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The Rediff Special/Arvind Lavakare

The Fact of the State's Constitution

Kashmir: The Real Story

The constitution of Jammu and Kashmir state, 1957, is an indisputable fact of history which just cannot be wished away by any doctrine -- Nehru's or Gujral's or Vajpayee's or Sonia Gandhi's. Neither can the United Nations, whatever its resolutions may have said in the past.

The constitution of Jammu and Kashmir, 1957, was adopted by the state's constituent assembly on November 17, 1956. Its sections 1 to 8 and section 158 came into force on that day while its remaining provisions came into force from January 26, 1957.

Two questions may be asked: "Was the above constituent assembly a duly elected one? Was the constitution it formulated based on the majority will of its people?" The answer to both the queries is a loud Yes.

The constituent assembly was instituted by the proclamation of May 1, 1951 issued by the yuvraj of Kashmir, heir to the maharaja of Kashmir who, excepting the subjects of defence, external affairs and communications, retained his complete residuary sovereignty even after he signed the Instrument of Accession.

Elections to the constituent assembly were held in August 1951 through electoral districts carved out on the basis of one district for every segment of 40,000 population voting on the principle of adult franchise (not less than 21 days of age).

There were thus 75 elected members in that constituent assembly. After a full five years of debate, they adopted the state's constitution in which the preamble begins with the words "We, the people of Jammu and Kashmir, having solemnly resolved..."

However, the Security Council resolution of March 30, 1951 made two critical observations with regard to the formation of the Jammu and Kashmir constituent assembly. In the third paragraph of that resolution the council observed that "the area from which" the proposed "constituent assembly would be elected is only a part of the whole territory of Jammu and Kashmir."

The covert criticism herein was that Pak Occupied Kashmir (christened Azad Kashmir by Pakistan) was excluded from the proposed elections and that, therefore, the polls were not universally representative. Notable here is that the UN was frowning at a perfectly acceptable democratic process in constitution formation rather than seizing it to prevail upon Pakistan to let all the eligible Kashmiris in the territory held by it to also take part in that democratic process.

In any case, it was not the Kashmir yuvraj's fault if elections to the proposed constituent assembly excluded the territory held by Pakistan despite the Security Council requiring it to vacate that territory. As James P Fergusson stated in his book Kashmir: an historical introduction (1961), "it was the whole state of Jammu and Kashmir that had acceded to India, and although some regions had broken away, they had done so illegally, and their illegal action could not confer any right on Pakistan.''

The constitutional refutation of the Security Council's oblique criticism comes from Justice Anand. He states "the area of Azad Kashmir is de jure part of the territory of the state of Jammu and Kashmir. The constituent assembly visualised the possibility of that area being vacated by the aggressor and in anticipation of that, it provided in the constitution of Jammu and Kashmir that 'twenty-five seats in the legislative assembly shall remain vacant' till the area of the state under the occupation of Pakistan ceases to be so occupied and the people residing in that area elect their representatives." (section 48)

It must therefore be accepted that by conducting polls in 75 out of 100 possible electoral districts on the basis of 40,000 population per district, the yuvraj of Kashmir did make a laudable and giant trust in his objective of getting a democratically formulated constitution for his state. Should the UN have welcomed it or turned against it as it in fact did?

In this connection it is relevant to note that the idea of convening a constituent assembly for Jammu and Kashmir state was conceived even before the Partition of India was contemplated, and the idea would have been implemented but for the invasion of the state by the tribesmen from Pakistan territory.

When in 1948 the National Conference Party formed the interim government in the state, it was expressly declared that, as soon as normal conditions were restored, steps would be taken to convene a national assembly based on adult suffrage to frame a constitution for the state.

When, even three years after that proven invasion by tribesmen from Pakistan, the conditions had not returned to normal, the general council of the All Jammu and Kashmir National Conference -- the foremost political party in the state -- passed a resolution on October 27, 1950 stating: "We view with great concern the repeated failure of the United Nations to redress the wrongs of aggression of which the people of the state continue to be victims. The failure, in its opinion, is due to the continued concessions given to Pakistan by placing a premium on her intransigence. The time has come when the initiative must be regained by the people to put an end to this drift and indecision."

The resolution therefore went on to recommend to the supreme national executive of the people (the yuvraj of Kashmir) "to take immediate steps for convening a constituent assembly.... embracing all sections of the people and all the constituents of the state for the purpose of determining the future shape and affiliation of the state of Jammu and Kashmir."

The objective was that "in this sovereign assembly embodying the supreme will of the people of the state, we shall give ourselves and our children a constitution worthy of the traditions of our freedom struggle and in accordance with the principles of New Kashmir."

Despite those most democratic and noble intentions of the proposed constituent assembly, the fifth paragraph of the Security Council resolution of March 30, 1951 had the gall to make its second inexplicable observation on the exercise.

It said therein that "any action that (constituent) assembly might attempt to take to determine the future shape and affiliation of the entire state or any part thereof would not constitute a disposition of the state in accordance with the above principle" ("of a free and impartial plebiscite").

That decision of the Security Council must be considered as one of the history's most shocking blows to democratic tenets. Here was the world's most powerful coterie of nations deciding that the will of a people is better determined by a spur-of-the-moment vote in a plebiscite (with all its imponderable dangers of a close finish) than by a well-considered and enduring debate in the people's duly-elected constituent assembly.

That Security Council decision was not only shocking and perverse but also callous. Despite its utter failure in getting Pakistan to vacate invaded territory even three years after what the Council itself had in its first resolution recognised as a situation of urgency, the Council chose to believe that, of the four million and odd people who constituted Jammu and Kashmir's population at that time, some three-fourths should be left to wallow in an uncertain future, in an indefinite ambience of continued suspended animation, while the remaining one-fourth stayed an isolated captive of the original invaders.

Tragically, a document indicates that even the government of India -- led at that time, remember, by Jawaharlal Nehru -- succumbed to the Security Council's obnoxious opinion. Rajeshwar Dayal, India's representative at the UN, is reported to have assured the Security Council on May 29, 1951 that "as far as the government of India is concerned, the constituent assembly for Kashmir is not intended to prejudice the issue before the Security Council."

Ironically, that same Rajeshwar Dayal has, 47 years later, said in a signed article in The Times of India, Bombay, of July 30, 1998, that the principle of self-determination cannot, according to accepted UN doctrine, be applied to areas within a state but only to colonial situations. A classic case, this, of being wise after the event.

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