved on the basis of the exclusively on an intra-state level (i.e within India or within Pakistan). It requires a combination of intra-state measures (across India and Pakistan) with inter-state and supra-state (international) measures. Thus, it would seem prudent to advocate a three-step approach to resolution of the issue � introducing fundamental principles of a solution, which would reduce uncertainty and provide a ‘road map’; creating a dual power-sharing arrangement, which would be based on equal relationships between people of J&K across the border at both sub-state and national levels; and combining this power-sharing arrangement with regional and national integration.
49. It needs to be appreciated that political positions range from self-determination and sovereignty, secession and territorial integrity, partition and co-existence, and also democratic methods of conflict resolution and management based on respect of individual and group rights.
50. It would be useful to mark the material difference between the stands of India and Pakistan vis-�-vis the State of Jammu and Kashmir. India claims that the entire State is a part of Indian Territory. Its constitution (Article 1) as well as the Constitution of Jammu and Kashmir (Section 3) provides so. Its claim is based on the Instrument of Accession and the ratification of accession by the Constituent Assembly of the State. On the other hand, Pakistan does not claim that the State, or even that of the State which is under its control, is a part of Pakistan. It is so because there is no treaty or instrument executed between the State and Pakistan that could support any such claim of Pakistan. Pakistan’s Constitution, therefore, does not include the State or any part thereof in its territories (Article 1 of the Constitution of Pakistan). Pakistan’s only limited claim is based on its alleged right to administer the part of the State under its control by virtue of UNCIP resolution. However, there are provisions in the Constitution of Pakistan which make it mandatory to support the ideology of the State’s accession with Pakistan.
51. Briefly stated, India’s claim is based on the assertion and recognition of a fact, whereas Pakistan’s traditional claim was based on the declaration and pursuit of a desire. The leaders and diplomats of Pakistan, no longer advance the claim that Pakistan expects, as a matter of right, that State should accede to it. They have traditionally taken the ground that let the people of the State decide who they want to go with. If their decision turns out to be against Pakistan, so be it.
52. However, there is a need to meet the moral argument advocating ascertainment of people’s will. The question is, how this “will” can be ascertained. The following methods commend for consideration:
a. A plebiscite held simultaneously throughout the entire State of Jammu and Kashmir.
b. A plebiscite held in stages in different specified regions of the State.
c. An election held under international supervision in both parts of the State to choose representatives for holding negotiations regarding the future of the State with both India and Pakistan.
d. An election held in both parts of the State to choose representatives who would then hold negotiations with their own country.
e. The framing of a broad frame-work on the future of the two parts of the State to be formulated by India and Pakistan.
f. The elected representatives of each part of the State would then hold negotiations with their respective country for a resolution framework within the given parameters.
1. The broad spectrum of public opinion, gathered from the elected and un-elected representatives of different sections of society, in each part of the State, could be forged into a consensus within their own respective country. The two formulations emerging from the two parts could then be discussed between India and Pakistan for a workable settlement.
2. So far as options (a) and (b) are concerned, they will not be acceptable primarily because they are based on the plea of religious divide and two-nation theory. India, being a secular country with diverse religious communities, can ill-afford to accept another partition based on religion. Even Pakistan recognizes the fact that UN resolutions on this subject are not mandatory and are outdated. Such solutions may jeopardize the strategic interests of both the countries in the region and a change borders is not acceptable to either country. Option (c) also does not appear to be practicable. There are too many imponderables involved in the game. Besides, this may not lead to an equitable or just conclusion � much less a consensus � because members of a particular religious community or region may dominate the outcome of the negotiations. Option (d) would fail in case of our part of the State, where the three regions Jammu, Kashmir and Ladakh, may each demand irreconcilable goals in a formal negotiating process. Option (e) is more practical and has a precedent in Ireland. But Irish situation was not as diverse and region � centric as is the case in our part of the State. In our view option (f) is the most practicable and least complicated way out.
3. Our aim is not to discuss the complexities of history and geopolitics, but instead, to shift the focus to more practical policy-oriented discussion of a possible solution to the J&K issue. It is argued that solution of the J&K issue must be built on three essential elements:
a. introduction of clearly defined fundamental principles on which the solution must be based;
b. creation of a proper system of integration between the state across the borders backed by institutional arrangements; and
c. the combining of this arrangement into the framework of Indian and Pakistan polity.
4. Being fully conscious of the shortcomings of exclusive reliance on intra-state solutions, it can be argued that in order to achieve a stable, sustainable and just solution to the J&K issue, we should combine intra-state measures (decentralisation and power-sharing) with inter-state and supra-state measures. This approach, which is underlying the concept of self-rule is the only way that would eliminate the sources of ethno-territorial conflicts, entrenched in the traditional notions of sovereignty, self-determination, national and ethnic borders.
Chapter III
Self-rule: Concept, Design and Operation
5. Self-rule encompasses the society, the state, and the economy. It comprises a nexus of multiple loyalties of an individual as a member of the society, duties and rights of the citizen in a reciprocal political arrangement with the state, and the role of the individual as a producer and consumer in the economy.
6. What sets apart "self-rule" from "autonomy" is the political context in which they are conceived and operate. Self-rule refers to autonomy from the nation-state of India, whereas autonomy connotes relative autonomy from the Government of India. The two are vastly different in substance and style. The change -- from “autonomy” to self-rule” -- means is a fundamental shift in the terrain of political discourse and the existing status of the Kashmir issue.
7. Autonomy refers to empowerment of the Government of Jammu and Kashmir vis-a-vis the Government of India. As such it becomes a part of the centre-state debate in the Indian federal set up. Self-rule on the other hand refers to the empowerment of the people of Jammu and Kashmir, vis-a-vis the nation of India.
8. Further, autonomy is for an institution of governance, self-rule is for a region, or geography. Therefore, while autonomy doesn’t have a territorial element to it, the concept of self-rule has an element of territoriality to it. This is a reasonable compromise between demanding a new state and redefining the existing one. As such, self-rule gets a pan-Kashmir dimension. It is about the Kashmir on either side of the line of control. It is a trans-border concept rather than a local domestic issue which autonomy is.
