It’s unfortunate that politicians and commentators, who term separatists as stakeholders, urge the Government to talk to them to resolve the non-existent Kashmir issue
India is a sovereign state, and not a banana republic. It has its own territory, people, Army and Government. Article 1 of the Indian Constitution defines the territories of India. It, in unequivocal terms, says that no Government in the country could alter the political map of the country. Under this Article, India can acquire additional territory but cannot cede an inch of Indian land to any other country. The First Schedule of the Constitution contains the names of the States which form the Union of India, and Jammu & Kashmir is placed at number 15 in the list of States.
Article 19 of the Constitution gives unbridled freedom to all Indians to “move freely” across the country and “settle in any part of the territory of India”. In addition, it gives all citizens the right to speech, assemble and association. At the same time, it lays down conditions that nothing shall be done which even remotely challenges the sovereignty of the nation and undermine its territorial integrity. Those who challenge the sovereignty of the country and seek to undermine its territorial integrity are considered seditionists and the Indian Penal Code/Indian Criminal Procedure Code and Jammu & Kashmir Ranbir ‘Dand-Bidhi’ (Ranbir Penal Code) contain definite laws which bring to justice elements hostile to the country.
The whole truth is that Article I and Article 19 form part of the basic structure of the Indian Constitution and cannot be tinkered with. Jammu & Kashmir is the solitary State in the India Union, which has a separate Constitution under the (highly contested) Article 370 of the Indian Constitution. But it, like the Indian Constitution, also says that Jammu & Kashmir is an integral part of India and its political status cannot be altered. Section III of the Jammu & Kashmir Constitution, which was adopted by the Jammu & Kashmir Constituent Assembly in November 1956, and enforced on January 26, 1957, unambiguously defines the political status of the State vis-à-vis India. It says that “the State of Jammu & Kashmir is and shall be an integral part of the Union of India”. It also says that “the territory of the State shall comprise the territories which on the 15th day of August 1947 were under the sovereignty or Suzerainty of the Ruler of the State”.
The fact of the matter is that the Constitution of India and the Jammu & Kashmir Constitution, unlike the erstwhile Constitution of the Soviet Union, do not give the right to any part of the country or any section of population to secede from India under any condition whatsoever. The Jammu & Kashmir Constitution is not sovereign; it is subordinate to the Indian Constitution. The Supreme Court, in a landmark judgment on December 16, 2016, said that Jammu & Kashmir had no vestige of sovereignty outside the Constitution of India.
The operative part of the judgement, which was delivered by the Supreme Court Bench, consisting of Justice Kurian Joseph and RF Nariman, read like this: “It is thus clear that the State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India, it is, therefore, wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves. The residents of Jammu & Kashmir are first and foremost citizens of India”.
The apex court gave this historic verdict while upturning the judgment of the Jammu & Kashmir High Court on the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (SARFAESI Act). The Jammu & Kashmir High Court had ruled that the SARFAESI Act could not be made applicable to the State as it was a Central law and that Jammu & Kashmir State was sovereign. The Supreme Court verdict was unambiguous: Indian Constitution is supreme and Jammu & Kashmir State could not have a regime that was outside it.
The point is that the Constitution of India represents the will of the nation and, hence, the nation is the only stakeholder in Jammu & Kashmir, like in other States and Union Territories of the Indian Union. Of course, people are stakeholders, but in matters relating to governance, administration, development, jobs, education, healthcare, election system and so on and so forth, they have the natural right to comment on the functioning of the Government, fight for their fundamental rights and even demand dismissal of the Government if it, in their opinion, is unfit to govern or has failed to deliver. They can also demand creation of new States, as the Indian Constitution provides for the creation of new States. It was the people’s movement that Punjab was trifurcated into Punjab, Himachal Pradesh and Haryana and Bihar, Uttar Pradesh and Andhra Pradesh were bifurcated to meet the genuine needs of the people despite stiff opposition from some influential quarters.
Unfortunately, we have in our country certain politicians, commentators and so-called trouble-shooters and conflict-managers who term the separatists in Kashmir as “stakeholders” and repeatedly urge the Union Government to talk to them to resolve the otherwise non-existent Kashmir issue. Thus, they negate the very cardinal principles of the state and sovereignty.
(The writer is former Dean, Jammu University’s Faculty of Social Sciences)