NAQSH-e-FARYADI HAIN KIS KE SHAUQ-e-TAHREER KA;KAAGZEE HAIN PAIRAHAN HAR PAIKARE TASVEER KA
FOR THE DOUBTING THOMASES
PANUN KASHMIR,A POSSIBILITY OR A PIPE DREAM
Preface to the Paper: On the onset of Islamic Insurgency in the mountainous State of Jammu and Kashmir in the year 1989-90 a small but significant ethnic minority called Kashmiri Pandits were forced to leave their homes. Though estimates vary on the number of those who were forced to leave Kashmir valley in the winter of 1989-90, it is broadly believed, on the basis of various figures available with the government, that a total of 56000 plus families forcibly migrated to the plains of India. The exodus which followed a spate of killings and vandalisation /burning of Pandit houses and places of religious worship was described by the NHRC or the National Human Rights Commission as “akin to genocide”.
As a response to the ethnic cleansing, a frontline organisation of Kashmiri Pandits called the Panun Kashmir (Our Kashmir) demanded the following:
· The establishment of a separate homeland for Kashmiri Hindus in the Kashmir Valley, comprising the regions of the valley to the East and North of river Jehlum;
· That the constitution of India be applied in letter and spirit in the homeland in order to ensure right to life, liberty, freedom of expression, faith, equality and rule of law;
· That their homeland be placed under central administration with a Union Territory Status till it evolves its own economic and political infrastructure;
· That all the seven lakh Kashmiri Hindus, which includes those who have been driven out of Kashmir in the past and yearn to return to their homeland and those who were forced to leave on account of the terrorist violence in Kashmir, be settled in the homeland on equitable basis with dignity and honour.
Various “un-constitutional experts” whom we shall call “Doubting Thomases” here have from time to time raised the issue of the homeland (UT Of Panun Kashmir) being a constitutional & political impossibility.
Thus in this paper we will try and look at the reorganisation of States in India and what factors caused the reorganisation, whether re-organisation of territories can happen on the basis of ethnicity and thus address the issue of whether the proposed Union Territory of Panun Kashmir is constitutionally and politically possible or not.
I therefore submit my hypothesis as under:
There is nothing that prevents the formation of a Union Territory of Panun Kashmir, either under the Indian Constitution or the Constitution of Jammu and Kashmir. It will thus be a question of the will & determination of the Panun Kashmir organisation to determine the result of the Union Territory of Panun Kashmir.
History of Reorganisation of States in India:
India was an amalgamation of more than 600 princely States at the time of British Raj. Upon the dawn of Independence in South Asia the Hindu Majority Areas became India while the Muslim majority became Pakistan. When the Constitution came into force on January 26, 1950, India became a union of states with extensive autonomy and some states administered by the central government. Under the Constitution, there were three kinds of states — nine Part A states, eight Part B states and 10 Part C states. Part A states were former governors’ provinces in British India — Assam, Bengal, Bihar, Bombay, Madras, Orissa, Punjab, Madhya Pradesh and Uttar Pradesh. Part B states were the former princely states such as Hyderabad, Saurashtra, Mysore, Travancore-Cochin, Madhya Bharat, Vindhya Pradesh, Patiala & East Punjab States Union and Rajasthan. Part C states included a few princely states as well as former provinces governed by chief commissioners such as Kutch, Himachal Pradesh, Coorg, Manipur, Tripura and so on. J&K was granted special status (under article 370 ) as a result of its merger into the Indian State upon being attacked by Pakistani Trained Tribals.
How one man’s sacrifice changed the course of the State Reorganization:
The winter of 1952 could be termed as a watershed in the reorganization of the Indian States. A petite Gandhian Potti Sriramulu fasted for 56 days and died while fasting. His death unleashed a huge wave of protests not just in Madras where he fasted for the statehood of Andhra Pradesh but all over South India. All through his period of fasting Nehru, the left leaning moderate first Prime Minister of India, maintained a stony silence and made no efforts to save the dying man. But that’s for another day. What it however did was that it forced Nehru into announcing a separate statehood for Andhra Pradesh , just three days after Sriramulu’s death.