9. Self-rule seeks to regionalise the concept power, while autonomy seeks to move it across levels of government. This distinction and its operational importance is very significant in the historical context of J&K. The experience has been that most governments formed in the state have been severely compromised as far as legitimacy -- J&K where peoples mandate is often vitiated -- is concerned. Hence, even if the government is empowered that power has never been exercised in a genuine manner.
10. Self-rule has four separate components: autonomy, control, legitimacy and identity. Autonomy refers to the independence a state has in making policy. Control refers to the actual ability of the state to produce the outcomes it desires. Legitimacy refers to its process through which the people in power have reached that position. Identity refers to the capacity of the state to endow people with an overriding sense of who they are as a collective group.
11. The problem in J&K has been that while it has been fairly autonomous, it has been ineffective in bringing about the results it desires. It lacks control. The problem with the pure autonomist viewpoint is that it is confuses autonomy with empowerment. The fact is that autonomy is only a framework, not an empowerment. Empowerment of people comes from having instrumentalities of control and then having the legitimacy to exercise those. And of course, the element of identity puts it all together.
12. Self rule as a political philosophy can be articulated around the conception of federalism and confederation that allow for sharing of power between two levels of government, for the sharing of sovereignty in a coordinated but not subordinated to one another, each exercising supreme sovereignty in its constitutional prerogatives. When Indian Independence Act was passed and the two dominions of India and Pakistan came into being, J&K became an independent country. It is for the reason that J&K fell in the category of fully empowered Indian States. It is this sovereign status of the ruler of the State that is supposed to provide legal foundation to the instrument of Accession with the dominion of India.
13. The relevant provisions of the Instrument of Accession with regard to the status of the State and the retention of its internal sovereignty are as under:
a. “7; nothing in this instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter any discretion to enter into arrangements with the Government of India under any such future constitution.
b. 8; nothing in this instrument affects the continuance of any sovereignty in and over this State, or save as provided by or under this Instrument, the exercise or any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State”.
66. There is credible body of thought, which holds that the State retains the internal sovereignty despite executing the Instrument of Accession. Sovereignty was divided between the Union of India and the State � external or over-arching sovereignty vested in the Union and internal sovereignty remained with the State. The Constituent Assembly of Jammu and Kashmir always maintained that State had retained internal sovereignty. Even the Delhi Agreement of 1952, clearly states the same:
a. “In view of the uniform and consistent stand taken up by the Jammu and Kashmir Constituent Assembly the sovereignty in all matters other than those specified in the Instrument of Accession continues to reside in the State, the government of India agreed that, while the residuary powers of legislature vested in the Centre in respect of all States other than Jammu and Kashmir, in the case of the latter they vested in the State itself”.
67. The Instrument of Accession was given the constitutional formulation by and under Article 370. Article 370 provided that it could be amended or abrogated by the President of India only if so requested by the Constituent Assembly of the State. The Constituent Assembly of the State ratified Accession on 15th of February, 1954 and also resolved that Article 370 should be retained in its present form. Accordingly, Article 370, which was originally supposed to be temporary, became a permanent feature of the Constitution of India and a bridge between the Union and the State. It cannot now be repealed and amended. Assuming, without conceding, that it is repealed, it will have wide ranging consequences.
68. Article I of the Constitution, which declares the State to be a territory of India, has been made applicable to the State only by virtue of Article 370. If Article 370 is repealed, Article I will cease to apply to the State. Thereafter, the only relation between Union and the State will be the Instrument of Accession. That will revive many controversies including the issue on the provisional or conditional nature of the Accession.
69. In its essence, Self-Rule is based on the premise that the constitutional architecture and political institutions of Jammu and Kashmir must be rooted in the cardinal principle that power must, in word and deed, be exercised by the citizens of the State.
70. Self-Rule, therefore, has two dimensions:
a. The scope within which a community or a society can decide and administer its own affairs. This is a question of extent of powers. Every State, by definition, is sovereign. Yet, however, it may be sharing its sovereignty with various political and geographical units of which it may be constituted. There are situations where a state may be exercising over-arching and external sovereignty whereas internal sovereignty may be vested in its constituents. In such a case, the state, commonly known as country, exercises powers over such subjects as defence, security, foreign affairs and communications. These are the powers which ensure the integrity and unity of a State including all its constituents. In this system, all other affairs are left in the charge of constituents, over which they exercise internal sovereignty. Generally speaking, this system is known as federalism.
b. The second dimension of Self-rule relates to the manner in which sovereign power is exercised. If this power is exercised without the will, representation and participatory involvement of people, there is no Self-rule. This dimension is the process and method in which powers of the State and its constituents are exercised.
71. In view of the terms of the Instrument of Accession executed by the Maharaja of the State with the dominion of India and the provisions of Article 370 of the Constitution of India, the Union of India is possessed with the over-arching external sovereignty over our State, whereas internal sovereignty remains vested in the State.
72. Self-rule is aimed at providing the central element for a comprehensive architecture to be devised for the final and strategic settlement of the Kashmir issue. Self-rule will not be a mid-point in a journey or a tactical or evasive prescription. Instead:
a. Self-Rule must also form the basis of relationship between the people of Pakistan Administered Kashmir and Pakistan.
b. Self-rule will entail the rolling back of, and also retention of, various provisions of the Constitution of India made applicable to the State, according to the normative tests that meet the genuine requirements of both the Union and the State.
c. Self-rule cannot exist without adequate constitutional safeguards and necessary political will. It will mandate due co-operation and trust between the State and the Union.
d. Self-rule cannot sustain itself without a fair and realistic degree of self-reliance. It will, therefore, entail a policy and action of responsible, sustainable and universally accessible economic and human development, full mobilization and utilization of the resources of the State and a reliable and substantial fiscal support by the centre for valid reasons and on legitimate equitable grounds.
