Author: Adarsh Sein Anand
Publication: www.meadev.nic.in
Date: March 5, 2004
URL: http://www.meadev.nic.in/opn/2002mar/5stm.htm
The accession of Jammu and Kashmir
to India is legally sound, constitutionally binding and irrevocable. Holding
of a plebiscite would be repugnant to the constitutions of both India and
Kashmir.
Despite the UN Security Council's
resolution of 17 January, 1948 calling upon India and Pakistan to take
measures to improve the situation, the matter entered a stalemate.
At home, the state's internal administration
was being governed by the Jammu and Kashmir Constitution Act, 1939.
On 5 March, 1948 Maharaja Hari Singh
issued a proclamation inter alia stating: "My Council of Ministers shall
take appropriate steps, as soon as restoration of normal conditions have
been completed, to convene a national assembly based upon adult suffrage
having due regard to the principle that the number of representatives from
each voting area should as far as practicable be proportionate to the population
of that area."
This proclamation was followed by
another of 20 June, 1949 issued by the Maharaja, by which he conferred
all powers hitherto exercised by him on Yuvraj Karan Singh. On 1 May, 1951
Yuvraj Singh issued a proclamation which inter alia contained the following
directions:
That a constituent assembly consisting
of representatives of the people, elected on the basis of adult franchise,
shall be constituted forthwith for the purposes of framing a constitution
for the state of Jammu and Kashmir;
That the vote at election shall
be direct and (by) secret ballot;
That the constituent assembly shall
have power to act notwithstanding any vacancy in the membership thereof;
and
That the constituent assembly shall
frame its own agenda and make rules for the governing of its procedure
and the conduct of its business. The convening of the constituent assembly
in 1951 was a natural outcome of the desire of the people of the state
to have a democratic government responsible to the legislature, elected
by the people.
It was invested with the authority
to frame the constitution for the state and to decide its future.
"Today is our day of destiny. A
day which comes only once in the life of a nation.," declared Sheikh Mohammed
Abdullah in his inaugural address to the constituent assembly, adding that
the Assembly shall give "its reasoned conclusions regarding accession".
The constituent assembly, convened
on the basis of adult suffrage in unequivocal terms, ratified Jammu and
Kashmir's accession to India through a well-considered resolution on 15
February, 1954 after a great deal of debate, discussion and consideration.
The task of constitution-making
entered a decisive phase when, in the 12th session of the constituent assembly
held from 29 September, 1956 to 19 November, 1956 the drafting committee
on 10 October, 1956 presented the draft constitution.
The constitution was approved and
adopted on 17 November, 1956. Sections 1 to 8 and 158 - which deal with
the state territory, permanent residents and relationship of the state
with the Union of India - came into force at once.
The remaining sections came into
force on 26 January, 1957. This day is referred to as the commencement
of the constitution.
The preamble to the constitution
of Kashmir opens with the declaration: "We, the people of the State of
Jammu and Kashmir, having solemnly resolved, in pursuance of the accession
of this State of India which took place on the twenty-sixth day of October,
1947, to further define the existing relationship of the State with the
Union of India as an integral part thereof."
The people of Jammu and Kashmir
thus, finally settled any controversy regarding accession through the constituent
assembly comprising their elected representatives.
No one, even the worst critic,
has ever doubted the representative nature of the constituent assembly.
Self-determination is a one-time
slot - the people of the state took a final decision and, therefore, the
question of any further "self-determination" or "plebiscite" does not arise
either legally or morally.
The "wishes" of the people of Jammu
and Kashmir have been duly ascertained through the duly elected constituent
assembly.
The state of the people of Jammu
and Kashmir has been duly ascertained through the duly elected constituent
assembly. The state's accession to India, therefore, cannot any longer
be questioned or doubted.
The 1954 resolution of the constituent
assembly was followed by the incorporation of Section 3 in the constitution
of Jammu and Kashmir which reads: "The State of Jammu and Kashmir is and
shall be an integral part of the Union of India."
The use of the expression "is and
shall be" is significant. It talks both of the past and the future relationship
of the state with the Union of India. This section is in affirmation and
reiteration of the desire of the people of Jammu and Kashmir to be an integral
part of India.
It has been put beyond the powers
of the state legislature to amend by virtue of the mandate of Section 147
of the constitution. This provision was apparently incorporated to "avoid
any fissiparous tendencies raising their ugly heads in the future".
According to the assurance given
to the UN Security Council, the question of accession was finally set at
rest by the people of the state through their elected representatives in
1954 and 1957.
If the accession of Kashmir has
to be reopened, the same reopening would imply going back 54 years and
reopening the whole question of the independence of India and Pakistan.
The resolution of the Security Council
(91 of 1951) dated 30 March, 1951 cannot effect the constitutional provisions
contained in the constitution of Jammu and Kashmir because even international
treaties which are in conflict with the domestic law of a country must
give way to the domestic law under settled legal practice. The accession
of Jammu and Kashmir to India on 26 October, 1947 is legally sound, constitutionally
binding and irrevocable.
Article 253 has been made applicable
to the state in a modified form with a proviso that no decision affecting
the disposition of the state shall be made by the government of India except
with the consent of the state government.
Legally speaking, even if a government
in Jammu and Kashmir wanted to give its consent to secession of the state,
a position otherwise not permissible under the Constitution of India, the
state government would be banned under Section 3 of its own constitution
to give such consent. Section 147 of the constitution of Jammu and Kashmir
prohibits any amendment of Section 3, which is a basic feature of the state
constitution. Thus, holding of a plebiscite would be repugnant to the constitutions
of India and Kashmir.
The accession of Jammu and Kashmir
to India is quite analogous to the annexation of Texas by the USA. When
Mexico separated from the Spanish empire and set up as an independent republic,
Texas was an integral part of the new state.
Later, Texas revolted against the
Mexican authorities and established itself as an independent entity. The
independent status of Texas was recognised by the USA and the principal
powers of Europe.
In 1844, the government of Texas,
threatened by the menace of predatory incursions from Mexico, requested
the US government to annex the state. This proposal was sanctioned by the
American Congress in a joint resolution in March 1845.
After this sanction, America sent
an army to defend the western frontiers of Texas. The government of Mexico
strongly protested and alleged violation of the rights of Mexico and even
diplomatic intercourse between the two governments was suspended.
The Mexican protest evoked the following
reply from the US government: "The government of the United States did
not consider this joint resolution as a violation of any of the rights
of Mexico, or that it offered any just cause or offence to its Government;
that the Republic of Texas as an independent power, owing no allegiance
to Mexico, and constituting no part of her territory or rightful sovereignty
and jurisdiction."
In the Texas case, it has never
been contended that the annexation was not valid nor was the US action
to send an army to defend the western frontiers of Texas ever questioned.
The case of Kashmir's accession
stands on a much stronger footing than that of Texas and the criticism
regarding the validity of the accession of Jammu and Kashmir to India is
wholly meaningless and unsustainable.
The question of holding a "plebiscite"
in Jammu and Kashmir is legally not permissible. The theory is flawed on
legal as well as moral grounds. Even the UN Secretary- General, Kofi Annan,
has accepted this position.
He has clearly said that UN resolutions
are no longer implementable obviously because it was the entire state of
Jammu and Kashmir, including, the areas of Pakistan occupied Kashmir and
areas given by Pakistan to China, which has acceded to India and unless
all those areas were restored to India, the pre-condition for holding a
plebiscite under UN resolutions, is even otherwise impracticable and un-
implementable.
The clock cannot be put back - one
must look forward only.
Concluded
(The author is former Chief Justice
of India)
