Is it constitutional to ban demand for plebiscite in Kashmir

Writer Arundhati Roy’s remarks on Kashmir triggered a with demands of sedition charges against her. But she is not the first one in India to be cornered on Kashmir issue.  In March 1994, Supreme Court lifted ban on Jammat-e-Islami Hind clamped in the aftermath of Babri Masjid demolition. Although banned along with RSS and VHP, Jammat was charged with preaching secession of Kashmir. We reproduce an article by A G Noorani. The article assumes significance in the current debate.

In the light of Supreme Court’s 19-page judgment delivered by Justice P B Sawant and S Mohan on March 18, 1994, holding that the government of India “has failed to justify the immediate ban imposed on the Jammat-e-Islami, Hind under the proviso to Section 3 of the Unlawful Activities (Prevention) Act, 1967, a fundamental question arises. Is the Act of 1967 constitutionally valid in so far as it forbids the plea of plebiscite in or independence of Kashmir? Is not an Indian citizen entitled, however unwisely, to urge either of these courses for a settlement of the Kashmir dispute?

Article 19(1)(a) of the Constitution embodies the fundamental right to freedom of speech and expression. This is subject to the limitations which are spelt out in clause (2) to Article 19. The state may impose “reasonable restrictions” by “law” or any of the grounds mentioned. One of them is “the sovereignty and integrity of India”—an expression inserted by the 16th Constitution Amendment in 1963.

But how “reasonable” can a restriction be which bans the citizen from asserting today what the Constitution itself says and what the government of India said till 1954? Article 253 empowers parliament to legislate even on matters in the State List “for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference association or other body”.

The Constitution (Application to Jammu and Kashmir) Order, 1954 applies Article 253 to Kashmir with one overriding proviso. It reads thus: “Provided that after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, no decision affecting the dispossession of the state of Jammu and Kashmir, shall be made by the government of India without the consent of the government of that state”. What else does it imply, but that a “decision” regarding the “dispossession” of Kashmir was yet to be made by international “agreement” or at an “international conference”? There is no such provision regarding any other state. As late as the end of 1953 India and Pakistan were negotiating a plebiscite in Kashmir.

The order of 1954 was made by the President on May 14, 1954. The very next day, on May 15, 1954, Jawaharlal Nehru said: “India still stands by her international commitments on the Kashmir issue and will implement them at the appropriate time” (vide this writers’ Kashmir Question, Bombay, 1964, P-68).

Why, the entire Article 370—which the union home minister, S. B. Chavan, said on March 31, 1993 was “the only link” between the state and the union—itslef envisages its own death by permitting, not the integration of the “Sangh Parivar”, but plebiscite. It was drafted it in 1949 at a time, when negotiations on a plebiscite were on. When Pakistan objected to the UN Commission on India and Pakistan, Girja Shankar Bajpayee, then secretary-general of the ministry of external affairs, wrote to the UNCIP on November 21, 1949 that it did not preclude plebiscite. Krishna Menon told the UN Security Council on February 8, 1957: “The accession [of Kashmir], it is true, can be terminated by our sovereign will. It is possible for any sovereign state to cede territory”. Why, then, can its citizen not urge it, if she or he so felt in its interests that the state do, in deed, exercise, its “sovereign will” by cession?

Krishna Menon continued more explicitly: “If as a result of plebiscite, if ever it did come, the people decided that they did not want to stay with India, then our duty at that time would be to adopt those constitutional procedures which would enable us to separate that territory”. That procedure is laid down in clause (3) of Article 370—presidential order to “declare that this Article shall cease to be operative”. (For a discussion of the mess which New Delhi has made of Article 370, see the writer’s essay “Article 370: Broken Pledges and Flawed Secularism” in Hindus and Others edited by Gyanendra Pandey, Viking, 1993, pp 198-224.)

The government of India’s policy on plebiscite changed from 1955. In this writer’s view, after Pakistan’s aggression in 1965, neither plebiscite nor independence was possible. But the dispute remained: only some of the options for an accord were not viable any longer. It is open to another citizen to disagree. And she or he would be perfectly within her or his constitutional rights in advocating a plebiscite, however, wrong-headedly. For, the Constitution and the fundamental rights are not dependent on changes in the government of India’s policy. Nor is there interpretation, to vary according to the policy of the day. The judiciary must be indifferent to such considerations.

If the Constitution as enacted in 1949 and amplified in respect of Kashmir in 1954 considers the “dispossession” of the state of Jammu and Kashmir to be an open question, subsequent changes in the government’s policy cannot ban an Indian citizen from making that very assertion which the Constitution permits her or him to make. Citizens don’t have to trim their sails according to the winds that blow from the South Block in New Delhi. One is aware, though that not a few in media and academia do just that.

As has been pointed out in the author’s essay on Article 370, referred to above, from the jaws of the mess that has been made of Article 370 a vital political gain can be retrieved. All accretions to the union’s power after the Constituent Assembly met on October 31, 1951 are void save just the one which the Assembly itself approved in 1952 and which was brought into force on November 17, 1952.

Likewise, it is perfectly possible and honest for a Kashmiri to contest elections to the state assembly and accept the Constitution while retreating his stand on plebiscite or independence. Reason? The Constitution itself leaves the “dispossession” of Kashmir open. The consent of a freely elected state government is necessary. The people of Kashmir are very much a party to the Kashmir dispute.

The article first appeared in the  Economic and Political Weekly on Mar 26, 1994


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