November 28, 2001


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Arvind Lavakare

Reviving the dormant demon

The way seems to have been cleared for Pakistan's jihadi terrorists to enter India... legally! On November 8, a five-judge bench of the Supreme Court proclaimed that it was "respectfully" returning, "unanswered", the presidential reference on the J&K Resettlement Bill, which, in essence, assures citizenship to a select class of people in Pakistan-occupied Kashmir or Pakistan itself "desiring" to "come home" to the Indian territory that now appears to have become the "sultanate" of the Abdullah dynasty.

It is bizarre that the pronouncement should have come on a reference made by the nation's President some 20 years ago. Giani Zail Singh was the one who had sought an advisory opinion from the apex court as to whether the far-reaching Resettlement Bill of a mere state legislature would, if enacted, be valid under the Constitution of India. He made that reference before the bill became an act on October 4, 1982, under peculiar, if not bizarre, circumstances. That act was, however, not enforced pending the verdict on the presidential reference. Now, with the proclamation of the "supreme" silence of collective wisdom, that act has got the consent that is dangerous.

As a matter of fact, everything about this resettlement legislation is bizarre, if not outright dangerous.

Consider its contents. Its central provision is to legitimise the return to J&K of all those persons who had been its privileged class of "state subjects" before May 14, 1954, and had migrated to the territory now included in Pakistan after March 1, 1947. It similarly allows the return of the widows, wives and descendents of such persons.

To understand the significance of that cut-off date of May 14, 1954, remember that those notified as "state subjects" of the earlier J&K monarchy were granted Indian citizenship under the President's Constitution (Application to Jammu and Kashmir) Order of that very date! Hence, what the resettlement law is doing is granting Indian citizenship to all those who, in the above period, opted to be in Pakistan-occupied Kashmir, or Pakistan itself, and had continued to live there for donkey's years. Strange.

It is stranger when you consider that under Article 7 of the Constitution of India only those who migrated to Pakistan between March 1, 1947, and January 26, 1950, are recognised as Indian citizens if they have returned to India under the stipulated permit.

For those persons who migrated to Pakistan after January 26, 1950 (the date on which our Constitution came into force), the question of their getting Indian citizenship has to be decided under the Indian Citizenship Act, 1955. In other words, those persons who, between January 27, 1950, and May 14, 1954, migrated to a territory now included in Pakistan cannot automatically become Indian citizens with just a permit of return in hand -- as is provided for in J&K's resettlement law.

But with respect to that much-pampered state of J&K, nothing can be strange. The President's Constitution Order referred to earlier modified Article 7 exclusively for J&K so that any permanent resident of that state who had, at any time whatsoever, migrated to the territory now included in Pakistan could return with a permit of resettlement and be deemed a citizen of India -- irrespective of, to repeat, whether he had migrated after March 1947 or January 26, 1950. In short, J&K was permitted what was denied to the rest of India. The saving grace of this modified Article 7 is that, unlike in the Resettlement Act, it gives Indian citizenship only to the returning migrant and not to his widow, wife or descendents.

Consider, next, the stated objective of the Resettlement Bill as introduced in March 1980. Its stated purpose was to provide a chance of reunion to the "hard-pressed blood relations who were separated by the crucial circumstances of 1947". Now, now, how come this "compassion" for the kith and kin came 33 full years after the events of 1947? Clearly, it was a case of crocodile tears, and the real motives were probably those suspected by Jagmohan in his famous book My Frozen Turbulence in Kashmir (Allied Publishers Limited).

"The real objective of the Resettlement Act," wrote Jagmohan, "was to present Sheikh Abdullah and the National Conference as champions of Kashmiri unity and Kashmiri identity, lionise the Sheikh further... make a show of autonomy and independence, display a bit of insolence towards the Central Government, undermine the Kashmir Accord (of February 1975 with Indira Gandhi), give some shape to what has been called the 'Greater Kashmir' plan by ensuring effective Muslim majority for the districts of Poonch and Rajouri..." Even more dangerously, Jagmohan believed the Resettlement Act was a move to create an environment that would give birth to the movement for an independent Kashmir.

Prime Minister Indira Gandhi must have seen through this dangerous ploy of Sheikh Abdullah. That is why, so obviously, she prevailed upon President Zail Singh to make a reference to the Supreme Court on the Resettlement Bill's constitutional validity. That is why, so obviously, she got the J&K governor, B K Nehru, to send the bill to India's attorney general for legal opinion when the bill, passed by the legislative assembly, came to him for assent.

That unprecedented act of the governor must also have been prompted by hundreds of representations against the bill received by him and the central government. The governor thereafter observed, in writing, that on the basis of the legal advice he had got, the bill suffered from defects and deficiencies, constitutional and other. He therefore sent it back to the assembly for reconsideration.

The assembly reconsidered the bill; a heated debate ensued there; but on October 4, 1982, it again passed the bill in its original form. The governor's assent to it thereafter was a mandatory formality. In such bizarre circumstances had the demon been delivered, though its conception lay dormant in the Supreme Court from thence till November 8 this year.

Now that the devil has been revived by the court's proclaimed silence after some 20 years of its actual silence, the whole business has been made more bizarre by the total failure of the political community to take even the slightest note of the dangers inherent in the Resettlement Act.

With the apex court on November 8 refusing to give its opinion on the law and therefore letting it become a reality, the current parliamentary session was ideal for all politicians to raise the subject inside and outside the Lok Sabha and the Rajya Sabha.

After all, the Resettlement Act does raise some grave but commonsensical questions -- the very ones that Jagmohan raised in his book. "Where was the justification? Would not the return of the so-called Kashmiri families cause social and economic disruption and also pose a serious threat to the security of the country? Who would guarantee that spies and saboteurs do not move in? How could a Bill, which basically related to the grant of citizenship rights, be enacted by the state legislature? And how could the children of the migrants, born and brought up in Pakistan, be given Indian nationality?"

Instead of asking the above explosive questions than need to be answered, the politicians in Parliament have been obsessed with other issues -- the reinduction of George Fernandes in Vajpayee's ministry, the VHP's puja of Ram Lalla beyond the judicial boundary, changes in history textbooks, human rights content of POTO, etc. Our politicians, pity them, see these issues as being extremely critical to the country's interest. Even Sonia's Congress doesn't seem to remember that Indira Gandhi was dead against Sheikh Abdullah's enactment of a law that further fomented the separatist psyche of the J&K people.

The media too has remained immune to the judicial green signal to the Resettlement Act. They are more concerned with killing the national interest obligation that POTO enjoins on journalists.

Will someone therefore please wake up? And file a PIL challenging the constitutional validity of the ghastly ghost left behind by Sheikh Abdullah?

Yes, yes, there is a chance that the Supreme Court will yet rid the nation of that ghost. That chance can be gleaned in one sentence of the court's order of November 8. It said, "Even if we were to answer the question [on the act's constitutional invalidity] in the affirmative, we would be unable to strike down the act in this proceeding." (emphasis supplied). The apex court, it would seem, is willing to do the right thing by the nation, but in another proceeding. Oh, if only someone can accept that offer!

Arvind Lavakare

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