The Telengana issue (Hindu Article)

United Andhra Pradesh with constitutional empowerment of Telangana ‘best way forward' 

Srikrishna Committee says separate Telangana is ‘second best option' if unavoidable & all three regions agree
— PHOTOS: P.V . SIVAKUMAR, PTI/ SHAHBAZ KHAN

HARDENING STANCE: Telangana Rashtra Samiti president K. Chandrasekhara Rao with BJP leader Bandaru Dattatreya at a dharna in Hyderabad on Thursday. Both parties are firm on the demand for a separate Telangana State. 
 
NEW DELHI: The Srikrishna Committee has favoured maintaining the status quo of a united Andhra Pradesh and described the demand for a Telangana State as the “second best option.”

In its report, which was made public on Thursday, the Committee found the option of a united Andhra Pradesh the “most workable” in the circumstances and in the best interests of the social and economic welfare of people. “In this option, it is proposed to keep the State united and provide constitutional/statutory measures to address the core socio-economic concerns about the development of the Telangana region,” it said.

The report was submitted to Union Home Minister P. Chidambaram on December 30.

The 461-page report lists six options —

(I) maintaining the status quo;
(II) bifurcation of the State into Seemandhra and Telangana, with Hyderabad as a Union Territory, and the two States developing their own capitals in due course; 
(III) bifurcation of the State into the Rayala-Telangana and coastal Andhra regions, with Hyderabad being an integral part of Rayala-Telangana; 
(IV) bifurcation of Andhra Pradesh into Seemandhra and Telangana, with an enlarged Hyderabad metropolis as a separate Union Territory; 
(V) bifurcation of the State into Telangana and Seemandhra as per the existing boundaries, with Hyderabad serving as the capital of Telangana, and Seemandhra having a new capital; and
(VI) keeping the State united by simultaneously providing certain definite constitutional/statutory measures for socio-economic development and political empowerment of the Telangana region — creation of a statutorily empowered Telangana Regional Council.


Union Home Minister P. Chidambaram addresses the media in New Delhi after meeting political parties from Andhra Pradesh on the Telangana issue. 
 
The Committee found the fifth option the “second best,” with a rider that separation “is recommended only in case it is unavoidable and if this decision can be reached amicably among all the three regions.” Considering the option of bifurcating the State into Telangana and Seemandhra as per the existing boundaries, the Committee felt that the continuing demand for a separate Telangana had some merit, and “is not entirely unjustified.” In case, this option was exercised, the apprehensions of the coastal Andhra and Rayalaseema people and others who settled in Hyderabad and other districts of Telangana about their investments, property, livelihood and employment would need to be absolutely addressed.

“Considering all aspects, the Committee felt that while the creation of a separate Telangana would satisfy a large majority of people from the region, it will also throw up several other serious problems. Therefore, after taking into account the pros and cons, the Committee did not think it to be the most preferred, but the second best option,” the report said.

Maintaining the status quo was the least-favoured option. It also found the second and third options “not practicable.” The Committee felt that the fourth option of bifurcating Andhra Pradesh into Seemandhra and Telangana, with an enlarged Hyderabad metropolis as a separate Union Territory, was likely to meet with stiff opposition from the Telangana protagonists, and it might be difficult to reach a political consensus on making this solution acceptable to all.

On the sixth option of keeping the State united, the Committee said it could be done through the establishment of a statutory and empowered Telangana Regional Council with adequate transfer of funds, functions and functionaries. “The Regional Council would provide a legislative consultative mechanism for the subjects to be dealt with by the Council.”

 

The Committee felt that with firm political and administrative management, it should be possible to convince the people of the importance keeping the State united, as this option would be in the best interests of all, and would provide satisfaction to the maximum number of people. “It would also take care of the uncertainty over the future of Hyderabad as a bustling educational, industrial and IT hub/destination.”

Dwelling further on the sixth option, it said that for managing water and irrigation resources equitably, a technical body — water management board — and an irrigation project development corporation with an expanded role were recommended. This should meet all the issues raised by the Telangana people satisfactorily, it said. Flagging socio-economic development and good governance as the core issue, the Committee, keeping the national perspective in mind, was of the considered view that “this option stands out as the best way forward.”

