27 April 2015 from Twitter: “My Pakistani hosts never managed to go thru w their 2010/11 invitation I speak in Lahore on Kashmir. After #SabeenMahmud s murder, I decline”
see too https://independentindian.com/2011/10/13/my-seventy-one-notes-at-facebook-etc-on-kashmir-pakistan-and-of-course-india-listed-thanks-to-jd/
I have also now made clear how and why my Lahore lecture (confirmed by the Pakistani envoy to Delhi personally phoning me of his own accord at home on 3 March 2011, followed the next day by the Indian Foreign Secretary phoning to give me an appointment to brief her about my talk upon my return) came to be sabotaged by two Pakistanis and two Indian politicians associated with them. (Both of the Indian politicians had bad karma catch up immediately afterwards!)
Original Preface 22 November 2011: Exactly a year ago, in late October-November 2010, I received a very kind invitation from the Lahore Oxford and Cambridge Society to speak there on this subject. Mid March 2011 was a tentative date for this lecture from which the text below is dated. The lecture has yet to take place for various reasons but as there is demand for its content, I am releasing the part which was due to be released in any case to my Pakistani hosts ahead of time — after all, it would have been presumptuous of me to seek to speak in Lahore on Pakistan’s viewpoint on Kashmir, hence I instead planned to release my understanding of that point of view ahead of time and open it to the criticism of my hosts. The structure of the remainder of the talk may be surmised too from the Contents. The text and argument are mine entirely, the subject of more than 25 years of research and reflection, and are under consideration of publication as a book by Continuum of London and New York. If you would like to comment, please feel free to do so, if you would like to refer to it in an online publication, please give this link, if you would like to refer to it in a paper-publication, please email me. Like other material at my site, it is open to the Fair Use rule of normal scholarship.
On the Alternative Theories of Pakistan and India about Jammu & Kashmir (And the One and Only Way These May Be Peacefully Reconciled): An Exercise in Economics, Politics, Moral Philosophy & Jurisprudence
by
Subroto (Suby) Roy
Lecture to the Oxford and Cambridge Society of Lahore
March 14, 2011 (tentative)
“What is the use of studying philosophy if all that does for you is to enable you to talk with some plausibility about some abstruse questions of logic, etc., & if it does not improve your thinking about the important questions of everyday life?” Wittgenstein, letter to Malcolm, 1944
“India is the greatest Muslim country in the world.”
Sir Muhammad Iqbal, 1930, Presidential Address to the Muslim League, Allahabad
“Where be these enemies?… See, what a scourge is laid upon your hate,… all are punish’d.” Shakespeare
Dr Roy’s published works include Philosophy of Economics: On the Scope of Reason in Economic Inquiry (London & New York: Routledge, 1989, 1991); Pricing, Planning & Politics: A Study of Economic Distortions in India (London: Institute of Economic Affairs, 1984); and, edited with WE James, Foundations of India’s Political Economy: Towards an Agenda for the 1990s (Hawaii MS 1989, Sage 1992) & Foundations of Pakistan’s Political Economy: Towards an Agenda for the 1990s (Hawaii MS 1989, Sage 1992, OUP Karachi 1993); and, edited with John Clarke, Margaret Thatcher’s Revolution: How it Happened and What it Meant (London & New York: Continuum 2005). He graduated in 1976 with a first from the London School of Economics in mathematical economics, and received the PhD in economics at Cambridge in 1982 under Professor Frank Hahn for the thesis “On liberty & economic growth: preface to a philosophy for India”. In the United States for 16 years he was privileged to count as friends Professors James Buchanan, Milton Friedman, TW Schultz, Max Black and Sidney Alexander. From September 18 1990 he was an adviser to Rajiv Gandhi and contributed to the origins of India’s 1991 economic reform. He blogs at http://www.independentindian.com.
CONTENTS
Part I
Introduction
Pakistan’s Point of View (or Points of View)
(a) 1930 Sir Muhammad Iqbal
(b) 1933-1948 Chaudhury Rahmat Ali
(c) 1937-1941 Sir Sikander Hayat Khan
(d) 1937-1947 Quad-i-Azam Mohammad Ali Jinnah
(e) 1940s et seq Maulana Abul Ala Maudoodi
(f) 1947-1950 Prime Minister Liaquat Ali Khan, 1966 President Ayub Khan, 2005 Govt of Pakistan, 2007 President Musharraf, 2008 FM Qureshi, 2011 Kashmir Day
Part II
India’s Point of View: British Negligence/Indifference during the Transfer of Power, A Case of Misgovernance in the Chaotic Aftermath of World War II
(a) Rhetoric: Whose Pakistan? Which Kashmir?
(b) Law: (i) Liaquat-Zafrullah-Abdullah-Nehru United in Error Over the Second Treaty of Amritsar! Dogra J&K subsists Mar 16 1846-Oct 22 1947. Aggression, Anarchy, Annexations: The LOC as De Facto Boundary by Military Decision Since Jan 1 1949. (ii) Legal Error & Confusion Generated by 12 May 1946 Memorandum. (iii) War: Dogra J&K attacked by Pakistan, defended by India: Invasion, Mutiny, Secession of “Azad Kashmir” & Gilgit, Rape of Baramulla, Siege of Skardu.
Politics: What is to be Done? Towards Truths, Normalisation, Peace in the 21st Century
The Present Situation is Abnormal & Intolerable. There May Be One (and Only One) Peacable Solution that is Feasible: Revealing Individual Choices Privately with Full Information & Security: Indian “Green Cards”/PIO-OCI status for Hurriyat et al: A Choice of Nationality (India, Pakistan, Afghanistan, Iran). Of Flags and Consulates in Srinagar & Gilgit etc: De Jure Recognition of the Boundary, Diplomatic Normalisation, Economic & Military Cooperation.
Appendices:
(a) History of Jammu & Kashmir until the Dogra Native State
(b) Pakistan’s Allies (including A Brief History of Gilgit)
(c) India’s Muslim Voices
(d) Pakistan’s Muslim Voices: An Excerpt from the Munir Report
Part I
1. Introduction
For a solution to Jammu & Kashmir to be universally acceptable it must be seen by all as being lawful and just. Political opinion across the subcontinent — in Pakistan, in India, among all people and parties in J&K, those loyal to India, those loyal to Pakistan, and any others — will have to agree that, all things considered, such is the right course of action for everyone today in the 21st Century, which means too that the solution must be consistent with the principal known facts of history as well as account reasonably for all moral considerations.
I claim to have found such a solution, indeed I shall even say it is the only such solution (in terms of theoretical economics, it is the unique solution) and plan with your permission to describe its main outlines at this distinguished gathering. I have not invented it overnight but it is something developed over a quarter century, milestones along the way being the books emerging from the University of Hawaii “perestroika” projects for India and Pakistan that I and the late WE James led 25 years ago, and a lecture I gave at Washington’s Heritage Foundation in June 1998, as well as sets of newspaper articles published between 2005 and 2008, one in Dawn of Karachi and others in The Statesman of New Delhi and Kolkata.
Before I start, allow me for a moment to remind just how complex and intractable the problem we face has been, and, therefore, quite how large my ambition is in claiming today to be able to resolve it.
“Kashmir is in the Supreme National Interest of Pakistan”, says Pakistan.
“Kashmir is an Integral Part of India”, says India.
“Kashmir is an Integral Part of Pakistan”, says Pakistan.
“Kashmir is in the Supreme National Interest of India”, says India.
