Trial Balloon and Beyond

It could not have been a trial balloon. Or something out of sheer naivety and ignorance of the State and Indian constitutions that the Peoples’ Democratic Party legislator Nizam-ud-Din Bhat introduced a private member’s bill in the Assembly seeking ‘deletion’ of sub-clause (B) of Section  147 of Jammu and Kashmir Constitution that would facilitate ‘deletion’ of Section  3 and Section  5 of the said constitution declaring Jammu and Kashmir as an integral part of India.  The bill caused a flutter in the legislator’s party and triggered a row on satellite television channels.

The bill was rejected by the speaker of the Assembly informing the legislator that it could not be admitted in the coming session of the Assembly.  The ground for rejection of the bill on its face seems tenable and innocuous.  But the introduction of the bill throws up many a poser:  Was it fraught with danger of challenging the sovereignty of India or the it was targeted at creating a maneuverability and flexibility within the state constitution for facilitating a permanent solution of Kashmir problem within the constitution of India that would include ‘self-governance of the PDP’ or ‘autonomy’ of the National Conference. It also raised a question, if there was need for such provision in the state constitution when the constitution of India in article one lays down that India that is Bharat, shall be union of states. In the schedule of union of states Jammu and Kashmir figures at serial number 12 in the list of twenty eight states.

Noorani,  holds the view that Article is ‘applicable to state through Article 370’, that he says was not ‘eroded’ by efflux of time or ravage of the elements. It was denuded of content by conscious executive acts on his (Nehru’s) advice through one Presidential order after another’.

The bill also very subtly kick-starts a whole debate about the constituent assembly’s moral and legal authority in declaring the state   as an integral part. It also brings into debate relevance of these provisions to the international status of the problem.

To understand the cause of flutter over this bill it would be ideal to reproduce the provision that the author of the bill wanted to see deleted. These provisions read:

 3: The state of Jammu and Kashmir is and shall be an integral part of the Union of India.
 5: The executive and legislative powers of the state extends to all the matters except those with respect to which Parliament has power to make laws for the state under the provisions of the constitution of India.
147:  ……
Provided further that no Bill or amendment seeking may any changes in —
(a) this Section  or
(b) the provision of 3 and 5; or
(c) provision of the Constitution of India as applicable in relation to state;

Shall be moved in either of House of the legislature.

The author of the bill feels that these provisions ‘restrain’ ‘reshaping of the relations of the state with Union of India and finding a ‘unique’ settlement perhaps he means ‘self-governance’. A cursory reading of these Section s does suggest that there the state Assembly has no powers to revoke or amend any laws extended to the state after 1953, so neither autonomy nor self-rule can be accommodated within these provisions.

However, it is matter of debate that should engage attention of all the political parties looking for resolution of Kashmir within the constitution of India.

Interestingly the bill has also sparked a debate that calls for revisiting the history of the birth of the constituent assembly, it scope and limitations. In 1947, Sheikh Abdullah was appointed as Emergency Administrator under the ‘existing 1939 constitution of the state’. “In 1952 pending the formal drafting of the State Constitution by a Constituent Assembly, Sheikh Abdullah declared that he was operating under an interim constitution that was an improvised version of 1939 constitution.’ (Lamb in DL Page 184). And not under Government of India Act 1935 that was adopted as the interim constitution for rest of India.  In November 1951 the State Assembly set up a constitution drafting committee with M.

A. Beg as its Chairman and M.A. Shahmari as Constitutional advisor. Seen in right historical perspective there existed an ever widening chasm between Srinagar and New Delhi on drafting of the State Constitution. Mir Qasim in his biography writes that the ‘constitution making brought out fundamental difference between the state and centre.’

The areas of difference were very wide, these were not confined to extending jurisdiction of some institutions outside the instrument of accession only but some internal issues such as  Mr. Beg proposing ceding of Doda and Poonch from Jammu province and joining them with Kashmir within ten years. Mir Qasim writes all these “developments were getting reported to the Centre.” Ostensibly the differences over constitution drafting caused Abdullah’s deposition.

‘In 1953, Nehru is reported to have told Sheikh Abdullah that he could not imagine Independent Kashmir rather he would give it to Pakistan.( Qasim biography page 61). This again brings into question if the Assembly that all and sundry was elected unopposed and its leader deposed “illegally” had a moral and legal sanction to adopt a constitution deciding about the future of the state.

These provisions  have no bearing on status of Kashmir problem at the international level. The United Nations that was monitoring developments in the state since 1951 adopted resolution in 1957 rejecting any action of the Constituent Assembly with regard to disposition of future status of the state. (UN Resolution No 122- 1957). 
Resolution 122 (1957)

Adopted by the Security Council at its 765th meeting on 24 January, 1957.

THE SECURITY COUNCIL,


Having Heard statements from representatives of the Governments of India and Pakistan concerning
the dispute over the State of Jammu and Kashmir.

Reminding the Governments and authorities concerned of the principle embodied in its resolutions 47
(1948) of 21 April, 1948, 51(1948) of 3 June, 1948, 80 (1950) of 14 March, 1950 and 91(1951)
of 30 March, 1951, and the United Nations Commission for India and Pakistan resolutions of 13
August, 1948, and 5 January, 1949, that the final disposition of the State of Jammu and Kashmir will
be made in accordance with the will of the people expressed through the democratic method of a
free and impartial plebiscite conducted under the auspices of the United Nations,

1. Reaffirms the affirmation in its resolution 91 (1951) and declares 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 may have taken or might attempt to take to
determine the future shape and affiliation of the entire State or any part thereof, or action by the
parties concerned in support of any such action by the Assembly, would not constitute a disposition
of the State in accordance with the above principle;

Decides to continue its consideration of the dispute.

The Security Council voted on this Resolution on 24-1-57 with the following result:
In favour: Australia, China, Colombia, Cuba, France, Iraq, Philippines, Sweden, U.K. and
U.S.A.

Against: None
Abstaining: U.S.S.R. 

(Debate is open and will be continued)
(Feedback at zahidgm@greaterkashmir.com)