Author: Arvind Lavakare
Publication: Rediff on Net
Date: March 8, 2004
URL: http://www.rediff.com/news/2004/mar/08arvind.htm
Except for the inaugural Mumbai
Marathon, February 15, 2004 passed off in the country as usual -- with
controversies about this or that, with corruption cases and with episodes
of rape and riots and robberies.
Totally forgotten was that on that
very day, 50 years earlier, the Jammu & Kashmir Constituent Assembly
unanimously ratified the state's accession to India. Thus, February 15,
2004 marked the golden jubilee of the day that witnessed J&K's accession
to India being signed, sealed and delivered -- not by a Hindu maharaja
ruling over a population of which 77 percent were Muslims, but by a democratically
elected constitutional body all of whose 75 members were die-hard followers
of a colossal Muslim leader called Sheikh Abdullah.
That decision of the J&K Constituent
Assembly was an extraordinarily bold one for no other reason than it defied
the then mighty Security Council of the United Nations. The latter had,
61 months earlier, been manipulated by scheming Britain into passing a
perverse resolution whereby the accession of J&K to India or to Pakistan
was to be decided only by a plebiscite although the state had already legally
acceded to India through the Instrument of Accession in terms of Britain's
India Independence Act, 1947.
The J&K Assembly's defiance
of the UN was based on principle. India had taken the J&K issue to
the Security Council to seek a decision not on its accession but only to
prevent Pakistan from continuing to give assistance in men and materials
to those raiders from its territory who had invaded the former princely
state and wouldn't go back to Pakistan even after J&K had chosen to
join India. India had wanted the UN to exercise its authority and instil
sense into Pakistan so as to prevent danger to international peace. Instead,
the world body had chosen to offer Pakistan an official route to hoist
its flag in Srinagar.
As Sheikh Abdullah himself stated
at the Security Council's meeting number 241 held on February 5, 1948,
'Whether Kashmir has lawfully acceded to India is not the point at issue'
and appealed that 'The Security Council should not confuse the issue.'
He also reminded the Council that when accepting J&K's accession to
India, its prime minister, had assured that 'once the country is free from
the raiders, marauders and looters, this accession will be subject to ratification
by the people.' That ratification by the people demanded a constitution
created, not by a maharaja (as was done through the J&K Constitution
Act, 1939), but by the people, of the people and for the people. And since
Clause 7 of the Instrument of Accession of 1947 did not commit J&K
to adhere to the Indian Constitution then being debated in Delhi, a J&K
Constituent Assembly was set up through democratic elections that were
witnessed by international observers and were conducted on the basis of
universal adult franchise -- never mind that Sheikh Abdullah's National
Conference party was the only in the fray with its insignificant rival,
the Praja Parishad, deciding to stay away.
So momentous an event was the creation
of this J&K Constituent Assembly that the day of its first meeting
on October 31, 1951 was described by Sheikh Abdullah in his opening address
as the 'day of destiny... a day which comes only once in the life of a
nation.' (As cited on page 119 of Justice Anand's book The Constitution
of J&K -- Its Development & Comments third edition. 1998, Universal
Law Publishing Co.Pvt.Ltd, New Delhi). Abdullah's speech also stated that
one of the four main objects and functions of the Constituent Assembly
was 'to declared its reasoned conclusions regarding accession and the future
of the State." He also 'enumerated the alternatives: accession to India;
accession to Pakistan or complete independence.' (ibid, page 119)
Accession to India? Complete independence?
Were any of these two at all possible once the J&K maharaja had signed
the Instrument of Accession on October 26, 1947 in favour of India. Or
was Sheikh Abdullah merely indulging in rhetoric?
Justice Anand believes that either
of the two alternatives was indeed legally feasible. Opting for Pakistan
meant i. India abrogating Article 370 of its Constitution with the required
consent of the J&K Constituent Assembly, and ii. India ceding part
of national territory. The former would have been readily allowed by Nehru
and the latter could be done by amending the Indian Constitution as was
ruled by the Supreme Court in 1960 in its advisory opinion that was sought
after India had agreed in 1959 to transfer some territory to Pakistan to
settle certain boundary disputes. (Berubari Special Reference AIR 1960
SC 845).
Complete independence was also possible
according to Justice Anand. He writes, 'If the State desired that it should
be completely free of the Indian Union, it could request the President
of India to issue an order under Article 370, making both that Article
and the Order of 1950 inoperative. But the Instrument of Accession could
not be abrogated; so, if the power in matters of Defence of the State remained
with the Union of India, the State could become a protectorate of India.'
(ibid, page 120).
Neither union with Pakistan nor
complete independence was the desire of the then people of J&K as expressed
in the voice of their leadership represented in the 75-member Constituent
Assembly. On that memorable day of February 15, 1954, 64 of the assembly
members who were present cast a unanimous vote ratifying the state's accession
to India. It was proof that the people of J&K were ideologically unreservedly
committed to India. Incidentally, the unanimous vote came even as the towering
Sheikh Abdullah lay in jail, accused of allegedly conspiring against the
state.
On that day, premier Bakshi Ghulam
Mohammed declared amidst cheers, 'We are today taking the decision of final
and irrevocable accession to India and no power on earth could change it.'
(The Hindu, February 17, 1954). Two months later, President Rajendra Prasad
reiterated that view when he said, 'any break in the relationship (of Kashmir
with India) was inconceivable." (Anand, ibid, p.127).
Mere accession to India was not
enough for the people of J&K. There was a legal hitch to a fuller,
more integral, bonding. In the case of Sayee versus Ameer Ruler Sadiq Mohammed
Abbari Bhawalpur the Supreme Court made it clear that the effect of Instrument
of Accession was not to make any State a 'part' of the Dominion. [(1952)
1 AII ER 326, 328-329]
This legal hitch was removed by
the J&K Constituent Assembly in the state Constitution it adopted on
November 17, 1956. It framed Section 3 in that Constitution to say, 'The
State of Jammu and Kashmir is and shall be an integral part of the Union
of India.' As insurance for life, this Section 3 was immune from any amendment
at any time.
Judged by its failure to convince
the international community about our ironclad claim on the whole of J&K
all these years and the apparent willingness today to cut a deal on J&K
'to the satisfaction of Pakistan' (as stated in the Islamabad Declaration),
our entire political leadership -- along with political analysts and Kashmir
'experts' -- would seem to have forgotten the very existence of that Section
3 -- forgotten just like the golden jubilee of February 15, 2004 was the
other day.
Just imagine some 550 disparate
sovereign states, big and minuscule, persuaded to accede to India almost
in one go, without much of a murmur, and the country hasn't earmarked a
day to commemorate the epoch-making event that prevented the disintegration
of India as we have known and built in more than half a century since then.
Perhaps our nation has been tuned to celebrate Valentine's Day but not
an Accession Day.
Tailpiece: All those who today advocate
autonomy short of azaadi to J&K or even independence ought to be reminded
of two observations of Bakshi Ghulam Mohammed. In a statement in August
1953, he said that 'an independent Kashmir' under the patronage of the
USA would be a threat to the freedom and independence of Indian and Pakistani
people. And in September 1962 he said, 'Kashmir cannot remain independent.
Geographically the situation does not warrant it at all. Moreover, Kashmir
is a poor state and cannot stand on her own feet.'