And so it goes, in what over the decades has been all too often a Dialogue of the Deaf. How may such squarely opposed positions be reconciled without draining public resources even further through wasteful weaponry and confrontation of standing armies, or, what is worse, using these weapons and armies in war, plunging the subcontinent into an abyss of chaos and destruction for generations to come? How is it possible?
I shall suggest a road can be found only when we realize Pakistan, India and J&K each have been and are going to remain integral to one another — in their histories, their geographies, their economies and their societies. The only place they may need to differ, where we shall want them to differ, is their politics and political systems. We should not underestimate how much mutual hatred and mutual fear has arisen naturally on all sides over the decades as a result of bloodshed and suffering all around, and the fact must also be accounted for that people simply may not be in a calm-enough emotional state to want to be part of processes seeking resolution; at the same time, it bears to be remembered that although Pakistan and India have been at war more than once and war is always a very serious and awful thing, they have never actually declared war against the other nor have they ever broken diplomatic relations – in fact in some ways it has always seemed like some very long and protracted fraternal Civil War between us where we think we know one another so well and yet come to be surprised more by one another’s virtues than by one another’s vices.
Secondly, with any seemingly intractable problem, dialogue can stall or be aborted due to normal human failings of impatience or lack of good will or lack of good humour or lack of a scientific attitude towards finding facts, or plain mutual miscomprehension of one another’s points of view through ignorance or laziness or negligence. In case of Pakistan and India over J&K, there has been the further critical complication that we of this generation did not cause this problem — it has been something inherited by us from not even our fathers but our grandfathers! It is two generations old. Each side must respect the words and deeds of its forebears but also may have to frankly examine in a scientific spirit where errors of fact or judgment may have occurred back then. The antagonistic positions have changed only slightly over two generations, and one reason dialogue stalls or gets aborted today is because positions have become frozen for more than half a century and merely get repeated endlessly. On top of such frozen positions have been piled pile upon pile of further vast mortal complications: the 1965 War, the 1971 secession of East Pakistan, the 1999 Kargil War, the 2008 Mumbai massacres. Only cacophony results if we talk about everything at once, leaving the status quo of a dangerous expensive confrontation to continue.
I propose instead to focus as specifically and precisely as possible on how Jammu & Kashmir became a problem at all during those crucial decades alongside the processes of Indian Independence, World War II, the Pakistan Movement and creation of Pakistan, accompanied by the traumas and bloodshed of Partition.
Having addressed that — and it is only fair to forewarn this eminent Lahore audience that such a survey of words, deeds and events between the 1930s and 1950s tends to emerge in India’s favour — I propose to “fast-forward” to current times, where certain new facts on the ground appear much more adverse to India, and finally seek to ask what can and ought to be done, all things considered, today in the circumstances of the 21st Century. There are four central facts, let me for now call them Fact A, Fact B, Fact C and Fact D, which have to be accepted by both countries in good faith and a scientific spirit. Facts A and B are historical in nature; Pakistan has refused to accept them. Facts C and D are contemporary in nature; official political India and much of the Indian media too often have appeared wilfully blind to them. The moment all four facts come to be accepted by all, the way forward becomes clear. We have inherited this grave mortal problem which has so badly affected the ordinary people of J&K in the most terrible and unacceptable manner, but if we fail to understand and resolve it, our children and grandchildren will surely fail even worse — we may even leave them to cope with the waste and destruction of further needless war or confrontation, indeed with the end of the subcontinent as we have received and known it in our time.
2. Pakistan’s Point of View (Or Points of View)
1930 Sir Muhammad Iqbal
This audience will need no explanation why I start with Sir Muhammad Iqbal (1877-1938), the poetic and spiritual genius who in the 20th Century inspired the notion of a Muslim polity in NorthWestern India, whose seminal 1930 presidential speech to the Muslim League in Allahabad lay the foundation stone of the new country that was yet to be. He did not live to see Pakistan’s creation yet what may be called the “Pakistan Principle” was captured in his words:
“I would like to see the Punjab, Northwest Frontier Province, Sind and Baluchistan amalgamated into a single state. Self-government within the British Empire or without the British Empire, the formation of a consolidated North West Indian Muslim state appears to me to be the final destiny of the Muslims at least of Northwest India… India is the greatest Muslim country in the world. The life of Islam as a cultural force in this living country very largely depends on its centralization in a specified territory”.
He did not see such a consolidated Muslim state being theocratic and certainly not one filled with bigotry or “Hate-Hindu” campaigns:
“A community which is inspired by feelings of ill-will towards other communities is low and ignoble. I entertain the highest respect for the customs, laws, religious and social institutions of other communities… Yet I love the communal group which is the source of my life and my behaviour… Nor should the Hindus fear that the creation of autonomous Muslim states will mean the introduction of a kind of religious rule in such states…. I therefore demand the formation of a consolidated Muslim state in the best interests of India and Islam. For India it means security and peace resulting from an internal balance of power, for Islam an opportunity to rid itself of the stamp that Arabian Imperialism was forced to give it, to mobilise its law, its education, its culture, and to bring them into closer contact with its own original spirit and the spirit of modern times.”[1]
Though Kashmiri himself, in fact a founding member of the “All-India Jammu & Kashmir Muslim Conference of Lahore and Simla”, and a hero and role model for the young Sheikh Abdullah (1905-1982), Allama Iqbal was explicitly silent about J&K being part of the new political entity he had come to imagine. I do not say he would not have wished it to be had he lived longer; what I am saying is that his original vision of the consolidated Muslim state which constitutes Pakistan today (after a Partitioned Punjab) did not include Jammu & Kashmir. Rather, it was focused on the politics of British India and did not mention the politics of Kashmir or any other of the so-called “Princely States” or “Native States” of “Indian India” who constituted some 1/3rd of the land mass and 1/4th of the population of the subcontinent. Twenty years ago I called this “The Paradox of Kashmir”, namely, that prior to 1947 J&K hardly seemed to appear in any discussion at all for a century, yet it has consumed almost all discussion and resources ever since.
Secondly, this audience will see better than I can the significance of Dr Iqbal’s saying the Muslim political state of his conception needed
“an opportunity to rid itself of the stamp that Arabian Imperialism was forced to give it”
and instead seek to
“mobilise its law, its education, its culture, and to bring them into closer contact with its own original spirit and the spirit of modern times”.
Dr Iqbal’s Pakistan Principle appears here the polar opposite of Pakistan’s 18th & 19th Century pre-history represented by Shah Waliullah (1703-1762)[2] saying
“We are an Arab people whose fathers have fallen in exile in the country of Hindustan, and Arabic genealogy and Arabic language are our pride”
or Sayyid Ahmed Barelwi (1786-1831) saying
“We must repudiate all those Indian, Persian and Roman customs which are contrary to the Prophet’s teaching”.[3]
Some 25 years after the Allahabad address, the Munir Report in 1954 echoed Dr Iqbal’s thought when it observed about medieval military conquests
“It is this brilliant achievement of the Arabian nomads …that makes the Musalman of today live in the past and yearn for the return of the glory that was Islam… Little does he understand that the forces which are pitted against him are entirely different from those against which early Islam had to fight… Nothing but a bold reorientation of Islam to separate the vital from the lifeless can preserve it as a World Idea and convert the Musalman into a citizen of the present and the future world from the archaic incongruity that he is today…” [4]
1933-1947 Chaudhury Rahmat Ali
Dr Iqbal’s young follower, the radical Cambridge pamphleteer Chaudhury Rahmat Ali (1895-1951) drew a picture not of Muslim tolerance and coexistence with Hindus in a peaceful India but of aggression towards Hindus and domination by Muslims over the subcontinent and Asia itself. Rahmat Ali had been inspired by Dr Iqbal’s call for a Muslim state in Northwest India but found it vague and was disappointed Iqbal had not pressed it at the Third Round Table Conference. In 1933, reportedly on the upper floor of a London omnibus, he invented for the then-imagined political entity the name “PAKSTAN”, P for his native Punjab, A for Afghania, K for Kashmir, S for Sind, and STAN for Balochistan. He sought a meeting with Mr Jinnah in London — “Jinnah disliked Rahmat Ali’s ideas and avoided meeting him”[5] but did meet him. There is a thesis yet to be written on how Europe’s inter-War ideologies affected political thinking on the subcontinent. Rahmat Ali’s vituperative views about Hindus were akin to others about Jews (and Muslims too) at the time, all models or counterfoils for one another in the fringes of Nazism. He referred to the Indian nationalist movement as a “British-Banya alliance”, declined to admit India had ever existed and personally renamed the subcontinent “Dinia” and the seas around it the “Pakian Sea”, the “Osmanian Sea” etc. He urged Sikhs to rise up in a “Sikhistan” and urged all non-Hindus to rise up in war against Hindus. Given the obscurity of his life before his arrival at Cambridge’s Emmanuel College, what experiences may have led him to such views are not known.
