What Is Their Mandate

The new dispensation should focus on much needed good governance

Thirteen days back, on March 17, members of the 12th Legislative Assembly were administered oath of office. The Constitution of Jammu and Kashmir that brought the state legislature into being and serves as bible for the members during their six years term delineates in detail powers, privileges and immunities of the members. 

What is the mandate of these members under this Constitution? This question has been bothering my mind and perhaps that of many others. Have they’ the powers to change the political status or the status quo of the state or in simpler terms has the state legislature powers or right to address the Kashmir Dispute. And suggest an alternative solution to the one contained in the United Nations resolutions of 13 August 1948 and 5 January 1949 and equally recognizes the fundamental right of the people guaranteed by these resolutions. Genesis for this question lies in the address of Governor, N. N. Vohra, to the joint session of Assembly. He had invited all ‘internal stake holders’ including all ‘political groups irrespective of their ideological views and predilections for evolving a consensus on resolution of all outstanding issues.’ 

In articulating elusively crafted offer for dialogue from the state government the Governor in no way was presenting views from the Government of India. Despite, it being more than obvious that offer for dialogue was not from the GoI but from the state government, as I analysed in past week column, it evoked unlike in the past it invoked warm response from some important “resistance” groups. 

Hypothetically speaking even if the state government has a nod from the Modi government for starting a dialogue with the Hurriyat Conferences along with all other stakeholders which obviously includes the National conference and other political parties that subscribe to the finality of sate’s accession with India. Can such a dialogue succeeded in evolving a consensus for resolution of the Kashmir problem, in conformity with the people’s narrative that runs through sixty seven years history of the dispute. And, even if, one believes a dialogue as envisaged takes place between the Hurriyats and all other “stake holders” and consensus for holding tripartite talks between India, Pakistan and Kashmir for settlement of the dispute is arrived at and the Assembly adopts the same through a resolution. The question arises will GOI honour such a resolution. History testifies all actions of the state assembly that did not sync with the policies of New Delhi where trashed and latest one was the autonomy resolution overwhelmingly adopted by the state assembly. 

This whole idea for evolving a consensus for finding a solution to Kashmir problem by the new state government suffers from some inherent contradictions. One, of the major contradiction is that the Constitution of Jammu and Kashmir to which all members of the legislature take oath of allegiance and draw their authority does not recognize Jammu and Kashmir as a dispute, problem or an issue- that calls for resolution. It leaves no scope for changing the status quo. The preamble of the Constitution of Jammu and Kashmir to which MLA takes two oaths one at the time of filling nomination papers and another after having been elected reads: 

We…. Having solemnly resolved, in pursuance of the accession this State to India which took place on October 26, 1947, to further define the existing relations of the State with Union of India as an integral part thereof and secure to ourselves….. 

Article 3 and 4 of the same Constitution reads: 

Relations of the State With Union of India:- The State of Jammu and Kashmir is and shall be an integral part of Union of India. 

Territory of the State- The territory of the State shall comprises all the territories which on 15 August 1947 were under the sovereignty or suzerainty of the Ruler of the State. 

How is it a possible for an Assembly that even considers AJK as an integral part of India to depart from the preamble of the State Constitution and look for a resolution or a negotiated settlement of the Kashmir problem outside both Constitution of Jammu and Kashmir and Constitution of India? Another major inherent contradiction in the whole propositions is that the United Nations Security Council neither recognizes the book nor the body from which the State Government draws all its authority. And how can such a government come up with solution of a dispute that binds India and Pakistan by an ‘international agreement’ or in the words of A.G. Noorani “under the Vienna Convention on the Law of Treatise by a ‘treaty’, {Article 2(1) (a)}. (Kashmir Dispute Vol 2 Page 98). And when continues to be on the UN agenda and UN military observers continue in both parts of the state. 

In 195o, when the General Council of the National Conference adopted a resolution for convening of a Constituent Assembly for endorsing accession of the State to India. The Security Council on 30 March 1950 adopted a resolution ‘affirming any action taken by Assembly would not constitute disposition of the State in keeping with the UNCIP resolution agreed by both the countries. In 1957, after the State Constituent Assembly adopted the Constitution and endorsed the ‘Instrument of Accession” the UN adopted another resolution reaffirming its commitment to all earlier resolutions committed to holding of plebiscite and in categorical terms refused to accept the bona fide of the Constituent Assembly or actions it has taken. 

Syed Mir Qasim in his autobiography writes about action taken by the Constituent Assembly India ‘suffered lots of contradictions on this count. On the one hand B.N. Rao assured UN of its commitment to plebiscite on other Gopalaswami Ayyengar wanted the Constituent Assembly to ratify accession. Nehru before international community vowed that he stood for plebiscite and in the same breath he asked Abdullah to get accession ratified.’ (page 59). Seen in right perspective, it is these resolutions that run through all after accords and agreements including much trumpeted Simla Agreement and the Lahore declaration. 

Looking at the offer of talks emanating from the floor of the Assembly in the light of above mentioned historical realities by all stretch of imagination it seems an exercise in evasion. Instead, of endeavouring for a higher role like finding solution of the dispute, the new dispensation in the state should focus on much needed good governance.