73. The most tangible results of the self-rule will be first evident in the creation of a particular networks in governance and economic arena, and also, more gradually, in the polity. The main agenda to start with would be economic affirmation -- the power to set up economic and financial institutions as required along with the necessary enabling legislations.
New Political Superstructure:
74. In line with the concept of sharing sovereignty and recognizing sub-regional needs and requirements, there has to be put in place a legislative system and structure. Given the complexity of the notion of representation and the multifunctional nature of modern legislatures, there is an incipient new rationale for an innovative set up. Of course, in our case, the added reason for going in for a multi layered representative system is that regional differences or sensitivities in J&K require more explicit representations, with the second and the third tier representing the constituent territories
75. Towards this end, the Legislative Council will be restructured to form the Regional Council of Greater Jammu and Kashmir. It will be a kind of a regional senate. Members of the Regional Council will be from J&K as well as from Pakistan Administered Kashmir. At present the legislative assembly of J&K holds 25 seats for representatives from Pakistan Administered Kashmir. These could be given up and held as Pakistan Administered Kashmir’s representation in the Regional Council. This will serve as a major cross-border institution, which will ensure long-term coordination of matters and interest relating to the state.
76. Moreover, such an institutional structure will provide a framework, within which certain matters between the two parts of the State and their respective mainlands, which need to be sorted out to infuse in people a sense of empowerment and a feeling of belonging. This will require devising an improved constitutional, political and economic relationship between the two parts of the State and their respective mainlands.
77. The Regional Council of Greater Jammu and Kashmir will have 50 members. The respective state assemblies of J&K and Pakistan Administered Kashmir shall elect 40 members. The remaining 10 members will be nominated, five each, by the Governments of India and Pakistan.
78. The Regional Council of Greater Jammu and Kashmir will be entrusted to ensure that the executive is functioning satisfactorily in all “cross-Line of control” matters and coordinate if there are inter-governmental initiatives especially in relation to matter like the operation of dual currency, creation of common economic space with specific reference to joint management of water resources and creation of a common energy market.
79. Within J&K, there are certain regional issues that have the potential of snowballing into a dangerous situation. Occasionally, voices are raised from Ladakh and Jammu for trifurcation of the State. PDP believes that the unity of the State reflects the essence of our secular culture, and its preservation is of the utmost critical importance, both on principle and for legitimate strategic reasons. Its unity is also in the enlightened self-interest of the people of all the regions and also accords with their wholesome historical character and experience. The reason, however misconceived, offered to justify the nefarious slogan for trifurcation is the alleged discrimination suffered by the people living in the regions of Jammu and Ladakh. It is, therefore, not only imminently desirable but practically mandatory to ensure that all the regions share a sense of equal and equitable empowerment.
80. The promotion of genuine sub-regional political and economic empowerment is certainly one of the crucial components of self-rule. Under the self-rule, institutional mechanisms are provided for that will convert unhealthy latent as well as patent regionalism into effective region building.
81. The three basic requirements for efficient policy towards constructive regionalisation are:
a. Building and strengthening of regional decision-making powers
b. Effective institution-building
c. Creation of economic networks
82. The recognition of sub-regionalization with the aim of improving inter-ethnic and inter-religious relations in the region is of paramount importance in the framework of self-rule. Empowered sub-regionalization, as distinct from administrative and bureaucratic decentralization, will ensure the co-existence of different ethnic, religious and linguistic groups in the region that is otherwise a constant cause of inter-ethnic and inter religious disagreements and tensions.
83. The building of effective structures of sub-regional democracy depends on the development of a strong economic relationship and on the political will to implement it. It would be desirable to find appropriate means of building a social consensus across the regions about the need for decentralization of political structures.
84. This can be done by creation of sub-regional councils as the third tier of the legislative system. While the national Parliament will have representations to the sovereign, the state assembly will continue to be the sub-national institution, the sub-regional councils within J&K will complete the representative character of the governance by bringing the territorial representation within the state. Effectively, J&K will be a regional federation. The federal system of government will mean that powers and responsibilities will be divided between the legislative assembly and the sub-regional councils.
85. All the regions must be brought to the conviction that regionalization is a process that makes a region stronger, not weaker. In addition to these, there are three development motives to promote the role of sub-regional councils.
a. Firstly, a regional structure is the best basis for allocating money (top-down perspective). When it comes to achieving pre-defined goals, a geographical approach is preferable to sectoral policies, which can otherwise get easily lost
b. Secondly, recent experiences show that the regional approach to the promotion of development is much more effective than the national or supra-national one (bottom-up perspective). Regions are a better environment for integrating a variety of particular interventions necessary for executing a development plan as they are closer to the citizens and to the particular characteristics of a certain area. This makes it easier to understand the challenges of the moment.
c. Thirdly, from the sustainable development perspective, regions are in the best position to co-ordinate and manage relevant activities on a horizontal level � with similar structures in other regions and even across borders.
86. In this context, sub-regional council will become the most important instrument for responding to development challenges. In parallel with economic integration in Greater Jammu and Kashmir and the decentralization of development trends, decision-making processes are shifting towards the regional and local levels in order to bring the instruments of regulation closer to the people and to the environment where events occur.
87. The appropriate division of powers between different levels of government can be addressed from an efficiency standpoint using the economics of multi-tier government. However, using the distinction between the allocation, stabilization and redistribution functions of government, stabilization and redistribution functions are best performed at the regional level, while the local function is usually best exercised at more local levels where it can respond to differences in preferences for public goods.
Economic Integration:
88. This comprehensive solution can be accomplished through economic integration and sharing of sovereignty without comprising sovereignty of either nation state. The key lies in institutionalised problem-solving mechanism, which would allow constantly transforming conflicts in a positive, non-violent and imaginative ways.
89. For a variety of reasons it often makes sense for the two parts of Jammu and Kashmir to coordinate their economic policies. Coordination can generate benefits across different segments of the economy. If the two parts of Jammu and Kashmir cooperate and set zero tariffs against each other, then both parts are likely to benefit relative to the case when both countries attempt to secure short-term advantages by setting optimal tariffs. This is just one advantage of cooperation. Benefits will also accrue if labour and capital movements across borders were to be were to liberalized, fiscal, financial sector policies and sectoral resource allocation especially towards agriculture were coordinated. Any such type of an arrangement will result in economic integration.