All this was anathema to Mr Jinnah, the secular constitutionalist embarrassed by a reactionary Muslim imperialism in that rapidly modernising era that was the middle of the 20th Century. When Rahmat Ali pressed the ‘Pakstan’ acronym, Mr Jinnah said Bengal was not in it and Muslim minority regions were absent. At this Chaudhury-Sahib produced a general scheme of Muslim domination all over the subcontinent: there would be “Pakstan” in the northwest including Kashmir, Delhi and Agra; “Bangistan” in Bengal; “Osmanistan” in Hyderabad; “Siddiquistan” in Bundelhand and Malwa; “Faruqistan” in Bihar and Orissa; “Haideristan” in UP; “Muinistan” in Rajasthan; “Maplistan” in Kerala; even “Safiistan” in “Western Ceylon” and “Nasaristan” in “Eastern Ceylon”, etc. In 1934 he published and widely circulated such a diagram among Muslims in Britain at the time. He was not invited to the Lahore Resolution which did not refer to Pakistan though came to be called the Pakistan Resolution. When he landed in the new Pakistan, he was apparently arrested and deported back and was never granted a Pakistan passport. From England, he turned his wrath upon the new government, condemning Mr Jinnah as treacherous and newly re-interpreting his acronym to refer to Punjab, Afghania, Kashmir, Iran, Sindh, Tukharistan (sic), Afghanistan, and Balochistan. The word “pak” coincidentally meant pure, so he began to speak of Muslims as “the Pak” i.e. “the pure” people, and of how the national destiny of the new Pakistan was to liberate “Pak” people everywhere, including the new India, and create a “Pak Commonwealth of Nations” stretching from Arabia to the Indies. The map he now drew placed the word “Punjab” over J&K, and saw an Asia dominated by this “Pak” empire. Shunned by officialdom of the new Pakistan, Chaudhury-Sahib was a tragic figure who died in poverty and obscurity during an influenza epidemic in 1951; the Master of Emmanuel College paid for his funeral and was apparently later reimbursed for this by the Government of Pakistan. In recent years he has undergone a restoration, and his grave at Cambridge has become a site of pilgrimage for ideologues, while his diagrams and writings have been reprinted in Pakistan’s newspapers as recently as February 2005.
1937-1941 Sir Sikander Hayat Khan
Chaudhary Rahmat Ali’s harshest critic at the time was the eminent statesman and Premier of Punjab Sir Sikander Hayat Khan (1892-1942), partner of the 1937 Sikander-Jinnah Pact, and an author of the Lahore Resolution. His statement of 11 March 1941 in the Punjab Legislative Assembly Debates is a classic:
“No Pakistan scheme was passed at Lahore… As for Pakistan schemes, Maulana Jamal-ud-Din’s is the earliest…Then there is the scheme which is attributed to the late Allama Iqbal of revered memory. He, however, never formulated any definite scheme but his writings and poems have given some people ground to think that Allama Iqbal desired the establishment of some sort of Pakistan. But it is not difficult to explode this theory and to prove conclusively that his conception of Islamic solidarity and universal brotherhood is not in conflict with Indian patriotism and is in fact quite different from the ideology now sought to be attributed to him by some enthusiasts… Then there is Chaudhuri Rahmat Ali’s scheme (*laughter*)…it was widely circulated in this country and… it was also given wide publicity at the time in a section of the British press. But there is another scheme…it was published in one of the British journals, I think Round Table, and was conceived by an Englishman…..the word Pakistan was not used at the League meeting and this term was not applied to (the League’s Lahore) resolution by anybody until the Hindu press had a brain-wave and dubbed it Pakistan…. The ignorant masses have now adopted the slogan provided by the short-sighted bigotry of the Hindu and Sikh press…they overlooked the fact that the word Pakistan might have an appeal – a strong appeal – for the Muslim masses. It is a catching phrase and it has caught popular imagination and has thus made confusion worse confounded…. So far as we in the Punjab are concerned, let me assure you that we will not countenance or accept any proposal that does not secure freedom for all (*cheers*). We do not desire that Muslims should domineer here, just as we do not want the Hindus to domineer where Muslims are in a minority. Now would we allow anybody or section to thwart us because Muslims happen to be in a majority in this province. We do not ask for freedom that there may be a Muslim Raj here and Hindu Raj elsewhere. If that is what Pakistan means I will have nothing to do with it. If Pakistan means unalloyed Muslim Raj in the Punjab then I will have nothing to do with it (*hear, hear*)…. If you want real freedom for the Punjab, that is to say a Punjab in which every community will have its due share in the economic and administrative fields as partners in a common concern, then that Punjab will not be Pakistan but just Punjab, land of the five rivers; Punjab is Punjab and will always remain Punjab whatever anybody may say (*cheers*). This, then, briefly is the future which I visualize for my province and for my country under any new constitution.
Intervention (Malik Barkat Ali): The Lahore resolution says the same thing.
Premier: Exactly; then why misinterpret it and try to mislead the masses?…”
1937-1947 Quad-i-Azam Mohammad Ali Jinnah
During the Third Round Table Conference, Dr Iqbal persuaded Mr Jinnah (1876-1948) to return to India; Mr Jinnah, from being settled again in his London law practice, did so in 1934. But following the 1935 Govt of India Act, the Muslim League failed badly when British India held its first elections in 1937 not only in Bengal and UP but in Punjab (one seat), NWFP and Sind.
