July 10, 2001


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Arvind Lavakare

Labyrinth of indifference on J&K

With D-Day just four sundowners away and Vajpayee on his best Nobel Peace Prize behaviour, the fact can now be asserted without fear of contradiction. India's various opinion makers let the nation down in the long run-up to "the summit" with their deathly silence on the sacred document named as the Constitution of Jammu and Kashmir, in force from January 26, 1957.

In the thousands of words of hype that gushed from India's public platforms on the summit, there was not one on that document --- as though it were a tome on which a shroud was best suited.

In reality, that legal document is the only one to proclaim to the world, "The State of Jammu and Kashmir is and shall be an integral part of the Union of India." (Section 3). Further, Section 147 of the J&K Constitution prohibits any amendment of Section 3, while Section 147 is itself debarred from amendment! That last fact represents the seal of irrevocability on J&K being an integral part, meaning, according to the Oxford dictionary, "necessary to the completeness" of India.

An e-mail from a senior citizen reminding the prime minister and his home minister about the above constitutionally enshrined affirmation and related facts has encountered a deathly silence; it is either lurking in our bureaucracy's labyrinth of indifference or else has already been emptied into the trash can -- unless someone has gone by the rule book, taken a print and put it away as another paper in some file of oblivion.

Though the government did make pronouncements in the last few weeks about J&K being an integral part of India, they were put forth either in terms of the Constitution of India or by virtue of the parliamentary resolution of February 1994.

Both the above two propositions are infirm.

Thus, Rajinder Sachar, a former chief justice of the Delhi high court, has been quoted as opining, 'Technically, the 1994 resolution is not an act or a statute. It has no legal validity and it expired with that Lok Sabha.' Experience also proves that parliamentary resolutions are not mandatory. On November 21, 1964, for instance, the Lok Sabha agreed, 'In future the House should be adjourned only when it was necessary in order to enable members to take part in the funeral of a sitting member irrespective of the fact whether the deceased held office of a minister.' (Pg 357, Parliamentary Procedure, Volume I, by Subhash C Kashyap.)

Yet, Parliament not conducting any business because of the death of this MP or that has become a standard practice, hasn't it? And then there was the solemn resolution on the golden jubilee occasion of our Independence that MPs would observe decorum of Parliament thenceforth; we know the truth about that one, don't we?

Now consider whether J&K is "an integral part" as per the Constitution of India.

Every state that is included in the First Schedule of our national Constitution is, as per Article 1(2), a part of 'The territory of India.' However, two Supreme Court judgments (AIR 1955 SC 504 and AIR 1962 SC 797) interpreted the phrase 'The territory of India' in Article 1(3) to mean the territory which, for the time being, (emphasis added) falls within Article 1(3). Moreover, in its advisory opinion in 1960 on the transfer of Berubari to Pakistan, the apex court held (AIR 1960 SC 845) that Indian territory could be ceded to a foreign country by amending the Constitution under Article 368 to modify the First Schedule. Thus, on the face of it, no State in the Union of India is its 'integral' part, or, to repeat, 'necessary to the completeness' of India.

Can J&K state too be then severed from India? In theory, yes -- provided prior consent is obtained from the state government as required by the exceptional provision under Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the President of India. But that prior consent simply cannot be given by the J&K state government because doing so would violate the state constitution's Section 3, which binds the state as an integral part of India forever. And, remember, that Section is prohibited from amendment under Section 147, which also prohibits itself from being amended!

In sum, therefore, J&K can be ceded to a foreign country only after first abolishing the J& state constitution! That will be possible only under someone like General Musharraf.

Thus, unlike any other state, J&K is indeed 'an integral part of India.' But it is so only because of Sections 3 and 147 of its own state constitution, and nothing else.

Ignoring those two facets of the J&K constitution by government spokesmen and 'analysts' and journalists alike is particularly shocking because the J&K constitution was not formulated by a military dictator or an absolute monarch, but by 75 people's representatives after five-year deliberations in the state constituent assembly that was established by the May 1951 elections conducted through direct, secret and universal adult franchise in constituencies of 40,000 population.

