Chief minister, Omar Abdullah, successfully foiled repeated attempts in Kashmirs legislative assembly to discuss Afzal Gurus case. In this, as on much else, he obediently followed his fathers line.
As chief minister, Farooq Abdullah began touting the idea of making the Line of Control in Kashmir an international boundary between India and Pakistan with full knowledge of the fact that the people would not accept it. His minister for tourism, Ajatshatru Singh, took him at his word and proposed that the Kashmir assembly pass a resolution endorsing the partition proposal.
But Farooq Abdullah questioned the assemblys very right to discuss the issue. He said on March 1, 1997: We have no right to debate on this issue. It is for the Union government and the prime minister to take any view on the subject. Worse, we have no right to debate on the Line of Actual Control in the state assembly. That right very much exists.
The legislative assembly in Srinagar enjoys greater power than any other legislative assembly in India. Article 253 of the constitution of India empowers parliament to legislate even on matters in the state list for implementing any treaty, agreement or convention with any other country.
The Constitution (application to Jammu and Kashmir) Order, 1954 applies Article 253 to Kashmir with this overriding proviso: Provided that after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of Jammu and Kashmir shall be made by the government of India without the consent of the government of Kashmir.
What else does it imply but that a decision regarding the disposition of Kashmir is yet to be made by international agreement? This order, made by the president on May 14, 1954, is still in force.
Thus the constitution recognises that the future of Kashmir is yet to be decided and that its people will have a decisive voice on it. Consent of the government implies consent of a democratic government responsible to an assembly elected in a free and fair election.
The assembly cannot legislate on foreign affairs or bind India and Pakistan. But a resolution adopted by it will represent the voice of the people and wield moral force. Hence the rigged elections. Sheikh Abdullah was permitted to contest the polls in 1977 only after he had concluded the fateful accord with Indira Gandhi in February 1975. She herself wrecked the accord in 1977 and it lost both legal efficacy and moral force. At any rate Article 253 and its proviso survive to this day.
Despite the rejection of their mercy petitions by the president, Tamil Nadus chief minister J. Jayalalithaa herself moved a resolution in the state assembly, on Aug 30 2011, recommending commutation of the death sentences awarded to three convicts in the Rajiv Gandhi assassination case to life imprisonment respecting the sentiments of the people of Tamil Nadu and the views of the political parties in Tamil Nadu.
Omar Abdullah tweeted: If the Jammu & Kashmir assembly had passed a resolution similar to the Tamil Nadu one for Afzal Guru, could the reaction have been muted? I think not. Shortly thereafter on Sept 28, 2011 he had the resolution killed. It was moved by the fearless independent member of the legislative assembly Abdul Rashid. Orchestrated uproars forced frequent adjournments.
Afzal Guru was executed on Feb 9, 2013. When the assembly met three adjournment motions were moved by Omar Abdullahs National Conference and the opposition Peoples Democratic Party to discuss the delay in handing over his body to his family. There was debate but no vote. The issue has wider implications the right of a legislative assembly in a federation to express its views on an issue of foreign policy which affects it or is of national or international significance. Courts have ruled that even municipal corporations have such a right.
In 1930 Sinds judicial commissioners court held that the Karachi Municipal Corporation was entitled to discuss political subjects by a resolution of four paras. One expressed regret at the arrest and conviction of a corporator and urged his better treatment in jail. Another sought leave for municipal employees convicted for any political office. Two others protested at the imprisonment of Gandhi and at not placing some political prisoners in the A Class of prisoners. Rupchand Bilaram, assistant judicial commissioner, said: I am not prepared to hold that for the attainment of public objects it may not in certain instances be necessary or in any case be not proper for them to discuss political subjects or that the discussion of such subjects is ultra vires.
On July 10, 1958, a resolution was moved in the Bombay Municipal Corporation expressing its deep regret about the execution of Mr Imre Nagy, a former prime minister of Hungary and its horror at the crime. The mayor rejected a point of order challenging the corporations power to discuss such a motion. A single judge, Justice K.T. Desai, allowed the writ petition challenging his ruling. On appeal, a division bench reversed his judgement on April 3, 1959. Rupchand Bilarams ruling was approved. The court held that the corporation was entitled to impart such public instruction. Does a legislative assembly in a federation enjoy less power than a municipal corporation?
The assembly in Srinagar has surely greater moral and legal right to opine on political issues than any other assembly in India. It is the centres political stranglehold, which it enjoys through a coalition with a central party, the Congress, and the Kashmir governments servility which prevent the assembly from exercising its power and performing its duty. There is no constitutional impediment to its self-assertion. –Courtesy Dawn
The writer is an eminent constitutional lawyer and author of repute.
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