World War II, like World War I a couple of brief decades earlier, then changed the political landscape completely. Germany invaded Poland on 1 September 1939 and Britain and France declared war on Germany on 3 September. The next day, India’s British Viceroy (Linlithgow) granted Mr Jinnah the political parity with Congress that he had sought.[6] Professor Francis Robinson suggests that until 4 September 1939 the British
“had had little time for Jinnah and his League. The Government’s declaration of war on Germany on 3 September, however, transformed the situation. A large part of the army was Muslim, much of the war effort was likely to rest on the two Muslim majority provinces of Punjab and Bengal. The following day, the Viceroy invited Jinnah for talks on an equal footing with Gandhi…. As the Congress began to demand immediate independence, the Viceroy took to reassuring Jinnah that Muslim interests would be safeguarded in any constitutional change. Within a few months, he was urging the League to declare a constructive policy for the future, which was of course presented in the Lahore Resolution[7]…. In their August 1940 offer, the British confirmed for the benefit of Muslims that power would not be transferred against the will of any significant element in Indian life. And much the same confirmation was given in the Cripps offer nearly two years later…. Throughout the years 1940 to 1945, the British made no attempt to tease out the contradictions between the League’s two-nation theory, which asserted that Hindus and Muslims came from two different civilisations and therefore were two different nations, and the Lahore Resolution, which demanded that ‘Independent States’ should be constituted from the Muslim majority provinces of the NE and NW, thereby suggesting that Indian Muslims formed not just one nation but two. When in 1944 the governors of Punjab and Bengal urged such a move on the Viceroy, Wavell ignored them, pressing ahead instead with his own plan for an all-India conference at Simla. The result was to confirm, as never before in the eyes of leading Muslims in the majority provinces, the standing of Jinnah and the League. Thus, because the British found it convenient to take the League seriously, everyone had to as well—Congressmen, Unionists, Bengalis, and so on…”[8]
Mr Jinnah was himself amazed by the new British attitude towards him:
“(S)uddenly there was a change in the attitude towards me. I was treated on the same basis as Mr Gandhi. I was wonderstruck why all of a sudden I was promoted and given a place side by side with Mr Gandhi.”
Britain, threatened for its survival, faced an obdurate Indian leadership and even British socialists sympathetic to Indian aspirations grew cold (Gandhi dismissing the 1942 Cripps offer as a “post-dated cheque on a failing bank”). Official Britain’s loyalties had been consistently with those who had been loyal to them, and it was unsurprising there would be a tilt to empower Mr Jinnah soon making credible the real possibility of Pakistan.[9] By 1946, Britain was exhausted, pre-occupied with rationing, Berlin, refugee resettlement and countless other post-War problems — Britain had not been beaten in war but British imperialism was finished because of the War. Muslim opinion in British India had changed decisively in the League’s favour. But the subcontinent’s political processes were drastically spinning out of everyone’s control towards anarchy and blood-letting. Implementing a lofty vision of a cultured progressive consolidated Muslim state in India’s NorthWest descended into “Direct Action” with urban mobs shouting Larke lenge Pakistan; Marke lenge Pakistan; Khun se lenge Pakistan; Dena hoga Pakistan.[10]
We shall return to Mr Jinnah’s view on the legal position of the “Native Princes” of “Indian India” during this critical time, specifically J&K; here it is essential before proceeding only to record his own vision for the new Pakistan as recorded by the profoundly judicious report of Justice Munir and Justice Kayani a mere half dozen years later:
“Before the Partition, the first public picture of Pakistan that the Quaid-i-Azam gave to the world was in the course of an interview in New Delhi with Mr. Doon Campbell, Reuter’s Correspondent. The Quaid-i-Azam said that the new State would be a modern democratic State, with sovereignty resting in the people and the members of the new nation having equal rights of citizenship regardless of their religion, caste or creed. When Pakistan formally appeared on the map, the Quaid-i-Azam in his memorable speech of 11th August 1947 to the Constituent Assembly of Pakistan, while stating the principle on which the new State was to be founded, said:—‘All the same, in this division it was impossible to avoid the question of minorities being in one Dominion or the other. Now that was unavoidable. There is no other solution. Now what shall we do? Now, if we want to make this great State of Pakistan happy and prosperous we should wholly and solely concentrate on the well-being of the people, and specially of the masses and the poor. If you will work in co-operation, forgetting the past, burying the hatchet, you are bound to succeed. If you change your past and work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this State with equal rights, privileges and obligations., there will be no end to the progress you will make. “I cannot emphasise it too much. We should begin to work in that spirit and in course of time all these angularities of the majority and minority communities—the Hindu community and the Muslim community— because even as regards Muslims you have Pathana, Punjabis, Shias, Sunnis and so on and among the Hindus you have Brahmins, Vashnavas, Khatris, also Bengalis, Madrasis and so on—will vanish. Indeed if you ask me this has been the biggest hindrance in the way of India to attain its freedom and independence and but for this we would have been free peoples long long ago. No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time but for this (Applause). Therefore, we must learn a lesson from this. You are free; you are free to go to your temples, you are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any religion or caste or creed— that has nothing to do with the business of the State (Hear, hear). As you know, history shows that in England conditions sometime ago were much worse than those prevailing in India today. The Roman Catholics and the Protestants persecuted each other. Even now there are some States in existence where there are discriminations made and bars imposed against a particular class. Thank God we are not starting in those days. We are starting in the days when there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State (Loud applause). The people of England in course of time had to face the realities of the situation and had to discharge the responsibilities and burdens placed upon them by the Government of their country and they went through that fire step by step. Today you might say with justice that Roman Catholics and Protestants do not exist: what exists now is that every man is a citizen, an equal citizen, of Great Britain and they are all members of the nation. “Now, I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State’. The Quaid-i-Azam was the founder of Pakistan and the occasion on which he thus spoke was the first landmark in the history of Pakistan. The speech was intended both for his own people including non-Muslims and the world, and its object was to define as clearly as possible the ideal to the attainment of which the new State was to devote all its energies. There are repeated references in this speech to the bitterness of the past and an appeal to forget and change the past and to bury the hatchet. The future subject of the State is to be a citizen with equal rights, privileges and obligations, irrespective of colour, caste, creed or community. The word ‘nation’ is used more than once and religion is stated to have nothing to do with the business of the State and to be merely a matter of personal faith for the individual.”
1940s et seq Maulana Abul Ala Maudoodi, Amir Jama’at-i-Islami
The eminent theologian Maulana Abul Ala Maudoodi (1903-1979), founder of the Jama’at-i-Islami, had been opposed to the Pakistan Principle but once Pakistan was created he became the most eminent votary of an Islamic State, declaring:
“That the sovereignty in Pakistan belongs to God Almighty alone and that the Government of Pakistan shall administer the country as His agent”.
In such a view, Islam becomes
“the very antithesis of secular Western democracy. The philosophical foundation of Western democracy is the sovereignty of the people. Lawmaking is their prerogative and legislation must correspond to the mood and temper of their opinion… Islam… altogether repudiates the philosophy of popular sovereignty and rears its polity on the foundations of the sovereignty of God and the viceregency (Khilafat) of man.”
Maulana Maudoodi was asked by Justice Munir and Justice Kayani:
“Q.—Is a country on the border of dar-ul-Islam always qua an Islamic State in the position of dar-ul-harb ?
A.—No. In the absence of an agreement to the contrary, the Islamic State will be potentially at war with the non-Muslim neighbouring country. The non-Muslim country acquires the status of dar-ul-harb only after the Islamic State declares a formal war against it”.
“Q.—Is there a law of war in Islam?
A.—Yes.
Q.—Does it differ fundamentally from the modern International Law of war?
A.—These two systems are based on a fundamental difference.
Q.—What rights have non-Muslims who are taken prisoners of war in a jihad?
A.—The Islamic law on the point is that if the country of which these prisoners are nationals pays ransom, they will be released. An exchange of prisoners is also permitted. If neither of these alternatives is possible, the prisoners will be converted into slaves for ever. If any such person makes an offer to pay his ransom out of his own earnings, he will be permitted to collect the money necessary for the fidya (ransom).
Q.—Are you of the view that unless a Government assumes the form of an Islamic Government, any war declared by it is not a jihad?