Jawaharlal Nehru was left with no option but to appoint a State Organization Commission for creation of States on the basis of linguistic similarities. The State Reorganisation Act came into effect from 1st of Nov,1956. Simultaneously an amendment was made to the constitution which is the now the famous Seventh Amendment. The distinction between Part A and Part B states was removed, which were now known simply as "states". A new type of entity, the union territory, replaced the classification as a Part C or Part D state.
But this was not the end of the reorganization of the states but just the beginning.
It is very important to understand the logic behind the formation of the new states and union territories in order to know whether the proposed Union Territory is possible or not. We shall in this light examine how we arrived at the present 28 states and 7 union territories and as a case we shall study the reorganisation of the Punjab (which was not done on the basis of linguistics) and North East (where states were created on the basis of ethnicity) and take Mizoram as a case study(where a single hill district attained statehood).
India has witnessed three main reorganizations, the first which we have already mentioned above, in 1956, the second in late 1960’s (when Punjab was Split) and 1970’s when the northeast was split up and several new states were created following the formation of the State of Nagaland and the third in 2000 when the states of Jharkhand, Uttarakhand and Chattisgarh were created. So as we can see the formation of the states has been a continuous process with new states and union territories being created from time to time in the Federal Structure of India.
Before we move to the process of creating new States or Union Territories and the constitutional jargon, which incidentally isn’t much, let us study what caused these states to come to fore. Once the principle of linguistic states had been accepted it was only a matter of time that other considerations such as ethnicity would come to fore as a reason for formation of new territories and that is why precisely what happened. In the first reorganization of states Punjab was not touched. It remained as a whole comprising of the former princely state of Himachal Pradesh, the now Haryana and the present day Punjab. The Akaali Dal which was a minority in the erstwhile united Punjab launched an agitation to carve out a Punjabi Suba. There was a lot of Politics behind this, the details of which may only lengthen this paper but it would suffice to say that a mask of language was put on what was purely an ethnic identity question or state or one can even say a matter of religious identity. The Akali Dal manifesto to the SRC declares that, "The true test of democracy, in the opinion of the Shiromani Akali Dal, is that the minorities should feel that they are really free and equal partners in the destiny of their country...to bring home a sense of freedom to the Sikhs, it is vital that there should be a Punjabi speaking language and culture. The Shiromani Akali Dal has reason to believe that a Punjabi-speaking province may give the Sikhs the needful security.”
Read again...give Sikhs the needful security
The manifesto makes no bones about the real reason for the demand for formation of a new state .But as one would imagine that it would be an anathema to Nehru as it would be to a lot of so called moderates like our doubting Thomas. The manifesto is abundantly clear as to why the Sikhs and not Punjabis want a new State. Even today most of the low lying hilly areas of Himachal Pradesh have linguistic and cultural similarities with Punjabis, far greater than they have with people living up in the mountains whose language also borrows most of its syntax and word bank from the Punjabi language.
Eventually in the September of 1966 the demand for a Punjabi Suba was accepted and the state was trifurcated when it could simply have been bifurcated because no one else asked for a separate state. The basis given for trifurcation by the Shastri government (Nehru had passed away by then) was that people who speak a derivative of the Braj Bhasha would have a separate state of Haryana and the ones who spoke Pahari or Kangri would be merged with Himachal Pardesh. The government wanted a façade of the linguistically organized state to remain though it was very clear as to why the State of Punjab was created. What this reorganization did was that Sikhs became a majority in the new Punjabi Suba or Punjab as it is called. It is particular importance to this paper that there were no deaths during this agitation although a huge number of people did go to jails.
Now let us move to the more difficult area of North East where reorganization of the Seven Sisters from the unwanted mother Assam, who eventually became a sister herself, took place purely on the basis of preservation of the distinct ethnic character of each of the tribes.
