Rescind parliament resolution

New Delhi’s offer of quiet dialogue has been widely discussed across Kashmir.  While a section of the pro-resistance leadership has categorically rejected the offer as a futile exercise, the other section has welcomed the process. However, sensing the mood of the people, they have urged the government of India to take appropriate measures for making the dialogue meaningful and result oriented. But what can New Delhi actually do to save the institution of dialogue from being further abused?
 
The Right Wing Bharitya Janata Party (BJP) has already sought clarifications from Dr Manmohan Singh.  Two days ahead of his recent visit to the Kashmir Valley, the BJP asked him to clarify his policy on Kashmir as it was a "question of sovereignty".

"The Prime Minister appears too vague about his Kashmir plans. He should make it clear as it is a question of our sovereignty. There is a Parliament resolution about Kashmir," BJP’s leader of Opposition in the Rajya Sabha, Arun Shourie said.

The Indian Government has to take into consideration the Indian Parliament Special Resolution on Kashmir of 1994 (unanimously passed) that the territorial integrity of Kashmir is nonnegotiable. If this stands unchanged then the Indian government has very little leeway for a flexible approach towards Hurriyat.
 
The Resolution was unanimously adopted and unanimously passed on February 22, 1994. It reads: This House  note with deep concern Pakistan’s role in imparting training to the terrorists in camps located in Pakistan and Pakistan Occupied Kashmir, the supply of weapons and funds, assistance in infiltration of trained militants, including foreign mercenaries into Jammu and Kashmir with the avowed purpose of creating disorder, disharmony and subversion:

Reiterates that the militants trained in Pakistan are indulging in murder, loot and other heinous crimes against the people, taking them hostage and creating an atmosphere of terror;

Condemns strongly the continued support and encouragement Pakistan is extending to subversive and terrorist activities in the Indian state of Jammu & Kashmir;

Calls upon Pakistan to stop forthwith its support to terrorism, which is in violation of the Simla Agreement and the internationally accepted norms of inter-State conduct and is the root cause of tension between the two countries reiterates that the Indian political and democratic structures and the Constitution provide for firm guarantees for the promotion and protection of human rights of all its citizens;

Regard Pakistan’s anti-India campaign of calumny and falsehood as unacceptable and deplorable.

Notes with deep concern the highly provocative statements emanating from Pakistan urges Pakistan to refrain from making statements which vitiate the atmosphere and incite public opinion;

Expresses regret and concern at the pitiable conditions and violations of human rights and denial of democratic freedoms of the people in those areas of the Indian State of Jammu and Kashmir, which are under the illegal occupation of Pakistan;

On behalf of the People of India,

Firmly declares that-

(a) The State of Jammu & Kashmir has been, is and shall be an integral part of India and any attempts to separate it from the rest of the country will be resisted by all necessary means;

(b) India has the will and capacity to firmly counter all designs against its unity, sovereignty and territorial integrity;

and demands that –

(c) Pakistan must vacate the areas of the Indian State of Jammu and Kashmir, which they have occupied through aggression; and resolves that –

(d) All attempts to interfere in the internal affairs of India will be met resolutely."

 
It is widely believed that the government of India offered the dialogue in response to increased international pressure. It is a `heads we win, tails you lose’ situation for New Delhi. If pro-resistance leadership accepts the dialogue, they will have to give up the struggle. If they reject it, New Delhi will get sufficient grist for running its propaganda mill at the international level. `We are ready to talk. They are not interested. What else can we do?’   
 
The cynicism of those who rejected the dialogue is not totally unfounded. Given the history of the dialogue process and its abuse by government of India, the leadership has to keep its eyes wide open. The civil society and the political leadership have spelled their respective concerns vis-à-vis the dialogue. Now the ball is in New Delhi’s court.
 
As a confidence building measure, New Delhi must rescind the above quoted Parliament resolution. Renowned legal experts believe it has no relevance. Senior counsel and Peoples Democratic Party (PDP) leader, Muzaffar Hussain Beig while addressing a seminar on Self rule last week said: “Centre has to roll back several constitutional Articles extended to Jammu and Kashmir.

Article 1 in Indian constitution vis-à-vis schedule one regarding Jammu and Kashmir must be rolled back.

Besides Article 372 and section 4 of Jammu and Kashmir constitution also need to be rolled back,” said Beigh while addressing party seminar titled ‘Is Self Rule a way forward to the resolution of Jammu and Kashmir’.

About the resolution by Indian parliament in 1994 which states that India will take back ‘Azad Jammu and Kashmir (AJK)’ from Pakistan, Beigh said, “It is a paper tiger. India must roll back this resolution as well. Neither India nor Pakistan can take Kashmir controlled by each other. India should give up its claim on AJK.”
 
Similar views have been expressed by renowned jurist, A G Noorani in one of his articles in Frontline. Parliament’s Resolution of February 22, 1994, declares Jammu and Kashmir to be "an integral part of India" which is not contested and demands that Pakistan "vacate" the areas in administers. It differs from the Resolution of March 13, 1990, based on a joint statement by Prime Minister V.P. Singh, Rajiv Gandhi, A.B. Vajpayee, L.K. Advani, H.K. Surjeet and others, which referred to the people, not the land alone, and pledged "complete protection of their cultural and religious identity and full expression of their aspirations". The accord would do just that.

Both resolutions, however, are as irrelevant as the Lok Sabha’s resolution of November 14, 1962, on China, which affirmed a resolve "to drive out the aggressor".

A resolution of Parliament is not law (Stockdale vs. Hansard, 1839, 9A & E1 and Bowles vs. Bank of England, 1913, 1 ch. 57). S.A. de Smith’s Constitutional and Administrative Law holds that such a resolution "has no legal effect outside the walls of Parliament… unless given such an effect by Act of Parliament".

So rescinding of the resolution would in no way compromise the unity, integrity and sovereignty of India. New Delhi can do at least this to convey its seriousness and sincerity.
 
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