90. Depending on the political will, economic integration can be pursued in different degrees, deepening the process as we go along and as the system adapts to change. The process can be started by declaring the intention to establish common economic space and sign an agreement with a roadmap which envisages:
i. Establishing common economic space;
ii. Instituting a dual currency system
iii. Coordinated economic policy, harmonization of economic legislation and synergistic regulations
91. The process of economic integration of the two parts of Jammu and Kashmir can start with the weakest form of economic integration � a “Preferential Trade Agreement”. In the PTA the two countries, India and Pakistan would offer tariff reductions, though perhaps not eliminations, confined to the geographical boundaries of “Greater Jammu and Kashmir (GJAK)” and restricted it to some product categories. Higher but non-discriminatory tariffs, would remain in all remaining product categories.
92. Stage II would be to make GJAK a free trade area. It can be called a “Regional Free Trade Area”. Creating a bilateral free trade area will mean an agreement to eliminate tariffs between the two parts of J&K, while maintaining their own external tariff on imports from the rest of the world, including India and Pakistan. Because of the different external tariffs, the Regional Free Trade Area will have to develop elaborate "rules of origin".
93. In stage III, it can be agreed to eliminate tariffs between the two parts of GJAK and set a common external tariff on imports from India and Pakistan. This could be later applied to rest of the world. A customs union avoids the problem of developing complicated rules of origin, but introduces the problem of policy coordination. This can be followed by a common market establishes free trade in goods and services, set common external tariffs and also allows for the free mobility of capital and labour across countries.
94. At this stage, we can do with some innovation. Instead of looking for a monetary union, we may like to have a situation where the Indian and Pakistani rupees are both made legitimate currencies in the geographical areas of GJAK. A better description of this system is a “co-circulation of two currencies” in J&K. It is being proposed that Indian and Pakistani rupees should be the medium of exchange in J&K. To be more precise, it means, allowing circulation of the Pakistani rupee in the Indian part of J&K currency and circulation of Indian rupee in the Pakistani Administered Kashmir.
95. At the moment, circulation of national currencies of India and Pakistan coincides with the territorial frontiers of the two nation states. In other words, there is geography of money. But, to be clear and well informed, circulation of national currencies no longer coincides with the territorial frontiers of nation states. The idea being put forth here is in the realm of deterritorialization of money.
96. This proposition has to be contextualised in the transformation of today’s global monetary environment. The implications of deterritorialization for the survival of national currencies are only beginning to be understood. First, currency competition compels governments to choose from among a limited number of strategies, only one of which involves preservation of traditional territorial money. Second, a good number of national monies will indeed disappear, leading to an increasing population of regional currencies of one kind or another � a distinctly new geography of money. But, third, there is no sure way to predict what that new geography of money will ultimately look like. We have a fairly good idea of the principal factors that are likely to influence state preferences, but many configurations are possible and even probable. It also involves significant issues about the geography of Money. This facet has to be taken in account if we genuinely want cross-border trade to flourish.
97. If all this works well, finally, we can move to an economic union which typically will maintain free trade in goods and services, set common external tariffs, allow the free mobility of capital and labour, and will also relegate some fiscal spending responsibilities to a supra-national agency.
98. In principle, the process of integration includes three key components:
i. Trade component. By trade component we mean in fact trade regime or in practice elimination of trade barriers. It can be preferential trade arrangement.
ii. Regulatory component. This component has two dimensions � shallow and deep. By shallow dimension we mean that partners are solving issues related to trade, while deep integration means in fact that cooperation on regulatory issues goes beyond pure trade issues and concern economic issues
iii. Political component. At the moment this component is one of the most important one. In fact this aspect refers to the problem of striking delicate balance between liberalization at the national level and reaching certain level of supra-nationality in terms of managing different integration schemes. A lot of economic arrangements have to have a distinct political content.
99. The first one can be tentatively called “broad” integration embracing all districts of GAJK. This “broad integration” concept can result in establishing a common economic space. As this is done, a number of agreements can pave road to the closer integration like an Free Trade Zone Agreement. One of the steps towards a FTZ and custom union can be Agreement on the Single Agricultural Market. In fact formation of GK integration’s economic component can start form signing bilateral agreements on economic issues of two types: free trade agreements and agreements on production cooperation. These bilateral agreements can differ from each other in terms of coverage of goods, etc.
100. This logic behind these agreements has to be to re-establish production relations in a new economic environment which had been broken by the partition. At the same time “broad” integration has to have from the very beginning a strong political component (security cooperation, for example). The second tendency can be named sub-regional integration that is formation of different sub-regional groups. Appearance of different sub-regional projects can generate multi-speed integration.
101. It needs to be understood that GJAK is proposed to be formed as a regional organisation to facilitate political cooperation as well as promote cooperation between India and Pakistan, developing a road network linking Central Asia and India. In fact, the regional free trade area of GJAK will be an interesting example in a number of aspects. First, this grouping will not be dominated politically and economically by either India or Pakistan. If anything it will be dominated by market forces and prudent economic policies. In a strategic perspective this grouping of GJAK may become the nucleus of bigger regional arrangement.
102. The GJAK will face challenging geographic and economic circumstances, including the relatively small size of their economies; remoteness from world markets; long-term isolation from global technology and capital flows; heavily dependency on primary production, minerals, and other commodities; dependence on Indo-Pak economy (which would still be the largest market for their exports); and industrial structure from the legacy era that is hardly compatible with an open economy.
103. That’s why this organization has to be seen as a tool to create sub-regional market, which will facilitate overcoming their relative isolation from world markets, rapid industrialization and in the end contributes to sustained economic growth. These arrangements are in fact meant to intensify economic cooperation while the actual level of internal economic links trade is rather small.