Two facets of those 1951 elections in J&K need mention. Firstly, foreign correspondents and observer are known to have flocked to witness them. Secondly, the National Conference winning all the seats was not surprising considering the massive clout it exhibited in the 1934 and the 1938 elections to the Praja Sabha convened by the maharaja's administration. More convincing proof of the party's hold on the state's people was that its call for a boycott of the 1946 polls held by the then government resulted in a voter turn-out of not more than 8 per cent.

On page 119 of his scholarly book The Constitution of Jammu & Kashmir --- Its Development & Comments (Universal Law Publishing Co Pvt Ltd, New Delhi, third edition, 1998), our Chief Justice, Dr A S Anand, writes,'...on 31st October 1951, the first meeting of the Assembly was held in Kashmir. Sheikh Abdullah called this day as the day of destiny. He called the Assembly a "Sovereign Authority" and told the members that whatever they decided had the irrevocable force of law.'

According to Dr Anand (page 119, ibid), Abdullah told the members that one of the main objects and functions of the Constituent Assembly was 'to declare its reasoned conclusions regarding accession and the future of the state. He enumerated these alternatives as accession to India, accession to Pakistan or complete independence.' That the J&K Constituent Assembly chose accession to India after five years of deliberation and enshrined it for ever in Sections 3 and 147 of the state constitution, 1957, is, alas, forgotten history for all who presently deny India's moral, legal and constitutional right to the whole of Kashmir.

The J&K constitution, 1957, was a far cry from the Jammu and Kashmir Constitution Act, 1939, which only revealed that the Maharaja was vested with all the powers of the state. Thus, the expressly declared intention of the interim Jammu and Kashmir government in 1949 to frame a constitution for the state remain unfulfilled until the constitution of 1957 came along, formulated by 'WE, the people of the State of Jammu and Kashmir...' as stated in its Preamble. That is why Chief Justice Anand has declared that the present J&K constitution 'represents the supreme will of the people' (page 195, ibid). The government's indifference to this landmark opinion has long been the cause of its failure to counter Pakistan's propaganda of determining the future of Kashmir in accordance with the 'wishes of the people.'

Here, it is critical to understand two constitutional consequences of the popular suggestion that India accept the Line Of Control in J&K as the permanent international border between India and Pakistan as the price to be paid for peace. But first let it be noted by today's 'analysts,' editors and retired brigadiers that the idea of giving up some parts of our territory to Pakistan in order to create a reasonable, new international boundary was first approved by Nehru (and his sycophantic Cabinet) in December 1962, but rejected by Ayub Khan. And, according to The Telegraph of Calcutta, dated June 28, Musharraf too has rejected it --- but who knows what's really in his mind.

To implement that LoC compromise, the First Schedule in our Constitution will have to be amended. Presently, the definition of Jammu and Kashmir there is 'The territory which immediately before the commencement of this Constitution are comprised in the Indian State of Jammu and Kashmir.' In order to accept the LoC as the new international border, that definition will have to be changed appropriate to the logistical compromise made.

Similarly, a significant change will have to be effected in Section 4 of the J&K Constitution, 1957. At present, that Section says, 'The territory of the State shall comprise all the territory which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State.' This definition has been in line with the fond and emotional hope that, one day, Pak Occupied Kashmir will come back to what once belonged to the J&K Maharaja and was signed over by him to India on October 26, 1947. After the LoC compromise allowing Pak to legally retain PoK, the wording of this Section 4 will have to be appropriately changed -- for eternity.

The multi-billion dollar question therefore is: With what face will any government in Delhi and the people of India bring about the above two separate, self demeaning Constitutional amendments that entail the permanent loss of some 35 per cent of our territory long known as 'the paradise on earth'? And, as a corollary, what, pray, is the guarantee that Islamic jehad from Pakistan will not continue after a while? None, absolutely none, judging by the treacherous 54-year record of that country.

But who cares here in the prevalent labyrinth of indifference? Or is it the labyrinth of ignorance, really? Whatever it is, the hype and the hoopla of D-Day are all that seem to matter to men who ought to know better. Alas and fie on that.

Arvind Lavakare

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