The regional composition of the North East at the time of independence consisted of the Assam plains of the old Assam Province, the hill districts, the North Eastern Frontier tracts (NEFT) of the North Eastern borderland, and the princely states of Manipur and Tripura, both of which opted for merger with India in 1949.As for administrative changes in the wake of the transfer of power on 15th August, the administrative jurisdiction of the excluded and partially excluded areas in the hills of Assam was transferred to the government of Assam which acted on behalf of the Government of India.
The Constitution promulgated in 1950 contained a special provision in the form of the Sixth Schedule for the administration of “tribal” areas that were meant to protect the tribal people who were living scattered throughout the country. The provision was applied to the ethnic groups in the hill region of the North East.
Under it, the “tribal” areas in the North East were divided into two parts, Part A and Part B. The United Khasi and Jaintia Hills District, the Garo Hills District,the Lushai Hills District, the Naga Hills District, the North Cachar Hills District,and the Mikir Hills District were placed in Part A as Autonomous Districts administered by the Government of Assam, The North East Frontier Tract, the Balipara Frontier Tract, the Tirap Frontier Tract, the Abor Hilland Mishmi Hills Districts and the Naga Tribal Area came into Part B, which was administered by the Governor of Assam acting as Agent of the President of India. Tripura and Manipur were not promoted to states but were made special administrative regions under the control of central government. Hereafter, state formation in the North East followed a process whereby the area once unified into Assam was separated and ultimately turned into a state.
Stupid as it may seem, the SRC had suggested that the State of Assam be enlarged to include the princely states of Manipur and Tripura. The ethnic people of the entire North East were up in arms and some literally were and demanded separate states for separate ethnicities. Language as a basis had once again been thrown to dogs. Nagaland was the first state to be created in 1963 .But our considerations lie elsewhere. The representatives of Hill Districts, yes Hill Districts, which were then one district hill towns expressed the hope of forming their own hill state. Far Fetched as it may have seemed for the Ghasis, Jantiyas and Khasis to form a state of Meghalaya it did happen .In 1970 the autonomous Meghalaya State was established which later became a full fledged state in 1972.Meghalaya was still 3 hill districts but imagine a single hill district becoming a full fledged state. The Mizo Hills area which was Lushia Hill District or Mizo Hill District of Assam in 1954 was accorded the Status of a Union Territory in 1972 and attained full statehood in 1987.Now who but an optimist and he who believed in the idea of a separate State of Mizoram would have imagined that one day it would be a separate state within the Federal Structure of India.
So we have no dearth of examples of states and Union Territories being created on one pretext or another and despite Nehru’s wishes of a hugely centralized administrative machinery the formation of new states and reorganisation is and was not just a political compulsion to keep the Union of India together and but an acceptance of the diversity of the various constituents of Indian Union accompanied with the frailty or strength of the Federal Structure depending upon how we look at it. Whatever may be the reasons, the truth is that new States were created and the Indian state like the Universe though may be whole but is in a constant state of making and unmaking within.
That brings us to the important Part of this paper which will deal with the process of creating of a new Union Territory or a State with special reference to Jammu and Kashmir in the context of it having Article 370 and a separate constitution.
Process of formation of a UT/State within the Indian Dominion
I will try and make this as lucid as I possibly can so that the spirit of the Indian Constitution is not lost on us. The Parliament has the power to form a new state or territory within the Indian Dominion. Articles 2 and 3 of the Indian Constitution bestow on the Parliament the power to establish new states on such terms and conditions as it deems fit. The Article 3 of the Indian Constitution which deals with the power and procedure to establish new states reads
3. Formation of new States and alteration of areas, boundaries or names of existing States.—Parliament may by law—
(a)form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State:
Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.
2 THE CONSTITUTION OF INDIA 3
Explanation I.—In this article, in clauses (a) to (e), “State” includes a Union territory, but in the proviso, “State” does not include a Union territory.