104. It is important to recognize that though to start with economic integration can be pursued either through an intergovernmental approach, for it to contribute to the political resolution of the problem, it has to graduate from inter-governmentalism to super-nationalism, i.e., to economic integration with a supranational approach. Supra-nationalism implies that India and Pakistan agree to exercise some of their sovereignty jointly. Operationally, this means that a law passed at the regional level in those areas where the region is granted competence prevails over national legislation and is binding directly on both countries and citizens of those states. Only if this is done can economic integration through supra-nationalism be a stepping stone to a federal political structure or confederation or a more diversified political outcome in which sovereignty and power is shared at various levels and interacts in complex ways.
105. A key issue with supranational arrangements is ensuring the democratic participation of stake-holders, the transparency of supranational decision-making and the accountability of regional institutions. In their absence, the shift of sovereignty to supranational bodies may weaken democratic control and strengthen the political influence of groups able to organize effectively at the regional level. It is here that the Regional Council of Greater Jammu & Kashmir will play a critical coordinating role.
106. In addition to regional trade integration, we need to look at many forms of regional cooperation can take place around specific projects or thematic issues. Such sectoral cooperation can have advantages such as: decreasing duplication of functions in the two sub-national areas; enhancing efforts to deal with issues such as human, animal and plant diseases which know no borders; facilitating the sharing of regional resources and experience in activities such as research and training; or building a regional infrastructure. Characteristic for many of these activities is that they are regional public goods.
107. One can offer a number of examples of regional public goods, which can be defined as “public goods that must be delivered on the supranational level by the two sub-national governments acting in concert”. They include: financial market regulation issues; co-ordination of cross-border transport networks, telecommunications, power grids and data transmission; agricultural research and extension; law enforcement environmental management issues including watershed management, pollution, management of natural reserves and scientific research on issues of eco-zone management; public health issues including management of infectious disease and basic research on diseases endemic to a particular region. All these will be within the purview of the Regional Council of Greater Jammu and Kashmir.
108. The prospect of overall welfare gains from regional co-operation will make the negotiation of such agreements easier than trade agreements. Regional Trade Agreements can be a help in cooperating on non-trade issues. Three arguments are relevant here. First, Regional Trade Agreements can help in brokering regional cooperation agreements by putting more issues on the table and embedding them in a wider agreement, which may lower the transfers necessary to ensure that all parties feel they have something to gain from sustaining the agreement. Second, the habits of cooperation and frequent interactions at policy level generated by some Regional Trade Agreements may raise the degree of trust between parties, which was shown above to be important in reaching cooperative regional agreements. Third, regional cooperative agreements will often need specialized institutions such as dispute settlement procedures, and rather than custom-build a separate institutional structure for each regional agreement, it may be more efficient and effective to make use of the institutional structures of a Regional Trade Agreements
109. Given the fact that there is a demand by market actors for greater integration and that market actors perceive a significant potential for economic gains from extending market exchange within the region, the process of integration will eventually gather a non-political momentum. Market players will have an incentive to lobby for regional institutional arrangements that render the realization of these gains possible.
110. It needs to be clarified that while we are discussing the economic motivations for regional integration and the likely trade and welfare consequences of forming Regional Trade Agreements, the idea is to present ways and explore the extent to which Regional Trade Agreements can be used as a instrument to share sovereignty in the policy areas covered by the Regional Trade Agreements.
111. The other potential areas of economic cooperation are water, energy and transport sectors. Moving forward one area where significant synergies have to build and cooperation cemented is the area of energy. It is important that efforts are made to design and develop a regional energy market. The Greater Kashmir Regional Energy Basin, based primarily on hydro resources, should be able to provide modern and liberalised gas and electricity systems to the entire region and not just J&K alone.
112. The key to such a regional energy market based on international standards, transparent rules will be mutual trust. It will set the right environment for the optimal development of the energy sector in the region. Most importantly, it will make energy tradable and the joint agreement governing energy trade that can be visualized will substantially contribute to attracting investment into this strategic sector.
113. Where transport infrastructure is concerned, an integrated regional transport strategy, consistent with the trans-national networks and taking into account the pan-J&K corridors, can be an area of high priority.
114. Both India and Pakistan should also support, and indeed will find it useful to support, joint projects of regional significance and regional initiatives in the areas of environmental protection, science and technology, information and communication technology.
Constitutional Restructuring:
115. Finally, for self-rule to function effectively, there has to be a degree of restructuring the Constitutional relationship of the State with the Union. Based on normative test of harmful effect on the people of the State, the following constitutional restructuring should take place:
a. Article 356, which undermines the core of Self-rule i.e., the will and determination of the people to have a legislature and government of their own choice, elected democratically and based on their free exercise of adult suffrage has to be made non-applicable to J&K. Article 356 is treated, for legitimate reasons, with suspicion and consternation by even other states of the Union. In the State of Jammu and Kashmir, people have valid reasons to dread this provision even more. We need not count or mention the number of times the will and the choice of the people, though expressed through imperfect and, occasionally, even subverted and corrupted political processes, was thwarted in the State. This is a long and treacherous history � better left alone in this paper. Therefore, there is a compelling reason for rolling back Article 356 for that shall not only impart to people a sense of democratic security but shall also be in the enlightened national interest. However, if there is a real and present danger to the security or integrity of the Union or the State, there is already Article 352 which provides adequate machinery to take care of the situations of external aggression and internal disturbances. This is in addition to Section 92 of the Constitution of the State which vests, in essence, similar power in the Governor of the State. Section 92 can be amended to provide for situations beyond six months subject to certain safeguards. Here it may be recalled that Delhi Agreement of 1952 itself had recorded the position that both the State and the Union had regarded the extension of Article 356 to State as unnecessary.
b. Article 248 as applicable to the State in its amended form should confer concurrent jurisdiction on the State under (i) to legislate on the subject of terrorist activities.
c. Article 249, applied to the State in amended form, should be rolled back so that the Parliament cannot exercise legislative jurisdiction over a matter which, otherwise, falls under the State jurisdiction.
