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This hat-trick can't be a rope-trick

By Arvind Lavakare
May 06, 2003 13:03 IST
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Ah, so that's what it is: before hanging up his boots, Prime Minister Atal Bihari Vajpayee wants to perform a hat-trick -- of efforts to bring about peace with Pakistan. His address to Parliament on May 2 made that clear though, he, ever the poet, painted his latest peacemaking foray with sentimentality and imagery.

As it is, Vajpayee must probably hold the record of being our only PM to have participated twice in peace summits with Pakistan. Jawaharlal Nehru did that once when in September 1960 he went to Pakistan under the pretext of signing the Indus Water Treaty -- and stayed there for five days to discuss various problems, including Jammu and Kashmir, between the two countries.

Thereafter Nehru got an Indian delegation led by cabinet minister Swaran Singh to meet Zulfiqar Ali Bhutto and his team as many as six times between December 1962 to May 1963 to try and bring about long-term peace between the two neighbours. All six rounds were unproductive.

Then, in May 1964, Nehru sent his favourite, Sheikh Abdullah, a mere chief minister, to meet President Ayub Khan in Rawalpindi. On the 24th of that month, Ayub Khan agreed upon a summit with Nehru. That summit never happened because the very next day saw the demise of Nehru.

His successor Lal Bahadur Shastri held a summit in Tashkent where he agreed to return territories that Pakistan had illegally held since its invasion of J&K in October 1947 but which the Indian Army had captured in the 1965 war; he himself could not return alive to his native soil. Indira Gandhi held a summit with Zulfiqar Bhutto in Simla in 1972 where she agreed to return 93,000 Pakistani prisoners but could not secure either J&K or permanent peace with Pakistan. Rajiv Gandhi's later summit with Benazir Bhutto was fruitless too. So was Inder Gujral's summit with Nawaz Sharif. And ditto with Vajpayee's summit at Lahore in May 1999 and at Agra in July 2001.

If, despite this long history of failure of all peace talks with Pakistan, Vajpayee is now setting the stage for yet another summit dialogue, it may well be because he believes that 'third time lucky' holds good in his case. While one may be individually very sceptic about a poet's optimism regarding lighting a lamp in the darkness all round, it behoves every Indian to fully support Vajpayee's hat-trick effort and hope.

However, it would not be unpatriotic to let even the seasoned Vajpayee know that extreme caution and care, rather than poetic felicity with words, are necessary before proceeding to ink any agreement with Pakistan.

While Vajpayee's stated insistence on creating a conducive atmosphere first and then fixing a proper agenda for summit talks are fine, an equally important preparatory step is to firmly determine the political distance to which the Indian nation as a whole -- and not the Vajpayee government alone -- is prepared to travel in order to reach the goal of long-term peace with Pakistan.

It would be a catastrophe, for instance, if an agreement that is signed in hurry (under the alleged or real pressure of superpower USA) leads to a revolt within our own land. It would be a national humiliation if, for instance, the Indian Parliament itself or the Indian Constitution finds the agreement anti-national or illegal respectively.

Restoring the high commissioner to Islamabad, resuming the Delhi-Lahore bus service and the Samjhauta Express, boosting bilateral trade, reviving cricket ties etc -- all that is as fine as it goes. None of these movements can invoke humiliation or outrage. But what about any sort of compromise on Jammu and Kashmir? Acceptance of the Line of Control as the official boundary between two sovereign nations would, for instance, be looked upon as eating a huge lump of crow. It would be so for the simple reason that it will entail signing away the cession of a big chunk of national territory which, moreover, we have been saying, for over 50 years, is an integral part of India.

There is also that Parliamentary resolution of February 1994 avowing to take back Pak occupied Kashmir. Will the Lok Sabha and Rajya Sabha agree to officially rescind that memorable resolution?

Will we be willing to undergo a catharsis to amend our Constitution in order to legitimise the LoC as being the boundary of our nation's sovereignty? Remember, we had to do precisely that 43 years ago when, under an India-Pakistan agreement, we had agreed to cede some Indian territory to Pakistan. That was because the Supreme Court's advisory opinion held that Indian territory can be ceded to a foreign country only by enacting a formal amendment of the Constitution through Article 368 so as to modify the First Schedule to the Constitution (AIR 1960 SC 845). That is how and why our Constitution's Ninth Amendment, 1960, occurred, modifying the description of boundaries (given in the First Schedule) of the states of Assam, Punjab, West Bengal and the then Union Territory of Tripura.