Explanation II.—The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory.
We have to read the Articles 2 &3 with reference to the 4th Article of the Constitution which reads.
4. Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters.—(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.
(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.
It is very important to refer to the 1st Schedule of the Indian Constitution which clearly defines the geographical area of the state of Jammu and Kashmir.
So the creation of the Union Territory is the prerogative of the President and the Parliament and the State Legislature’s interference is limited to just giving its opinion. Although on account of Article 370 of The Indian Constitution which gives special but temporary status to the State we have to be careful to read the law. The Parliament can make laws but the applicability of such powers or even the power to make such laws in case of J&K is limited to those matters in Union and Concurrent Lists (we will see later in our paper how Parliament’s supremacy holds even in matters related to State List) which unfortunately is silent on the re-organisation of the State. So are we at a dead end ? Well far from it. The President has the power to issue a public notification which may either cease the powers of the Article completely or they may be applicable with certain provisions or modifications. It is under those powers that the 1953 position when India Parliament or the Central Government controlled only Four subjects (defence, external affairs, communications and ancillary) now holds a sway over most of the policy making and law making instruments. We must also read the Instrument of Accession to know how land can be acquired in the State of Jammu and Kashmir. The point six of the instrument reads:
Nothing in this Instrument shall empower the Dominion Legislature to make any law for this State authorizing the compulsory acquisition of land for any purpose, but I hereby undertake that should the Dominion for the purpose of a Dominion law which applies in this State deem it necessary to acquire any land, I will at their request acquire the land at their expense, or, if the land belongs to me transfer it to them on such terms as may be agreed or, in default of agreement, determined by an arbitrator to be appointed by the Chief Justice of India.
There also is nothing in either the article 370 or the constitution of J&K or the Instrument of Accession or the Indian Constitution that forbids the formation of the UT within the State of Jammu and Kashmir. Yes there may be no precedence on the issue but then there wasn’t any precedence of the formation of Hill Districts as States in the North East.
Also noteworthy are numerous references in the constitution especially in the part of the constitution concerning the relations between the Union and States i.e Part XI. Time and again it reiterates the Power of the Parliament even regarding those issues which may fall in the purview of the State List. In the same Chapter mentions and I quote,” 251. Inconsistency between laws made by Parliament under articles 249 and 250 and laws made by the Legislatures of States.—Nothing in articles 249 and 250 shall restrict the power of the Legislature of a State to make any law which under this Constitution it has power to make, but if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said articles power to make, the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have effect, be inoperative.
We will also look at how the amendment will be made once the bill is passed in both houses of Parliament and an Act comes into effect. It is then a mere formality that the necessary amendments as they may be for the creation of the new state/UT. Article 368 confers on the Parliament to make amendments. Although it is not within the scope of this paper to define the procedure of the covenants or riders yet we must know this simply to understand the process. The Article 368 reads as follows:
368. Power of Parliament to amend the Constitution and procedure therefor.— (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in—
(a) article 54, article 55, article 73, article 162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
(3) Nothing in article 13 shall apply to any amendment made under this article.
[(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.]
For the formation of the UT the amendment makes no changes in the a) to e) section of the Article 368(2).
States/Union Territories can be created not just on the basis of linguistical similarities or dis-similarities but on the basis of preservation of ethnicities and in some cases even religious identity of a particular group.
The Formation of the Union Territory/State is purely a prerogative of the Parliament and even if the State Legislature from which the new territory is to be carved votes the proposal out (though the President only seeks their views and not consent) yet the supremacy of the Parliament will prevail.
The Proposed Union Territory of Panun Kashmir has a valid reason to be established because it will help stop the erasure of the unique ethnic culture and tradition of the Kashmiri Pandits.