The five-member Committee, headed by the former Supreme Court judge, B. N. Srikrishna, was appointed on February 3, 2010. It examined in detail the issues pertaining to the current demand for a separate Telangana as well as the demand for a united State. The Committee examined all aspects of the situation. Keeping in view the local, regional and national perspectives, it gave the six options.

It examined such parameters as regional, economic and equity analysis, education and health, water resources, irrigation and power development, public employment. It also looked into the issues relating to Hyderabad and the sociological and cultural issues. In the past 11 months, it consulted representatives of industry, trade, trade unions and organisations of farmers, women and students, and all sections of the people, especially the political parties.

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Should we be so much DESPO for the UNSC permanent membership

India's peaceful rise deserves more focus and attention currently than gaining UNSC power, writes N.V.Subramanian.

London, 17 November 2010:

Somewhere, India gives the impression that it has subsumed its great-power ambitions to its quest for permanent membership in the UN Security Council (UNSC). It is a dangerous case of misplaced priorities. The order should be reversed. Or else India will suffer setbacks on both great-power and UNSC permanent membership ambitions. The reasoning is as follows. UNSC permanent membership since it came into being has been a benchmark for state power. De-colonization, the end of the Cold War and globalization have degraded the power status of all the permanent members bar China. 

In small or big or irreversible ways, the US, Russia, France and the UK are declining. Only China or more accurately the Peoples' Republic (PRC) has risen in this duration. 

PRC replaced Taiwan as a veto power in the early seventies reflecting Cold War realities. The veto powers are also NPT-designated nuclear weapons' states. India was offered Taiwan's permanent membership but reportedly Jawaharlal Nehru declined it in favour of PRC possibly to win its friendship. China reciprocated by aggressing against India in nineteen sixty-two. 

Relations between India and China have remained hostile since despite growing trade relations. To aid its rise and fuel its Middle-Kingdom ambitions, China has protected allied pariah states and regimes, including Burma, North Korea, Sudan and Pakistan, by abusing its UNSC power. Seeing the China example, India has invested new virtue and espies vast opportunities in a UNSC permanent membership. 

There are mutterings against Nehru for spurning the fifties' offer of veto power. Surely, there are huge advantages of permanent membership. This is why India ardently has been pressing for it since the previous US president, George W.Bush, offered both the nuclear deal and to make India a great power. 

During his recent visit, president Barack Obama finally supported India's UNSC ambitions with the rider to move on Burma  and to shoulder other international "responsibilities". Even if the tenor of Obama's qualified support was shrill, the substance of it was not off-the-mark. With power comes responsibility. Is India ready to take positions internationally that may conflict with its national interests? This question would never arise if India had reversed its priorities, that is, putting its great-power ambitions ahead of its quest for UNSC permanent membership, making that quest open-ended and hardly a life-and-death matter as it appears to have become today. The fact is that all the veto powers have pulled their weight and/ or made sacrifices in one or another phase of history to justify their gained positions. Because they have come to the UN Security Council from a position of strength, either separately or in an alliance, they have been able to set the agenda. The agenda often hasn't been very agreeable and frequently disastrously discordant. This is why there is so much clamour for reforms. But even a reformed United Nations and UNSC will set agendas not uniformly acceptable, and India will be involved in agenda-making if it becomes a veto power. Now does it make sense for India to be like the older powers that set their own agendas or to succumb to an agenda-making process where its own interests are compromised?

Naturally, it makes sense to be like the older powers, which means, India has to pull its own weight to become a UNSC permanent member. What does "pulling weight" mean? Simply this. India must have all-round economic, political, military and cultural heft to become an influential, transformative and unstoppable world power. 

The fact that Obama endorsed India's UNSC ambitions means India has got the game so far right. But there is a long way to go. The stark reality is that India is rising while the older powers are in decline. But the rise is still not powerful enough to make India an "influential, transformative, unstoppable world power". Short of that, India will lose more by getting permanently into the UN Security Council than by remaining outside it. Indeed, it may be argued that India will decline if it prematurely becomes a UNSC power. To this writer at least, the road map is clear. India's energies largely must be directed to becoming an "influential, transformative, unstoppable world power". 

India should be able to impose its peace  without formal membership in the league of great powers. The membership will come by invitation in short course. This is not to suggest India should abandon diplomacy to win UNSC power soon. But any show of desperation will backfire, particularly with a staunch foe as China. (Its recently expressed willingness to "increase consultations and communications with India" on the UNSC issue should be taken with a pinch of salt.) India should lower the UNSC stakes and more fully focus on its "peaceful rise". 