A.—No. A war may be declared to be a jihad if it is declared by a national Government of Muslims in the legitimate interests of the State. I never expressed the opinion attributed to me in Ex. D. E. 12:— (translation)‘The question remains whether, even if the Government of Pakistan, in its present form and structure, terminates her treaties with the Indian Union and declares war against her, this war would fall under the definition of jihad? The opinion expressed by him in this behalf is quite correct. Until such time as the Government becomes Islamic by adopting the Islamic form of Government, to call any of its wars a jihad would be tantamount to describing the enlistment and fighting of a non-Muslim on the side of the Azad Kashmir forces jihad and his death martyrdom. What the Maulana means is that, in the presence of treaties, it is against Shari’at, if the Government or its people participate in such a war. If the Government terminates the treaties and declares war, even then the war started by Government would not be termed jihad unless the Government becomes Islamic’.
….
“Q.—If we have this form of Islamic Government in Pakistan, will you permit Hindus to base their Constitution on the basis of their own religion?
A—Certainly. I should have no objection even if the Muslims of India are treated in that form of Government as shudras and malishes and Manu’s laws are applied to them, depriving them of all share in the Government and the rights of a citizen. In fact such a state of affairs already exists in India.”
.…
“Q.—What will be the duty of the Muslims in India in case of war between India and Pakistan?
A.—Their duty is obvious, and that is not to fight against Pakistan or to do anything injurious to the safety of Pakistan.”
1947-1950 PM Liaquat Ali Khan, 1966 Gen Ayub Khan, 2005 Govt of Pakistan et seq
In contrast to Maulana Maudoodi saying Islam was “the very antithesis of secular Western democracy”, Prime Minister Liaquat Ali Khan (1895-1951)[11] during his first official visit in 1950 to North America was to say the new Pakistan, because it was Muslim, held Asia’s greatest democratic potential:
“At present there is no democracy in Asia which is more free and more unified than Pakistan; none so free from moral doubts and from strains between the various sections of the people.”
He told his audiences Pakistan was created because Hindus were people wedded to caste-differences where Pakistanis as Muslims had an egalitarian and democratic disposition:
“The Hindus, for example, believe in the caste system according to which some human beings are born superior to others and cannot have any social relations with those in the lower castes or with those who are not Hindus. They cannot marry them or eat with them or even touch them without being polluted. The Muslims abhor the caste system, as they are a democratic people and believe in the equality of men and equal opportunities for all, do not consider a priesthood necessary, and have economic laws and institutions which recognize the right of private ownership and yet are designed to promote the distribution of wealth and to put healthy checks on vast unearned accumulations… so the Hindus and the Muslims decided to part and divide British India into two independent sovereign states… Our demand for a country of our own had, as you see, a strong democratic urge behind it. The emergence of Pakistan itself was therefore the triumph of a democratic idea. It enabled at one stroke a democratic nation of eighty million people to find a place of its own in Asia, where now they can worship God in freedom and pursue their own way of life uninhibited by the domination or the influence of ways and beliefs that are alien or antagonistic to their genius.” [12]
President Ayub Khan would state in similar vein on 18 November 1966 at London’s Royal Institute of International Affairs:
“the root of the problem was the conflicting ideologies of India and Pakistan. Muslim Pakistan believed in common brotherhood and giving people equal opportunity. India and Hinduism are based on inequality and on colour and race. Their basic concept is the caste system… Hindus and Muslims could never live under one Government, although they might live side by side.”
Regarding J&K, Liaquat Ali Khan on November 4 1947 broadcast from here in Lahore that the 1846 Treaty of Amritsar was “infamous” in having caused an “immoral and illegal” ownership of Jammu & Kashmir. He, along with Mr Jinnah, had called Sheikh Abdullah a “goonda” and “hoodlum” and “Quisling” of India, and on February 4 1948 Pakistan formally challenged the sovereignty of the Dogra dynasty in the world system of nations. In 1950 during his North American visit though, the Prime Minister allowed that J&K was a “princely state” but said
“culturally, economically, geographically and strategically, Kashmir – 80 per cent of whose peoples like the majority of the people in Pakistan are Muslims – is in fact an integral part of Pakistan”;
“(the) bulk of the population (are) under Indian military occupation”.
Pakistan’s official self-image, portrayal of India, and position on J&K may have not changed greatly since her founding Prime Minister’s statements. For example, in June 2005 the website of the Government of Pakistan’s Permanent Mission at the UN stated:
“Q: How did Hindu Raja (sic) become the ruler of Muslim majority Kashmir?
A: Historically speaking Kashmir had been ruled by the Muslims from the 14th Century onwards. The Muslim rule continued till early 19th Century when the ruler of Punjab conquered Kashmir and gave Jammu to a Dogra Gulab Singh who purchased Kashmir from the British in 1846 for a sum of 7.5 million rupees.”
“India’s forcible occupation of the State of Jammu and Kashmir in 1947 is the main cause of the dispute. India claims to have ‘signed’ a controversial document, the Instrument of Accession, on 26 October 1947 with the Maharaja of Kashmir, in which the Maharaja obtained India’s military help against popular insurgency. The people of Kashmir and Pakistan do not accept the Indian claim. There are doubts about the very existence of the Instrument of Accession. The United Nations also does not consider Indian claim as legally valid: it recognises Kashmir as a disputed territory. Except India, the entire world community recognises Kashmir as a disputed territory. The fact is that all the principles on the basis of which the Indian subcontinent was partitioned by the British in 1947 justify Kashmir becoming a part of Pakistan: the State had majority Muslim population, and it not only enjoyed geographical proximity with Pakistan but also had essential economic linkages with the territories constituting Pakistan.”
India, a country dominated by the hated-Hindus, has forcibly denied Srinagar Valley’s Muslim majority over the years the freedom to become part of Muslim Pakistan – I stand here to be corrected but, in a nutshell, such has been and remains Pakistan’s official view and projection of the Kashmir problem over more than sixty years.[13]
Part II
India’s Point of View: British Negligence/Indifference during the Transfer of Power, A Case of Misgovernance in the Chaotic Aftermath of World War II
(a) Rhetoric: Whose Pakistan? Which Kashmir?
(b) Law: (i) Liaquat-Zafrullah-Abdullah-Nehru United in Error Over the Second Treaty of Amritsar! Dogra J&K subsists Mar 16 1846-Oct 22 1947. Aggression, Anarchy, Annexations: The LOC as De Facto Boundary by Military Decision Since Jan 1 1949. (ii) Legal Error & Confusion Generated by 12 May 1946 Memorandum. (iii) War: Dogra J&K attacked by Pakistan, defended by India: Invasion, Mutiny, Secession of “Azad Kashmir” & Gilgit, Rape of Baramulla, Siege of Skardu.
Politics: What is to be Done? Towards Truths, Normalisation, Peace in the 21st Century
The Present Situation is Abnormal & Intolerable. There May Be One (and Only One) Peacable Solution that is Feasible: Revealing Individual Choices Privately with Full Information & Security: Indian “Green Cards”/PIO-OCI status for Hurriyat et al: A Choice of Nationality (India, Pakistan, Afghanistan, Iran). Of Flags and Consulates in Srinagar & Gilgit etc: De Jure Recognition of the Boundary, Diplomatic Normalisation, Economic & Military Cooperation.
Appendices:
(a) History of Jammu & Kashmir until the Dogra Native State
(b) Pakistan’s Allies (including A Brief History of Gilgit)
(c) India’s Muslim Voices
(d) Pakistan’s Muslim Voices: An Excerpt from the Munir Report
[1] EIJ Rosenthal, Islam in the Modern National State, 1965, pp.196-197.
[2] A contemporary of Mohammad Ibn Abdal Wahhab of Nejd.
