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| Issue of J&K Accession: And now it's SM Krishna's turn | | | RUSTAM
EARLY TIMES REPORT
JAMMU, Oct 19: Foreign Minister SM Krishna's ludicrous assertion that Jammu and Kashmir and Mysore were identical cases created an impression that the accession of the state to India was conditional. It was not. The Indian Independence Act of 1947 under which Muslim Pakistan came into being nowhere envisaged conditional accession. In fact, it could not provide for conditional accession because it was not within the purview of the British Parliament, which enacted the Independence Act. Besides, the Independence Act didn't want the princely states in India to remain in a "state of suspense" and uncertainty. It vested in the rulers of the princely states unbridled and absolute power "in their discretion" to accede to either the Indian or the Pakistani Dominion.
It's true that the Dominion Governor-General had the power to accept or reject the accession offer, but he didn't have the power to lay down conditions or keep the issue open. The reason was that the signing of the instrument of accession with the Indian Dominion had made the Dominion Government responsible for the defence, foreign affairs and communications of the princely states acceding to it, including the princely State of Jammu and Kashmir. None of the Dominions had the power to bargain on the issue of accession over the head of the Maharaja of the princely state.
The fact of the matter is that the undertaking given by the Indian Dominion Government in the Security Council that final decision on the issue would be taken after ascertaining the wishes of the people of Jammu and Kashmir was "wholly ultra vires the Independence Act and the constitutional power of the two Dominions." It was an act of constitutional impropriety. But more than that, it was also "ultra vires the charter of the Security Council." It needs to be underlined that Security Council is not a tribunal "where bargains made between states on expediency or political considerations can be recorded and enforced."
Besides, the Indian Constitution, which was adopted by the Constituent Assembly in 1949, didn't confer the power on the Government of India to negotiate any agreement on the political status and fate of Jammu and Kashmir State. Nor did it envisage a situation that would empower the Government of India to decide the fate of Jammu and Kashmir in consultation with Pakistan, which has been seeking to grab it ever since 1947 on the ground that it is a Muslim-majority area. There is no provision in the Indian Constitution that empowers the Government of India to tell Pakistan that it will "re-decide the issue of accession of Jammu and Kashmir by holding a plebiscite in the state after Pakistan withdraws aggression." The instrument of accession doesn't say so. Nor did the Maharaja of Jammu and Kashmir accept this condition or lay down this condition. Nor could the Government of India attach any condition whatever to acceptance of the offer of accession. If the nominated Governor-General of India, Lord Mountbatten, attached certain conditions, they need to be dismissed with contempt as they negate the very statutory powers conferred on the rulers of the princely states by the Indian Independence Act. It would not be out of place to mention here that the three subjects --- defence, foreign affairs and communications - on the basis of which Jammu and Kashmir acceded to the Indian Dominion did not make the act of accession depend on the will of the people of the state by ignoring the Maharaja of Jammu and Kashmir.
Indian political leaders, the so-called conflict-managers or trouble-shooters just cannot be allowed to make common cause with Chief Minister Omar Abdullah and others of his ilk, including the Geelanis, the Mirwaizs, the Maliks and so on, to create uncertainty in the state or create a vacuum by such an unconstitutional act. No one argue or suggest that once the Maharaja's offer of accession was accepted by the Dominion Government/Governor-General of India, accession of Jammu and Kashmir to India didn't become absolute, final and non-negotiable. That finality was statutory and none in the country has the power to make the accession "contingent on conditions imposed outside the powers of the statute." Even if someone says so on the so-called moral grounds, none in the country has the authority to override the Indian Constitution and the related statutory provisions.
It is true that Prime Minister Jawaharlal Nehru did declare from the housetop that the issue of accession will finally be resolved by organizing a plebiscite in Jammu and Kashmir. His declaration is not a binding because whatever he said was outside the Indian Constitution. No Indian leader can keep ten million people in Jammu and Kashmir in a state suspense as to what would happen to them. It was the Maharaja of the state who had to take a decision on the issue and he took it 63 years ago.
It would be better if SM Krishna stops airing controversial views. He is not holding an ordinary portfolio. He is holding the portfolio of external affairs. Union Home Minister P Chidambaram, who also jumped on to the Krishna's and Omar Abdullah's bandwagon on Monday, need to maintain cool as well. He should not make any statement in a haste that has the potential of strengthening the hands of the Kashmiri separatists. Both of them must remember that it was the uncalled for statement of Nehru on plebiscite that complicated things for India in Kashmir. (Concluded) |
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