Govt of India maintains whole of J&K as it existed on 15th of august 1947 is an integral part of India and therefore it calls part of it under Pakistan control as Pak Occupied Kashmir [pok]. Recently, I had an occasion to meet Justice Manzoor Geelani, a former Chief Justice of Azad kashmir (POK). He told me that this stand of India is not even supported by Indian Constitution. What followed was surprising to me and I am sure will surprise many.
Let us first see the relevant provisions of J&K Constitution for TERRITORY OF THE STATE - The territory of the state shall comprise all the territories which on fifteenth day of August 1947, were under the sovereignty or suzerainty of the Ruler of the State. There is no confusion or ambiguity as to what territories constitute Jammu & Kashmir. But now see the provisions of constitution of India Art 1 reads:
[1] India that is Bharat shall be a union of states.
[2]The states and territories thereof shall be as specified in the first schedule..
Reading of this Art would mean that territories and states mentioned in schedule one only will be constituents of Indian union. Entry 15 of schedule one deals with J&K and mentions,'THE TERRITORY WHICH IMMEDIATELY BEFORE THE COMMENCEMENT OF THIS CONSTITUTION WERE COMPRISED IN THE INDIAN STATE STATE OF JAMMU AND KASHMIR'/ Constitution of India became operative from 26th Jan 1950 and on that date part of J&K was not 'Indian Territory'
I am purposely not giving an opinion as I hope it will generate some debate and I should wait for opinions of others.
Let us first see the relevant provisions of J&K Constitution for TERRITORY OF THE STATE - The territory of the state shall comprise all the territories which on fifteenth day of August 1947, were under the sovereignty or suzerainty of the Ruler of the State. There is no confusion or ambiguity as to what territories constitute Jammu & Kashmir. But now see the provisions of constitution of India Art 1 reads:
[1] India that is Bharat shall be a union of states.
[2]The states and territories thereof shall be as specified in the first schedule..
Reading of this Art would mean that territories and states mentioned in schedule one only will be constituents of Indian union. Entry 15 of schedule one deals with J&K and mentions,'THE TERRITORY WHICH IMMEDIATELY BEFORE THE COMMENCEMENT OF THIS CONSTITUTION WERE COMPRISED IN THE INDIAN STATE STATE OF JAMMU AND KASHMIR'/ Constitution of India became operative from 26th Jan 1950 and on that date part of J&K was not 'Indian Territory'
I am purposely not giving an opinion as I hope it will generate some debate and I should wait for opinions of others.
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I appreciate the view of judicial luminary from across the border. My only reservation is that Kashmir is a political not a legal problem. Constitutions / Acts can be changed swiftly. Indian govt will be more than happy to make the corrections in the constitution if that mere change can allow it to claim / reclaim (whatever sounds politically correct) the other part of Kashmir.
ReplyDeleteMr Nazki please now give your opinion now because it has been more than a month since you published this post.