[3] Francis Robinson in WE James & Subroto Roy, Foundations of Pakistan’s Political Economy: Towards an Agenda for the 1990s, 1993, p. 36. Indeed Barelwi had created a proto-Pakistan in NorthWest India one hundred years before the Pakistan Movement. “In the later 1820s the movement became militant, regarding jihad as one of the basic tenets of faith. Possibly encouraged by the British, with whom the movement did not feel powerful enough to come to grips at the outset, it chose as the venue of jihad the NW frontier of the subcontinent, where it was directed against the Sikhs. Barelwi temporarily succeeded in carving out a small theocratic principality which collapsed owing to the friction between his Pathan and North Indian followers; and he was finally defeated and slain by the Sikhs in 1831″ (Aziz Ahmed, in AL Basham (ed) A Cultural History of India 1976, p. 384). Professor Robinson answered a query of mine in an email of 8 August 2005: “the fullest description of this is in Mohiuddin Ahmad, Saiyid Ahmad Shahid (Lucknow, 1975), although practically everyone who deals with the period covers it in some way. Barelwi was the Amir al-Muminin of a jihadi community which based itself north of Peshawar and for a time controlled Peshawar. He called his fellowship the Tariqa-yi Muhammadiya. Barelwi corresponded with local rulers about him. After his death at the battle of Balakot, it survived in the region, at Sittana I think, down to World War One.”
[6] Events remote from India’s history and geography, namely, the rise of Hitler and the Second World War, had contributed between 1937 and 1947 to the change of fortunes of the Muslim League and hence of all the people of the subcontinent. The British had long discovered that mutual antipathy between Muslims and Hindus could be utilised in fashioning their rule; specifically that organisation and mobilisation of Muslim communal opinion was a useful counterweight to any pan-Indian nationalism emerging to compete with British authority. As early as 1874, long before Allan Octavian Hume ICS conceived the Indian National Congress, John Strachey ICS observed “The existence side by side of these (Hindu and Muslim) hostile creeds is one of the strong points in our political position in India. The better classes of Mohammedans are a source of strength to us and not of weakness. They constitute a comparatively small but an energetic minority of the population whose political interests are identical with ours.” By 1906, when a deputation of Muslims headed by the Aga Khan first approached the British pleading for communal representation, Minto the Viceroy replied: “I am as firmly convinced as I believe you to be that any electoral representation in India would be doomed to mischievous failure which aimed at granting a personal enfranchisement, regardless of the beliefs and traditions of the communities composing the population of this Continent.” Minto’s wife wrote in her diary the effect was “nothing less than the pulling back of sixty two millions of (Muslims) from joining the ranks of the seditious opposition.” (The true significance of Maulana Azad may have been that he, precisely at the same time, did indeed feel within himself the nationalist’s desire for freedom strongly enough to want to join the ranks of that seditious opposition.)
[7] “That geographically contiguous units are demarcated into regions which should be so constituted, with such territorial readjustments as may be necessary, that the areas in which the Muslims are numerically in a majority, as in the North-Western and Eastern zones of India should be grouped to constitute Independent States in which the constituent units shall be autonomous and sovereign”.
[9] In the “Indian India” of the Native Princes, Hari Singh and others who sent troops to fight as part of British armies (and who were nominal members of Churchill’s War Cabinet) would have their vanities flattered, while Sheikh Abdullah’s rebellion against Dogra rule would be ignored. See seq. And in British India, Mr Jinnah the conservative Anglophile and his elitist Muslim League would be backed, while the radicalised masses of the Gandhi-Bose-Nehru Congress suppressed as a nuisance.
[10] An anthology about Lahore reports memories of a murderous mob arriving at a wealthy man’s home to be placated with words like “They are Parsis not Hindus, no need to kill them…”
[11] An exact contemporary of Chaudhury Rahmat Ali.
[13] It is not far from this to a certain body of sentiments frequently found, for example, as recently as February 5 2011: “To observe the Kashmir Solidarity Day, various programs, rallies and protests will be held on Saturday (today) across the city to support the people of Kashmir in their struggle against the Indian occupation of their land. Various religious, political, social and other organizations have arranged different programs to highlight the atrocities of Indian occupant army in held Jammu and Kashmir where about 800,000 Indian soldiers have been committing atrocities against innocent civilians; killing, wounding and maiming tens of thousands of people; raping thousands of women and setting houses, shops and crops on fire to break the Kashmiris’ will to fight for their freedom…Jamat-ud-Dawah…leaders warned that a ‘jihad’ would be launched if Kashmir was not liberated through civil agitation…the JuD leaders said first the former President, Pervez Musharraf, and now the current dispensation were extending the olive branch to New Delhi despite the atrocities on the Kashmiri people….the Pakistani nation would (never compromise on the issue of Kashmir and) would continue to provide political, moral and diplomatic support to the Kashmiri people.”
Yesterday the PM is reported to have been asked by someone travelling on his aeroplane from Moscow “whether he had forgiven Advani for calling him a ‘weak Prime Minister’”.
The question was absurd, almost ridiculous, typical of our docile ingratiating rather juvenile English-language press and media, as if any issue of forgiveness arises at all about what one politician says during an election campaign about another politician’s performance in office.
Dr Manmohan Singh’s answer was surprising too: “I was compelled to reply to what Advani said…On May 16 when (Advani) telephoned me, he told me that he was hurt by some of my statements. He said he was hurt and regretted his statements… I apologised to him if I have hurt him. I am looking forward to a close relationship with the Leader of the Opposition.”
So LK Advani appears to have apologised to Manmohan Singh and Manmohan Singh to LK Advani for what they said about each other during the recent general election campaign! What is going on? Were they schoolboys exchanging fisticuffs in a school playground or elderly men battling over power and policy in modern Indian politics?
What would we have done if there was a Churchill in Indian politics today – hurling sarcastic insults at domestic opponents and foreign leaders while guiding a nation on its right course during turbulent times?
Churchill once famously said his parents had not shown him “The Boneless Wonder” in PT Barnum’s circus because it was too horrible a sight but now he had finally seen such a “Boneless Wonder” in his opponent on the Treasury Benches, namely, Ramsay MacDonald. Of the same opponent he said later “He has the gift of compressing the largest number of words into the smallest amount of thought”.
When accused of being drunk by a woman MP he replied “And you are very ugly, but tomorrow I’ll be sober”. Today’s politically correct world would scream at far less. Field Marshall Montgomery told Churchill, “I neither drink nor smoke and am 100% fit,” to which Churchill replied, “I drink and smoke and I am 200% fit”. That too would be politically incorrect today.
Churchill described Prime Minister Clement Attlee as “a modest man with much to be modest about”; also about Attlee: “If any grub is fed on Royal Jelly it turns into a Queen Bee”. Yet Attlee had enough dignity and self-knowledge and self-confidence to brush it all off and instead respect and praise him. In the 1954 volume Winston Spencer Churchill Servant of Crown and Commonwealth Attlee added his own tribute to his great opponent: “I recall…the period when he was at odds with his own party and took a seat on the Bench below the Gangway on the Government side. Here he was well placed to fire on both parties. I remember describing him as a heavily armed tank cruising in No Man’s Land. Very impressive were the speeches he delivered as the international horizon grew darker. He became very unpopular with the predominant group in his own party, but he never minded fighting a lone battle.”
Stanley Baldwin, who as PM first appointed Churchill as Chancellor of the Exchequer, once said “There comes Winston with his hundred horsepower mind”. Yet Churchill was to later say harshly “I wish Stanley Baldwin no ill, but it would have been much better had he never lived.”