d. Article 251, in its application to the State, should omit reference to Article 249.
e. Sixth Amendment of the Constitution of the State which undermines its original scheme of a comprehensive and accountable executive (inclusive of the Head of the State) a critical component of Self-Rule, must be repealed. Prior to this amendment, Sadar-e-Riyasat, the head of the State, was elected by the State Legislature. The Sixth Amendment altered this position and provided for appointment and removal of the Governor by the President of the Union. The original provision imparted a great comfort to the people that the head of the State, being accountable to them, would act as their agent, free from any external and extraneous pressures or chain of command. Since the Governor has the power to dismiss the state government and dissolve the State Assembly under Section 92 of the Constitution of State, the issue whether he can be appointed and removed by the representatives of the people or by the Central Government assumes great political and psychological significance in the State. The appointment of the Governor by the Union Government is one of the important features of the Constitution of India which makes it less than truly federal in character. In the case of our State, the original constitutional scheme had enshrined a sound federal principle of election of the head of the State by State itself. The change in this scheme undermined the basic structure of the State’s Constitution and is legally suspect.
116. Be that as it may, despite this amendment, the provisions in Part VI Ch. II of the Indian Constitution relating to Governor were not made applicable to the State. Legally, therefore, the state legislature could anytime, by following the constitutional provision contained in Section 147 of the Constitution of the State, repeal the Sixth Amendment and restore the erstwhile scheme of an elected Head of the State. Prior to Sheikh�Indira Accord of 1975, this was the legal position. Sheikh Abdullah insisted for restoration of the erstwhile constitutional position viz-a-viz the office of Sadar-e-Riyasat and the Prime Minister. However, while Sheikh�Indira Accord postulated further discussions on this subject, actually Constitutional Order 101 was promulgated by the President under Article 370, adding the following Clause to Article 368 in its application to the State:
a. “[(b) After Cl (3) of Article 368, the following clause shall be added, namely:-
i. “(4) No law made by the legislature of the State of Jammu and Kashmir seeking to make any change in or in the effect of any provision of the Constitution of Jammu and Kashmir relating to:
1. appointment, powers, function, duties, emoluments, allowances, privileges or immunities of the Governor; or,
2. superintendence, direction and control of elections by the Election Commission of India, eligibility for inclusion in the electoral rolls without discriminations, adult suffrage and composition of Legislative Council being matters specified in Section 138, 139, 140 and 50 of the Constitution of Jammu and Kashmir.
3. Shall have any effect unless such law has, after having been reserved for the consideration of the President, received his assent”.
117. With respect to this proviso, relating to Governor, added to Article 368, the following points should be noted:
a. The proviso, limiting the powers of State Legislature, has been added to Article 368, which deals with the powers of the Parliament to amend the Constitution of India and not the power of State Legislature to amend its own constitution. The proviso is, therefore, totally and grossly out of place and ultra vires the constitutional scheme.
b. The power to amend State Constitution is vested in the State Legislature under Section 147. It permits the State Legislature to amend any provision of Constitution except a few specified provisions mentioned therein. The provisions in Part V of the Constitution of the State relating to Governor do not fall in the excepted category and the same can be clearly amended by the State Legislature repealing the relevant provision of the Sixth Amendment. No provision of the Constitution of the State, except the exercised specified provisions, can be made un-amendable, nor can this constitutional power of amendment be subjected to approval by the Union of India. This is for the reason that, to achieve that result, Section 147 itself would have to be amended. But Section 147 has been made un-amendable by the Constitution itself. That is why the title Sadar-e-Riyasat still finds place in this Article, though this office has been dispensed with under Sixth Amendment. Hence the proviso is ultra vires.
c. The State Legislature’s constitutional power of amendment is the core of empowerment or Self-rule of the State and this cannot be destroyed by an order passed under Article 370. This is a glaring example of colorable exercise of power.
d. Section 147 of the Constitution of the State confers the power on the Legislative Assembly to abolish Legislative Council. This power of the Assembly is un-amendable because Section 147 is itself un-amendable. Constitutional Order 101 on this ground is also ultra vires.
118. This provides another example how Article 370 has been used as a Vehicle for excessive and, sometimes, illegal intrusion in the domain of Self-rule of the State, instead of as a bridge to be used for necessary and wholesome purposes.
119. The assault on the constitutional power of the State Legislature, grossly manifested by the above discussed Constitutional Order passed under Article 370, clearly establishes the necessity for incorporating some fool-proof provisions in the Constitution of India and J&K in the event a new scheme is devised and accepted pursuant to the discussions of the working group appointed by the Hon’ble Prime Minister.
120. It is therefore imperative that the relevant provisions of Constitutional Order 101 be rolled back which, in any case, is ultra vires the constitution. Instead, the erstwhile scheme prevalent prior to Sixth Amendment be restored.
121. We further propose that the Head of the State be elected from the regions of Jammu and Kashmir by rotation. This shall give to the people of all the regions an equal and equitable sense and feeling of empowerment and shall strengthen their bonds.
122. An argument is advanced by certain quarters that Governor is the only link between the Union and the State and that if the Head of the State is elected rather than appointed by the President of India this link will break. This is an argument of mistrust. Union must respect and trust the collective judgment of the people of the State rather than rely only on the appointment of non-state subject as a guarantee of linkage between the Union and the people of the State. Besides, there is sufficient element of linkage and control in Articles 256 and 257 of the Constitution of India, which give the power to the Union to issue directions to the State to behave in a manner that accords with the executive power of the Union.
123. When Article 370 was inserted in the Constitution of India, it was designated as temporary. It was for the reason that power to decide whether this provision should remain in force or whether it should be modified was vested with the Constituent Assembly of the State. This Assembly decided in 1954 that the provision should remain in force. Hence this became the permanent provision of the Constitution of India. The Parliament of India should therefore, remove the phrase “temporary” and substitute it by the word “special” in Article 370.