If the LoC is accepted as the new, internationally recognised separator of India and Pakistan entities, a similar amendment will be necessary to alter that part of the First Schedule wherein the territory of J&K is presently defined as 'The territory which immediately before the commencement of the Constitution was comprised in the Indian State of Jammu and Kashmir.' Nehru could get that Ninth Amendment through because of the massive Congress strength in both Houses of Parliament. Would Vajpayee's government succeed with a similar Act? Would it without taking prior consent of all concerned?

Ceding of territory beyond the LoC to Pak entails the additional onus of obtaining the prior consent of the J&K state legislature. That is so because of the Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the President of India under Article 370 of our Constitution. That order adds, to existing Article 3, the extra proviso saying '…no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir shall be introduced in Parliament without the consent of that State.' What allurements will have to be given to the 'separatists' and pro-Pak groups in and outside the J&K Assembly to secure that consent? It is simply inconceivable that these groups will easily give their approval to an international agreement which virtually kills the rationale for their existence all these long years. If no such deal is struck with these groups, internal uprising can be expected.

Any legal diminution of the area of the area of J&K also requires an amendment of J&K state's own constitution wherein Section 4 lays down that 'The territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State.' Will it be possible to secure a prior assurance on this from the Mufti or any other government without breaking hearts, without bandhs and without aggravation of terrorist acts?

It ought to be clear, therefore, that inking any agreement with Pakistan that means a compromise on the J&K territory will necessarily demand the prior approval of a host of political opinions in Parliament, in the J&K state, and elsewhere if India's signature on that agreement is not to become a massive embarrassment in the outside world. This in turn means that the Vajpayee government must necessarily have a very close interaction with major political parties and get their concurrence in advance as to what concessions and compromises, if any, could be made at any forthcoming summit with Pakistan. That itself is going to be a daunting task before Musharraf & Co are tackled.

The legal hassles mentioned above bring forth a little known infirmity in the Constitution of India. Article 246(1) confers plenary powers on the country's central government to enter into agreements and treaties, and to enact necessary legislation to effectuate them. But it is not necessary to enact a law for implementing each and every treaty. Thus, Shastri signing away captured territories to Pakistan or Indira Gandhi signing away 93,000 Pakistani prisoners did not require Parliamentary legislation but had to be implemented nevertheless in order to honour an executive decision by the government of the day in Delhi. In the US, treaties signed by the federal government require to be confirmed by two-thirds of the Senators present before being placed in the same category as an Act of Congress. (Indian Constitutional Law, by M P Jain, Wadhwa & Company, Nagpur, Fourth Edition Reprint 2002, page 290). Thus it was that CTBT, though signed by the Clinton administration, did not bind the USA to adhere to it because the Senate didn't approve it.

In the absence of a similar stipulation in India, the danger always exists that, for some reason unknown, the ruling Government of India could well sign a binding treaty with Pakistan that is construed as not being exactly honourable to the nation or as not compatible with the nation's long-term interest. For instance, the late Deen Dayal Upadhyaya of the Jana Sangh had contended that Indus Water Treaty should not be signed as long it contained the clause giving Pakistan the right to construct Mangla Dam because the clause meant a virtual abdication of our claim to that part of Indian territory. But the treaty was signed nonetheless and Parliament rendered theoretically incapable of doing precious little to thwart it. And something akin to that was widely reported to have happened at Agra in July 2001 when some of our so-called hardliners allegedly refused to let an allegedly finalised draft pass into a formal agreement, signed, sealed and delivered.

Another danger of hastily signing a compromise treaty/agreement with Pak on, say, granting de jure recognition to PoK is that China will press for such validity to its de facto occupation of a part of Ladakh.

Clearly, preparations for Vajpayee's hat-trick summit require tremendous homework, both outside and inside our borders. After all, signing a peace summit with Pakistan is hardly the mythical Indian rope-trick.

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Arvind Lavakare