Of Lenin, Churchill said, he was “transported in a sealed truck like a plague bacillus from Switzerland into Russia”. Of Molotov: “I have never seen a human being who more perfectly represented the modern concept of a robot.” Of Hitler, “If [he] invaded hell I would at least make a favourable reference to the devil in the House of Commons”. Of De Gaulle, “He was a man without a country yet he acted as if he was head of state”.” Of John Foster Dulles, “[He] is the only bull who carries his china shop with him”. Of Stafford Cripps, British Ambassador to the USSR, “…a lunatic in a country of lunatics”; and also “There but for the Grace of God, goes God”.
Politics is, and should be, grown up stuff because it deals with human lives and national destinies, and really, if you can’t take the heat please do not enter the kitchen. The slight Churchillian sarcasm that does arise within modern Indian politics comes very occasionally from Bihar but nowhere else, e.g. about the inevitability of aloo in samosas and of bhaloos in the jungle but no longer of Laloo being in the seat of power. In general, everyone seems frightfully sombre and self-important though may be in fact short of self-knowledge and hence self-confidence.
What had Manmohan Singh said about LK Advani that he felt he had to apologise for? That Advani had no substantial political achievement to his credit and did not deserve to be India’s PM. Manmohan was not alone in making the charge – Sonia Gandhi, Rahul Gandhi and numerous other spokesmen and representatives of their party said the same. Has Manmohan’s apology to Advani been one on behalf of the whole Congress Party itself?
Was Advani’s apology to Manmohan one on behalf of the whole BJP too?
What had the BJP charged Manmohan with that Advani felt he had to apologise for? Being a “weak PM”.
Hmmm. Frankly, thinking about it, it is hard to count who has not been weak as a PM in India’s modern history.
Certainly Vallabhai Patel as a kind of co-PM was decisive and far from weak back in 1947-48.
Lal Bahadur Shastri was not weak when he told Pakistan that a Pakistani attack on Kashmir would result in an Indian attack on Pakistan.
Indira Gandhi was not weak when she resisted the Yahya Khan-Tikka Khan tyranny against Bangladesh.
Had he not been assassinated, Rajiv Gandhi in a second term would have been decisive and not weak in facing up to and tackling the powerful lobbies and special interest groups that have crippled our domestic economic policy for decades.
But the number of such examples may be counted by hand. Perhaps VP Singh might count, riding in an open jeep to Amritsar, as might AB Vajpayee’s Pokhran II and travelling on a bus to Lahore. In general, the BJP’s charge that Manmohan was “weak” may have constructively led to serious discussion in the country about the whole nature of the Prime Ministership in modern India, which means raising a whole gamut of issues about Indian governance – about India being the softest of “soft states”, with the softest of “soft government budget constraints” (i.e., endless deficit finance and paper money creation) etc.
Instead, what we have had thus far is apologies being exchanged for no real political reason between the leaderships of the Government and the Opposition. If two or three sellers come to implicitly carve up a market between themselves they are said by economic theory to be colluding rather than being in competition. Indian politics may be revealing such implicit collusive behaviour. The goal of this political oligopoly would seem to be to preserve and promote the status quo of the post-1947 Dilli Raj with its special hereditary nomenclatura, at the expense of anonymous diffused teeming India.
Subroto Roy
Postscript July 15 2009: Churchill’s mature opinion of Baldwin was one of the fullest praise at the 20 May 1950 unveiling of a memorial to him. See his In the Balance, edited by Randolph S Churchill, 1951, p. 281
A lawyer friend tells me she thinks it a “technicality” that there is no Lok Sabha or Parliament in India today despite eleven long days and nights having passed since the 15th Lok Sabha came to be elected by the people of India. “At least we did not get Advani and Modi to rule”, is how she sought to justify the current circumstance. I am afraid I think she has produced a non sequitur, and also forgotten the constitutional law she would have read as a student.
The best argument that I think the Government of India shall be able to give justifying their legal error in not having the 15th Lok Sabha up and running yet 11 days after India’s people have spoken would run something like this:
(1) The President of India invites a Council of Ministers led by a PM to form the government and has done so.
(2) The President must be satisfied that the PM commands a majority in the Lok Sabha, and the President has been satisfied by the 322 “letters of support” that the PM produced.
(3) The Government of the day calls parliamentary sessions and does so at its discretion, and the Government of the day headed by this PM has announced when it shall call the 15th Lok Sabha which will be in a few days yet.
Any such argument, I am afraid, would be specious because it simply puts the cart before the horse.
Parliament is sovereign in India, to repeat what I have said several times before.
Parliament is sovereign in India — not even the President who is the symbol of that sovereignty. We do not follow the British quite exactly in this because we are a republic and not a monarchy. In Britain sovereignty rests with “The King in Parliament”. With us, Parliament is sovereign and the President is the symbol of that sovereignty. In all matters of state, our President must act in a manner that Parliament and parliamentary law says.
Parliament is sovereign in India — not the Executive Government, certainly not its largest political party or its leader.
Parliament is sovereign in India because the people of India have chosen it to be so within the Constitution of India.
Parliament is sovereign in India and the people of India have elected the 15th Lok Sabha which has still not been allowed to meet eleven days later.
To the contrary, as noted days ago, the purported “Cabinet” of the 14th Lok Sabha, a dead institution, met on May 18 2009, some 48 hours after the 15th Lok Sabha had already been declared! The 14th Lok Sabha in fact stood automatically dissolved in law when General Elections came to be announced.
Is all this merely a “technicality” as my friend believes? I think not.
Executive Government in India derives its political legitimacy from being elected by Parliament, i.e., from holding the confidence of Parliament, and that means the Lok Sabha.
The Government of the day might for sake of convenience have a prerogative of calling sessions of the 15th Lok Sabha once it has been constituted but the Government of the day cannot logically constitute a Lok Sabha after a General Election because it itself receives legitimacy from such a Lok Sabha.
If the 15th Lok Sabha has not met, confidence in any Executive has yet to be recorded, and hence any such Government has yet to receive legitimacy.
Do “322 letters of support” suffice? Hardly. They are signed after all by persons who have yet to take their seats in the Lok Sabha! (Let us leave aside the fact that the PM, not being a member of the Lok Sabha, is in this case unable to be one of those 322 himself!)
Yet we have 79 “Ministers” of this new “Government” holding press-conferences and giving out free-bees and favours etc already. As I have said before, Ambedkar, Nehru and others of their generation, plus Indira and Rajiv too, would all have been appalled.
Because the incompetence of the fascists and communists in the Opposition may continue to be expected, it will be up to ordinary citizens and voters of India to point out such simple truths whenever the Emperor is found to be naked. (Our docile juvenile ingratiating media may well remain mostly hopeless.)
There are at least three Supreme Court lawyers, all highly voluble, among the higher echelons of Congress Party politicians; it is surprising that not one of them has been able to get the top Party leadership of Sonia Gandhi and Manmohan Singh to see the apparent breach of normal constitutional law in Parliament not having met more than 10 days after it was elected.
A Government has been formed, Ministers have entered their offices and have been holding press-conferences and taking executive decisions, wannabe-Ministers continue to be wrangling night-and-day for the plums of office — BUT THERE IS NO PARLIAMENT!
Today is the death-anniversary of Jawaharlal Nehru and last week was the death anniversary of Rajiv Gandhi.
Nehru, whatever his faults and infirmities, was an outstanding parliamentarian and a believer in the Westminster model in particular. He was intimately familiar with its unpoken customs and unwritten laws. He would have been completely appalled by the situation today where luminaries of the party that goes by the same name as the one he had led are paying obeisance to his memory 45 years after his death but have failed to see the absurdity in having a Government in office with no new Parliament ten days after a month-long General Election was over! (Incidentally, had he not left explicit instructions against any hero-worship taking place of himself too?)