The Union Territory of Panun Kashmir-How and When:
Now that we established that there is a precedent for creation of Union Territories on the basis of ethnicities and States on the basis of religious similarities and the Constitution is not an impediment in the creation of the UT in the State of Jammu and Kashmir, we must ask how and when it is likely to be established.
Some two years back the Legislative Assembly of the Madhya Pradesh State (on the insistence of the Panun Kashmir organisation) passed a resolution by voice vote asking both the Centre and the State Government to carve out a separate area within the State of Jammu and Kashmir for the ethnic minority called Kashmiri Pandits. Though the resolution may have no legal or constitutional validity it does point to how and when the Panun Kashmir organisation can push forward the passage of the bill to create UT of Panun Kashmir. The passage of the bill can be smooth only when there is a favourable dispensation (towards the idea) and when the dispensation has numbers on its side to have the bill passed through both houses of the Parliament. Difficult as it may seem today it is not an impossible task by any means. There is every likelihood that in near future (30-40 years) time a dispensation (like the one of Shivraj Singh Chauhan, the MP-CM) will rule in the Centre and will have numbers to pass the resolution .It is then that the Panun Kashmir Organisation should press for a resolution of the issue and have a bill passed in both houses of the Parliament. Till that time they need to keep working hard in raising the political pitch on the issue, a sizeable part of that work is already done or is in the process of being accomplished. There is no doubt today that most in the media or policy making circles or even the successive Government at the Centre recognize(only PK has represented Kashmiri Pandits on all round table Kashmir Committee set up by the government) Panun Kashmir as the organization representing Pandits though every now and then some formations like third front in the Centre do prop up but they vanish as fast as they appear. The State Legislature will never be favourably inclined towards Panun Kashmir and towards Pandits at large but be that as it may ,its negative feedback on the issue or its throwing out or not admitting the bill has no bearing once the Parliament has passed the bill.
We must also understand that formation of UT’s or new States does take time and to expect results like a cup of instant coffee may just not be possible. So for those who ask how long I must say, long enough as it has been for every other state be it Punjab or be it Mizoram. Although we have gone into some detail over the history, politics and constitution with regard to formation of new states I reiterate that even if there is no history or even if the constitution does not have the necessary provisions the will (here I mean intensity and not mere numbers) of the people who want the state will eventually prevail over the them and provisions will be and always have been made to accommodate the aspirations and genuine demands of the people. For those doubting Thomases who may keep parroting that it is a constitutionally impossibility we have shown it is not, but more important than that for them and for us is to understand that many nations have been created and many have merged since the formation of the United Nations .None of them had a constitutional provision to either merge or break, so it is only for the naysayers or the unbelievers to look for a written word as a permission to bring forth a new idea or implement a new one and that too when the written word is not divine but written by mere mortals like us or by those on whom we enshrined the responsibility of writing the constitution.
This paper is definitely not the final word on the issue and I am willing to stand corrected, guided and evolved by people who have more insight and knowledge of the issue at hand.I hope that this rather preliminary note of mine spurs the real constitutional experts to delve deeper into the issue, with their knowledge and erudition into the understanding of the constitution. It should also bring this issue to debate and the Kashmiri Pandits as a community should thread bare discuss the law and politics which will make the UT of Panun Kashmir a reality.
1. The Constitution of India.
2. The Constitution of Jammu and Kashmir.
3. Instrument of Accession
4. The States Reorganisation Act 1956.
5. The Punjab Reorganisation Act 1966.
6. The North Eastern States (Re-organisation) Amendment Bill 2011 as presented in Lok Sabha.
7. Marg Darshan Resolution of Panun Kashmir adopted in 1991.
8. Singh, Gurharpal, 1995, The Punjab Crisis Since 1984: A Reassessment’, Ethnic and racial Studies Vol. 18.
9. Phadnis, Urmila, 1989, Ethnicity and Nation-building in South Asia, New Delhi, Sage Publications.
10. Pal, Kiran, 1993, Tension Areas in Center-State Relations, New Delhi, Surid Publications.