J&K Constitution leaves no scope for Pakistan to agitate

Children, representing various religions, display a placard as they pay tribute to the soldiers who were martyred in the Uri attack (Photo: PTI)

The political and military establishment of Pakistan has been aiding and abetting terrorism in Kashmir for many decades as an open policy. The ongoing terrorist violence at their behest and the latest attack on Army camp in Uri, killing 18 defence personnel is alarming and an act of desperation. Quite obviously, their aim is to create a volatile situation, distrust and political instability. The constitutional and legal rights of the people can’t be belied or defeated howsoever the perpetrators may keep on shouting and propagating at the top of their voice. It only proves how uncivilised the Pakistan state has become.

What is Pakistan harping on Do they have any claim over Kashmir These issues need to be understood with clarity to obviate any confusion and misgivings in public. The answer lies in examination of constitutional status of Jammu and Kashmir and extent of territorial boundaries.

From a close scrutiny of various provisions of the J&K Constitution, many core issues stand settled, leaving no scope for Pakistan to agitate. It amply explains the constitutional position of J&K and territorial boundaries. Pakistan or separatists can’t plead ignorance, no matter, whether they accept it or not, but this solemn document rules out any claim or locus standi of Pakistan or separatists over J&K.

Article 3 of the Constitution, in unequivocal and unambiguous terms, provides that “the state of Jammu and Kashmir is and shall remain an integral part of India”. This position is unchangeable, since Article 147 prohibits any amendment. Even on the question of territories of the state of J&K, the matter is crystal clear as Article 4 provides that the areas comprising of the territories under sovereignty and suzerainty of the ruler of J&K state, as on August 15, 1947, are territories of J&K and consequently, the Union of India. Naturally, areas unauthorisedly occupied by Pakistan (PoK), including Gilgit-Baltistan are integral part of India. The undisputed position emerging from these provisions is that even the areas occupied by China which comprised the territories of the then Raja’s territories, form part of India. Chinese occupation too is unauthorised. The Pakistan establishment can’t ignore the Constitution of J&K and its implication.

Much water has flown under the Jhelum over these years. The J&K underwent tremendous changes in terms of legislative, executive and judicial powers. Most importantly, like some other states, J&K has ceased to be a princely state.

A democratic structure for governance of J&K, based on adult franchise, conferring voting right to every male and female was introduced. Previously, the ruler constituted a Praja Sabha, which was considered as a puppet body having no powers and the voting right was restricted to male members only. Under the new setup, a duly elected Assembly having 111 seats representing the entire state was established. This includes 24 seats for PoK, which lay vacant till date, even after five decades. PoK has not been allowed the representation, depriving them of a valuable democratic right.

A system of representative elected government was put in place. The hierarchical change took place by abolishing “Sadar-i-Riyasat”, as the head of state and its substitution by the “governor”, as the head of state. The state of J&K earlier had the “Prime Minister” which too was substituted by the “chief minister”, divesting the ruler from all powers and as a consequence, there remained no parallel establishment or power centre and the state of J&K came in the main stream. The Constitution of a duly elected state Assembly was a milestone in the history of J&K.

A democracy without the conduct of fair polls by an independent constitutional authority would have been futile. This was achieved by replacing the erstwhile structure for the conduct of elections by commissioners appointed by “Sadar-i-Riyasat” and entrusting the task to an independent body — “the Election Commission of India”. Thus integrating it with the system followed throughout the country as it conducts elections to the Lok Sabha and other state assemblies under the Constitution of India. On the judicial front as well, vide order of 1954, the jurisdiction of Supreme Court of India, was extended to the state.

We can’t be oblivious of the fact that various legislations enacted by the Parliament have been extended to J&K, with the concurrence of state government under Clause (I) Article 370 of the Constitution of India, by the President of India. It is impossible to give details of various constitutional amendments and other orders, issued from time to time conferring more and more powers, as they are voluminous. D.D. Thakur Committee had gone into these aspects extensively and observed that there is no going back. Suffice to say that there should be no confusion about J&K territorially and constitutionally and Pakistan has no claim whatsoever.

Pakistan has been repeatedly raising a false bogey of human rights violation to shield terrorists equating them with law abiding and bonafide citizens, which they are not. A criminal or terrorist doesn’t enjoy such equal rights and only has statutory protection while in custody. India has established a powerful independent body, National Human Rights Commission, headed by a retired Chief Justice of India and no other agency has competence.

Looking at the present prevailing scenario in J&K, it is not a conducive atmosphere for talks. Pakistan and the separatists will never accept constitutional position of state of J&K for their own political reasons. To the contrary, the ongoing war of words or exchange of threats or showdown at national and international platforms, cherished by a few, merely adds fuel to fire.

We can’t overlook the post-J&K Assembly election scenario. Perhaps, the coalition government failed to inspire public confidence, as the dissent is open now. The new guard failed to control the situation. We cannot also ignore a perceptible change of mindset and hardline approach across the country causing a serious sense of insecurity amongst the minorities and discomfort is simmering. Such tendencies do obstruct peace and amity.

No doubt, the spilling of human blood hurts the conscience of all, but resort to illegal activities or violence has no place. How can any sense prevail when Pakistan’s nefarious activities in training and infiltration of militants, funding of separatists and provocation of violence has been going on unabated

At no cost can Pakistan or a handful of separatists be allowed to divert the issues, when people of Kashmir don’t support their activities or the game plan. India as a nation has a duty to ensure that no Kashmiri should feel alienated, humiliated or denied equal rights and privileges. Any overstepping by any one will lead to an unpalatable situation. The Constitution of India enjoins on Government of India to fairly secure socio-political and economic interest on equitable basis in all three regions of J&K.

The writer is secretary, legal and human rights department AICC, and former chairman, Bar Council of Delhi