Rajiv knew his grandfather and had acquired a sense of noblesse oblige from him. He too would have been appalled that the procedural business of government had been simply procrastinated over like this.
It surprises me that Dr Manmohan Singh, having been a post-graduate of Cambridge, having earned a doctorate from Oxford, and more recently having been awarded honorary doctorates from both Ancient Universities, should seem so unaware of the elements of the Westminster model of constitutional jurisprudence which guides our polity too.
It is too late now and the mistakes have been made. I hope his new Government will come to realise at some point and then keep in mind that our Executive receives political legitimacy from Parliament, not vice versa. An Executive can hardly be legitimately in office until the Parliament that is supposed to elect it has been sworn in.
As for our putative Opposition in the Parliament-yet-to-meet, it seems to have drawn a blank too, and eo ipso revealed its own constitutional backwardness and lethargy.
First published in The Statesman Jan 13 2006 Editorial Page Special Article,
By Subroto Roy
The Speaker does not like the fact the High Court has issued notices questioning the procedure he followed in expelling MPs from Parliament. Sonia Gandhi’s self-styled “National Advisory Council” has demanded control over disbursement of 100,000,000,000 rupees of public money. The Manmohan Singh Government plans to quietly ignore the Supreme Court’s finding that it had breached India’s Constitution in imposing President’s Rule in Bihar. All three issues have to do with application of India’s Separation of Powers Doctrine, i.e. the appropriate delimitation of Constitutional powers between our Legislature, Executive and Judiciary.
A constitutional crime was attempted in India during the Indira-Sanjay Gandhi political “Emergency” declared on 26 June 1975. On 10 November 1975 (a time of press censorship) a 13-judge Bench of the Supreme Court met to hear the Government plead for overrule of Kesavananda Bharati (A.I.R. 1973 S.C. 1461), a landmark Nani Palkhivala once called “the greatest contribution of the Republic of India to constitutional jurisprudence”. Within two days, the Government had failed in the Court, and Kesavananda held. What was upheld? That while India’s Parliament was sovereign and could amend the Constitution, the amending power may not be used to alter or destroy “the basic structure or framework of the Constitution”. And the Supreme Court decides for itself whether Parliament has exceeded its legitimate power to amend.
Basic structure Palkhivala’s description of what constitutes the “basic structure or framework” of India’s Constitution is excellent enough: “the rule of law, the right to personal liberty and freedom from arbitrary arrest and imprisonment, the right to dissent which implies the freedom of speech and expression and a free press are… a part of the basic structure of a free democracy, and it is these priceless human freedoms which cannot be destroyed by Parliament in exercise of its amending power. Thus Kesavananda’s case ensures that tyranny and despotism shall not masquerade as constitutionalism.”
Palkhivala argued that, if anything, the aspects of Kesavananda that needed to be set aside were those that had over-ruled Golaknath (A.I.R. 1967 S.C. 1643) which said Parliament should not be held to have the power to abridge any fundamental right, indeed any amended article which abrogates any fundamental right is invalid.
Dicey said “In the principle of the distribution of powers which determines its form, the constitution of the United States is the exact opposite of the English constitution.” Kesavananda Bharati showed the midway point between the two in constitutional jurisprudence anywhere in the world. We are like the Americans and unlike the British first in being a Republic, and secondly in having an explicit written Constitution. We are like the British and unlike the Americans in being a parliamentary democracy where the Executive Branch of Government, namely the Prime Minister and his/her Cabinet is elected from within the Legislative Branch of Government, namely, Parliament, and must at all times retain the confidence of the latter, specifically the Lok Sabha, the House of the People.
The American Executive Branch has a directly-elected President who chooses his administration, and it is commonplace for him to not have the confidence of the Upper or Lower House of the Legislature, to the point that one recent president had to undergo impeachment proceedings and barely survived. There is no constitutional crisis in America if the Legislature loathes the President and wishes him out. The American President and his Executive Branch stay in office until the last minute of his fixed term.
PM answers to Parliament In our system, the Prime Minister answers at all times to Parliament. Parliament in India’s democracy has normally meant the House of the People — where every member has contested and won a direct vote in his/her constituency. India’s current Lok Sabha has set a constitutional precedent not seen in more than a hundred years anywhere in electing an Executive led by someone not a member. The British Upper House used to have an aristocratic hereditary component which Mr Blair’s New Labour Government has removed, making it more like what the Rajya Sabha was supposed to be — except that by now our Rajya Sabha has tended to become a place for party worthies who have lost normal elections, superannuated cinematic personalities, perpetual bureaucrats still seeking office, and others who really should be at home helping to raise the grandchildren. Parliament may not have fully recovered its health ever since that constitutional crime committed against the Republic known as the Indira-Sanjay “Emergency” (and at least one member of Sanjay’s coterie wields much power today).
Crimes and misdemeanours The Supreme Court’s finding that the Government breached the Constitution by imposing President’s Rule in Bihar is a finding not of a constitutional crime but of a constitutional misdemeanour. (For reasons given already in these columns on 20 October 2005, it has nothing to do with the President, who merely embodies the sovereignty of our Republic.) For an Executive Order or Legislative Act to be found by a competent Court as being unconstitutional means merely that it does not have to be obeyed by citizens. In the Bihar case, the Supreme Court found this consequence irrelevant because new elections were already in process, the result of which would come from the most authentic democratic voice possible, namely, the same people who elect the House of the People in the first place. India’s Executive has been found to have committed a constitutional misdemeanour, for which it needed to apologise to the Court and Parliament (who are its constitutional co-equals) and then ask the latter to renew its confidence — in which event, life goes on. If confidence was not renewed, the Government would fall and a new Government would have to be formed. But we do not have yet the idea of a backbench revolt —mainly because all the front benches themselves have tended to be in such confusion and disarray with regard to parliamentary traditions, processes and functions.
The Supreme Court as the ultimate protector of the Constitution would be well within its prerogative to oversee whether a Parliamentary Speaker has acted appropriately. Consider a hypothetical case. Once elected, a Speaker is supposed to have no party-affiliation ever more for the rest of his/her life. Suppose, hypothetically, a controlled experiment found a Speaker systematically biased in favour of his/her own former party-members and against their opponents. Where but the Courts could such arbitrariness be effectively remonstrated against? Even if the incumbent Speaker impossibly imagines himself the personal embodiment of the Legislative Branch, he is not beyond the Constitution and therefore not beyond India’s Separation of Powers’ Doctrine.
The Opposition had alleged that the Speaker failed to follow procedure which required the culprits in the expulsion case be referred to the Privileges Committee. But beyond that the Opposition was too confused and guilt-ridden to pursue the matter during the dying moments of Parliament’s Winter Session. In the clear light of day, the issue has now ended up in the Courts. If the Supreme Court eventually rules the Speaker had in fact failed to follow Parliament’s own procedures (and hence breached Constitutional practices), the Speaker would need to apologise to the Courts and the House that elected him, and perhaps offer to fall on his sword.
Finally, for the “National Advisory Council”, a wholly unelected body, to demand a say for itself over spending Rs. 100 billion in State and Union Government budget-making, would be another constitutional misdemeanour — unless its members are merely on the personal staff of the Hon’ble Member representing Rae Bareili, who may of course introduce whatever legislation on money-bills that any other Lok Sabha Member may do.
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Independent Indian: Work & Life of Professor Subroto Roy 