Legislator, Nizamuddin Bhat’s  private bill, regarding power to delete Article 3 of the constitution of J&K has stirred a hornets nest. People’s Democratic Party has disassociated itself from the bill. It’s chief Spokesman, Mr. Nayeem Akhtar has even gone to the extent of calling  Bhat’s move as manifestation of a virulent disease, the original source whereof is traceable to Chief Minster, Omar Abdullah’s famous “Accession –but-not-merger” speech in the  Legislative Assembly.
Clarifying his motives, Mr. Bhat has stated that his intention was only to remove the restriction on amendment as envisaged in Section 147 of the Jammu and Kashmir Constitution. He clarified that he did not bring an amendment to remove Section 3 or Section 5. While the former declares J&K State as an integral part of India, the latter deals with the extent of legislative and executive powers of the State.
Irrespective of his motives, We have to examine Bhat’s move in  light of the PDP’s oft repeated “self rule” formula  as a solution to Kashmir problem. Self rule presupposes that India & Pakistan retain the territories of J&K under their respective control at present. But is that possible without the J&K  State legislature having the requisite power to change the territorial  definition or nomenclature of  its State. This needs a close examination of Constitutional provisions (both Indian & J&K State constitution) in this regard.
According to Article 1(2) of Indian Constitution , Every state that is included in the First Schedule to the Constitution is, a part of 'the territory of India and that schedule includes the State of J&K. But it is the constitution of J&K which makes it as an integral part of India  by virtue of Section 3 of which reads as: "The State of Jammu and Kashmir is and shall be an integral part of the Union of India."By virtue of section 4, the territory of the State has been defined as  comprising all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State.' Further, Section 147 of the J&K Constitution prohibits any amendment of Section 3 or section 5 while Section 147 is itself debarred from amendment
The next question to be examined is whether our State Govt. or Indian Govt. has power to cede any part of its territory to another Country which is necessary to implement the self rule formula. In this regard there is no express provision in either of the two Constitutions but two Supreme Court judgments (AIR 1955 SC 504 and AIR 1962 SC 797) may be cited which interpreted the phrase 'The territory of India' in Article 1(3) of Indian Constitution to mean the territory which, for the time being, (emphasis added) falls within Article 1(3). Moreover, in its advisory opinion in 1960 on the transfer of Berubari to Pakistan, the apex court held (AIR 1960 SC 845) that Indian territory could be ceded to a foreign country by amending the Constitution under Article 368 to modify the First Schedule. Thus, on the face of it, The J&K Govt. has no power to cede any part of it’s territory to a foreign power while the Union of India may do so in view of the Apex Court Judgments cited above.
So what then is the solution to implement the LoC compromise ingrained in Self-rule formula. First and foremost a change will have to be effected in Section 3, 4 ,5 & 147 of the J&K Constitution, 1957 which will empower the State legislature to  allow Pakistan to legally retain PoK. That is what Mr. Bhat precisely wanted to achieve through his private bill. In other words Bhat wanted to achieve constitutionally what PDP is professing verbally and his admonition by rank & file of PDP is beyond comprehension.
Secondly  the First Schedule to Indian Constitution will also have to be amended. Presently, the definition of Jammu and Kashmir there is 'The territory which immediately before the commencement of the Constitution, i.e 1950 is comprised in the Indian State of Jammu and Kashmir.' In order to accept the LoC as the new international border, that definition will have to be changed appropriately to the logistical compromise made.

(The author is a practicing chartered Accountant. Feedback at amzargar1@indiatimes.com) 
 
 
 
 

Lastupdate on : Mon, 19 Sep 2011 21:30:00 Makkah time
Lastupdate on : Mon, 19 Sep 2011 18:30:00 GMT
Lastupdate on : Tue, 20 Sep 2011 00:00:00 IST