ACCESSION & ARTICLE 370- IN RESPONSE TO ADARASH SEN ANAND

Mr. Adarash Sen Anand, former chief Justice of India, has written a two installment article titled “Accession of J&K, a constitutional view” which appeared in daily Chandigrah Tribune of 2nd & 3rd  July 2014.In the first part of the article he has dealt with the historical perspective of the Accession of J&K State to Indian Dominion and in the second part about the  history & legality of Article 370 of Indian Constitution. The article appears to be a part of the wider debate started by BJP on Article 370. If the debate remains serious & civil, devoid of  heat & Jingoism generated by right wing  extremist elements-it is welcome.

The write-up by Mr. Anand is factually incorrect on few points & economical in content & substance on few others. The first factual error is when he writes that Sheikh Mohd. Abdullah was elected Emergency Administrator on 25th October 1947. Thereafter he proceeds to say that Sheikh Abdullah advised the Maharaja that if the State was to be saved, he must accede to India and ask for immediate military help. The fact of the matter is that Abdullah was appointed Emergency Administrator on 30th October 1947. What Mr. Anand wants to convey the readers is that the decision to accede to India was taken by Maharaja after consulting Abdullah, the person in authority as an Emergency Administrator, which is factually wrong.

At another place, Mr. Anand writes that the Constituent Assembly of the State formed in 1951 represented the people of the entire State in unequivocal terms & no one, not even the worst critic, has ever doubted the representative nature of the Constituent Assembly. Here again Mr. Anand is wrong on facts. The said assembly represented only members from Indian administered Kashmir & not “Entire state” as understood in the context. Though seats for members from Pakistan administered Kashmir were reserved for the assembly, (& continue to be so reserved  in the legislative assembly) none of them took part in the  deliberations of the constituent assembly. As far as the election of  members is concerned, less said the better. Out of 75 members, 73 were elected unopposed due to boycott of elections by all political parties including the right wing Praja Parishad of Jammu. Two contesting candidates namely Shiv Narain Fotedar(Habba Kadal) & Sant Singh Giyani were forced to withdraw from the contest after being dubbed as Pakistani agents. That these elections were completely rigged is also testified by Mr. Ved Bhasin, Editor Kashmir Times  & a living legend in his interview to Kashmir Life, a local magazine dated 3rd  October  2009  

And before accession could be ratified in the constituent assembly, a massive procession against the move was held on 19th June 1953 under the patronage  of “Kashmir political Conference” led by Mr. Mohiuddin Karra & including Pandith leaders  like Ragunath Vashnivi & Shyamlal Buch.They were arrested the next day & released only after the accession was ratified by so-called constituent assembly. If some iota of representative character was still left, it was robbed with the arrest of Sheikh Mohd. Abdullah & his colleagues, the brains behind the idea of constituent assembly,  on 9th August 1953. From Jail, Abdullah wrote many letters to chairman of the assembly, Mr. G.M.Sadiq reminding him of the loss of representative character of the constituent assembly due to his & his colleagues illegal arrest thus depriving them of taking part in the deliberations.

The constitution of  constituent assembly, was also opposed by UN as is clear   from its resolution No. 91of 30th March 1951, the relevant para of  which is reproduced below:

Affirming that the convening of a constituent assembly as recommended by the General Council of the "All Jammu and Kashmir National Conference" and any action that assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the above principle”

This resolution was adopted at the 539th meeting of UN by 8 votes to none. Surprisingly India did not oppose this resolution but absented itself from the voting along with USSR &  Yugoslavia. The posture of abstention as against opposition was used by India   to avoid censure by UN for adopting dilly-dallying tactics on the commitment of holding a plebiscite in disputed territory.

In view of  these facts, if Mr. Anand asserts that Constituent assembly was representative of people of the entire State & no body doubted its representative character, I think there is a serious flaw in his understanding of the subject.-To be continued

(The author is a practicing chartered Accountant. E mail: abdulmajidzargar@gmail.com)