124. Under Article 370 of Constitution of India certain entries of schedule 7 List I (Central List) and List III (concurrent list) have been made applicable to the State. List II (States List) not be made applicable to the State, because the residuary legislative powers including those in List II are vested in the State Legislature anyway. Thus the legislative powers under entries 17 and 23 of list II, relating to water and mines, vested in the State Legislature. In the Central list, entry 54 vests in the Parliament, the power to make laws with respect to mines and under entry 56 of the said list, Parliament has power to make laws with respect to inter-state rivers, provided that the development of such mines and rivers is declared by parliament to be expedient in the Public interest. Clearly, therefore, the jurisdiction over rivers Chenab, Jehlum and Sindh is vested in the State. In the view of PDP, even if Union of India is bound to respect Indus Water Treaty, the least it can do is to offer due and proper compensation to the State for surrendering the use of its rivers to Pakistan. All legal provisions, if any, which stand in the way of State getting its legitimate due must be overcome.
125. As is well known, while the executive authority of the State is constitutionally vested in the Governor/Council of Ministers, factually the bureaucracy exercises it. The All India Services Act, 1951 has been extended to the State, as a result of which officers belonging to All India Services cadre hold all-important positions in the civil and police administration. The local human resources are under-utilized and are occasionally not trusted to hold sensitive positions in the State Executive. Any idea of Self-rule is incomplete without providing that the executive authority of the State is actually exercised by the State subjects. It is, therefore, proposed that All India Service Act, 1951 and Article 312 be rolled back and the local human resources are provided clear and unhindered opportunity to develop their full potential and it is trusted to manage the affairs of the State. In so far as, the Central statutes extended to the State are concerned, the same can be reviewed on merits, on case-to-case basis.
126. It should be evident that the scheme of regional federalism of self-rule, all religions and groups are taken care of it. What remains are the minorities. Beyond participation across regions, it has to be the effort of the governance structure as well as the legislative system to maximise the participation of ethnic minorities. Principal among these are the Kashmiri Pandits who have an important role to play in the present and future of the State. The return and the rehabilitation in the valley of this ethnic minority is critical to the peace process. Beyond the peace process itself, Kashmiri Pandits are an integral part of Kashmiri society and essential for the strengthening of the composite, but, pluralistic culture that has defined Kashmir historically.
127. In the existing situation, the return and rehabilitation of economic and political migrant and recognition of their rights will not only be the index of normalcy in the state but also of democratic maturity of our civil society and state institutions. In this context, it is proposed to guarantee minority representation for kashmiri pandits in the state assembly.
128. To foster minority confidence in public institutions as well as ensure responsiveness of these institutions to all segments of the kashmiri society, it is also proposed to have a Minority Ombudsman for the state. The Ombudsman will aim to create and expand the availability and effectiveness of institutions addressing minority issues in J&K. As a key institution, ombudsman will play a significant role in minority issues, especially, in promoting good practices in minority governance. The major contribution of this institution will be to enhancing the understanding of issues surrounding migrants and other migrant minorities and ensure their integration into society and participation in public life.
129. A number of people and organisations have suggested setting up of a Truth and Reconciliation Commission in and for J&K. To help the civil society achieve its earlier integration this can be a very useful initiative. The TRC is a commission tasked with discovering and revealing past wrongdoing by a government, in the hope of resolving conflict left over from the past. While they are occasionally set up by states emerging from periods of internal unrest, South Africa’s Truth and Reconciliation Commission is generally considered a model Anybody, who felt they had been a victim of violence could come forward and be heard at the TRC. Perpetrators of violence could also give testimony and request amnesty from prosecution. The TRC, if set up with honesty and sincereity, can be was a crucial component of the transition to civil strife towards harmony.
130. To conclude, notwithstanding anything � any formulation, proposal, intention or gestures, one thing is very clear: status quo cannot be maintained in the J&K. The assurances and promises, extended to the State by Union of India, from time to time, are a part of the history. All those assurances intend to convey to the people of the State a solemn pledge that they can enjoy internal sovereignty or Self-rule in the State.
131. Self-rule and its associated formulations in the sphere of polity, economy and society of greater Jammu & Kashmir will not entail major constitutional and political restructuring in India. This formulation of Self-rule will prove efficacious and beneficial to the extent if it is accompanied by other concomitant measures. As part of the settlement process with Pakistan, both the countries should proceed to improve the lives of the people of the entire State.
132. Once this formulation of self-rule is accepted in and by India, it can be discussed with Pakistan for seeking a similar dispensation for the people living in Pakistan Administered Kashmir and Northern Areas. Along with the bilateral negotiations between the two countries, it will be desirable to have institutional arrangements between the two parts of Kashmir to work out a durable supra-national institutional structure. This is an essential part of the holistic concept of Self-rule.
Main Proposals
The comprehensive formulation of self-rule has three sub-components:
1. A new political superstructure that integrates the region and empowers sub-regions:
a. The centrepiece of the governance structure under self-rule is the cross border institution of Regional Council of Greater Jammu and Kashmir. The Regional Council will replace the existing Upper House or the Legislative Council of J&K, and will be a kind of a regional senate. Members of the Regional Council will be from J&K, as well as from Pakistan administered Kashmir, as well as nominees by the Government of India and Pakistan. This will serve as a major cross-border institution, which will ensure long-term coordination of matters and interest relating to the state.
b. To empower various sub-regions within the J&K state, a tier that of sub-regional councils, will be added to the domestic legislative structure. While the national Parliament will have representations to the sovereign, the state assembly will continue to be a sub-national institution, the sub-regional councils will complete representative character of governance by bringing in the territorial representation in the state.
2. A phased economic integration that transcends borders:
a. A critical element of self-rule is the economic integration across the line of control. For the process of integration, the following roadmap can be envisaged:
iv. Establishing common economic space;
v. Instituting a dual currency system
vi. Coordinating economic policy, harmonization of economic legislation and synergistic regulations;
2. The process of economic integration of the two parts of Jammu and Kashmir can start with the easiest form of economic integration � a “Preferential Trade Agreement”. In the PTA the two countries, India and Pakistan would offer tariff reductions, though perhaps not eliminations confined to the geographical boundaries of “Greater Jammu and Kashmir” and restricted it to some product categories. Higher but non-discriminatory tariffs, would remain in all remaining product categories. Stage II would be to make GJAK a free trade area. It can be called a “Regional Free Trade Area”. Creating a regional free trade area will mean an agreement to eliminate tariffs between the two parts of J&K, while maintaining their own external tariff on imports from the rest of the world, including India and Pakistan. In stage III, it can be agreed to eliminate tariffs between the two parts of GAJK and set a common external tariff on imports from India and Pakistan. This could be later applied to rest of the world.
3. This can be followed by a common market establishes free trade in goods and services, set common external tariffs and also allows for the free mobility of capital and labor across countries.
4. Further, instead of looking for a monetary union, a new system of “Dual Currency” will be created, where the Indian and Pakistani rupees are both made legitimate legal tenders in the geographical areas of GJAK. A better description of this system is a “co-circulation of two currencies” in J&K. It is being proposed that Indian and Pakistani rupees should be the medium of exchange in J&K. To be more precise, it means, allowing circulation of the Pakistani rupee in the Indian part of J&K currency and circulation of Indian rupee in the Pakistan administered Kashmir. This has to be done if we want cross the line of control trade to flourish.
5. Our vision is to move towards an economic union which will maintain free trade in goods and services, set common external tariffs, allow the free mobility of capital and labor, and will also relegate some fiscal spending responsibilities to a supra-national agency.
6. Consistent with our legislative design, the economic integration will be deepened through sub-regional integration; that is formation of different sub-regional groups. Appearance of different sub-regional projects can generate multi-speed integration.
3. Constitutional restructuring that ensures sharing of sovereignty without compromising political sovereignty of either nation state.
a. For Self-rule to operate effectively, Article 356, which undermines the core of Self-rule and has to be made non-applicable to J&K. In a similar vein, Article 249, applied to the State in amended form, should be rolled back so that the Parliament cannot exercise legislative jurisdiction over a matter that, otherwise, falls under the State jurisdiction.
b. Sixth Amendment of the Constitution of the State that undermines its original scheme of a comprehensive and accountable executive (inclusive of the Head of the State) a critical component of Self-rule, will have to be repealed. Prior to this amendment, the State Legislature elected Sadar-e-Riyasat, the head of the State.
c. The proviso, limiting the powers of State Legislature, has been added to Article 368, which deals with the powers of the Parliament to amend the Constitution of India and not the power of State Legislature to amend its own constitution. The proviso is, therefore, totally and grossly out of place and ultra vires the constitutional scheme. The State Legislature’s constitutional power of amendment is the core of empowerment or Self-rule of the State and this cannot be destroyed by an order passed under Article 370. All India Service Act, 1951 and Article 312 be rolled back and the local human resources are provided clear and unhindered opportunity to develop their full potential and it is trusted to manage the affairs of the State.
d. It is a part of the design of self-rule that Head of the State be elected from the regions of Jammu and Kashmir by rotation. This shall give to the people of all the regions an equal and equitable sense and feeling of empowerment and shall strengthen their bonds.
[1] For the past five decades India, Pakistan and J&K have been involved in high stakes negotiations for resolving what is called the “Kashmir dispute”. Shorn of all its complexity, it is essentially related to the two countries effort to define their respective borders in a situation where control of territory has not meant so much a control of resources as improved strategic positions. Strong-arm politics, economic pressures, shadowy backroom deals, nationalist sentiments, public dissatisfaction and an environment of mutual mistrust have marked this process. The resolution of the border issue peacefully and transparently would have a huge positive impact on regional security, economic cooperation, ethnic relations and efforts to combat arms trafficking and religious extremism. But progress has been slow, and no immediate breakthrough can be seen in an all too often antagonistic process.
The current difficulties can be traced directly back to the partition in 1947. That process in relation to J&K followed neither natural geographic boundaries nor strict ethnic lines. This has been further compounded by the repeated efforts at redefining Indian nationalism and the pervasive search for an identity of Pakistan’s nation state. All these factors combined to create a complex stew of territorial claims and counterclaims. An artifical and temporary line � the line of control � has become a border, de jure and de facto, that has over the years become internationalised with a major significance in international politics.
Long-standing industrial and transportation links have been disrupted and discarded. Border crossings are banned throughout the region. Demands for visas, only available in capitals and at a high price for local people, have made freedom of movement increasingly difficult. As cross-border travel became difficult, interaction between populations that once shared many aspects of a common culture and way of life has become impossible. As new lines are drawn on the map, so new borders and new stereotypes are being created in people’s minds. Ethnic populations that had long enjoyed access to friends and family just across borders were now isolated and often faced visa requirements and other access difficulties. Much of the population views these new restrictions with hostility and has felt the disruption in traditional patterns of commerce and society acutely.
Limiting cross-border movement has, in the recent past, been done in the name of security, yet few border services are sufficiently proficient to prevent determined traffickers or terrorists from crossing frontiers. And the means used to secure borders have had a directly negative impact on the lives of local people. There are regular reports of deaths in unmarked minefields, shooting of villagers who have strayed into foreign territory, and huge social and economic costs from the destruction of cross-border transport infrastructure.
Resolving this lingering and substantial border disputes has become critical. Bilateral relations have often been uneasy for a variety of reasons, and tensions over borders have only made cooperation in other areas, such as trade, impossible. The worst part is that this disputes has also become an important domestic political issue. Concessions made in border negotiations can be rich fodder for political oppositions and this has served to further constrain the latitude of governments to compromise.
The resolution of territorial disputes is obviously emotional and goes directly to each country’s definition of national interests. No nation wants to make territorial concessions. Especially when it can have strategic implications. Nonetheless, the failure to resolve or atleast bypass such territorial issues has prevented the two neighbours from normalising relations and dealing with pressing social and economic issues. Thus it is important that any territorial differences be resolved or bypassed on a mutually acceptable basis in accordance with economic rationality and political sagacity.
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