As with individuals, so with states: It is mostly about influencing and all about winning. 


N.V.Subramanian is Editor, www.NewsInsight.net, and writes internationally on strategic affairs. He has authored two novels, University of Love (Writers Workshop, Calcutta) and Courtesan of Storms (Har-Anand, Delhi). Email: envysub@gmail.com.

Source- The Public Affairs Magazine 

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MR OB-AMERICAN administration's WPO (War Process Outsourcing)

CEOs were once too swamped with increasing cost of their businesses but thanks to internet and related sophisticated technologies that those costs have now been translated into sheer profits. Yes, it was BPO (business process outsourcing) which revolutionized the US and European market almost a decade ago. Let it be customer support, telesales, software development, payroll management or any other business process, just shift your burden to under-developing countries like India, Philippines and get your job done at lower price.

BPO looked like an epidemic which kept on spreading across the globe especially India. Pakistan seemed to have been lagging behind in BPO industry while India claiming most of the businesses. When you are pushed to the wall then it is a going all out situation and precisely that is what Pakistan did.

                                                 http://t0.gstatic.com/images?q=tbn:ANd9GcQDI2I5WgjU-nX_Ql4DB3r2gLUcRJV6SsRZAJ6T7heT0R7q35jN


American invasion of Afghanistan in 2001 gave them opportunity they barely could afford to miss. Pakistan identified new market that required not B2B but government to government dealing. They offered US to outsource their war on terror to Pakistan. It broke all records of cost efficiency that were associated were BPO. Total expenditure on a US soldier is 80000$/month whereas a Pakistani soldier better familiar with terrain is costing mere 900$/month.

Moreover Pakistan offered some of benefits which other hardly dared to offer

§ Quick response to customer feedback i.e. bombing any random FATA after "do more" statement.
§ Excellent customer support in such a way that to remain apologetic even if you perform well.
§ Complimentary killing of Pakistanis to show their commitment to serve better
§ Being flexible on culture to the extent that customer devised culture was enforced and war on terror became the first slogan of the nation
§ Customer empowerment to such degree that customer can even appoint top brass of Pakistani Government and can even transfer army personnel and strategize the policies of army.
§ Customer can dictate you to join hands with your arch competitors i.e. India.
§ Customer will tell where to spend its payments and will charge for its consultancy.
§ Payments would still subject to approval of customer even if all requirements were met.
§ Customer can always opt out of the contract anytime whereas Pakistan cannot back out with its consent.
§ Even if there is no other country which will agree to aforementioned business with US. Pakistan would still consider it a favor from US and will remain obliged.
§ Customer will not compensate for any damage done to Pakistan while providing services or reaction to those services.

India is still taken aback over such bold strategy to draw foreign investment into the country. Experts believe that with predictions of new wars emerging in years to come, Pakistan will capitalize on competitive advantage they have got over others.

India and rest of the world will feel left out as the time will come.

Source- Ezine Articles

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Have the CBI -lost teeth?

  Does C.B.I.  mean Central Bonded Investigation agency !



Public confidence in the Central Bureau of Investigation (CBI), which had gone up in the wake  of the successful investigation and prosecution of the cases relating to the assassination of Rajiv Gandhi in May 1991 and the Mumbai blasts of March 1993, has taken a series of beatings during 2010. The Government of
http://t1.gstatic.com/images?q=tbn:ANd9GcSl-ceru1juuXJ8AMMGlkCzjGa_DgWQTW_AR6vtCTOgum2aiUXtTwDr Manmohan Singh has been watching helplessly as the CBI is coming to be viewed increasingly by growing sections of public opinion as a highly unprofessional and politicized agency with neither the will nor the capability to improve the quality of the investigation and prosecution of the cases entrusted to it.

The intriguingly belated response of the CBI to the investigation of the major corruption cases of 2010 entrusted to it has rightly or wrongly created an impression in the minds of the  public that instead of guarding its reputation  as the leading investigation agency of the country, it has let itself become the leading cover-up agency. Neither the  senior officials of the agency nor the Prime Minister’s Office and the Cabinet Secretariat have come out with a convincing explanation as to why the CBI moved and continues to move  with disturbing slowness in taking the necessary investigative steps such as raids of the houses and offices of the suspects, freezing of their bank accounts and their interrogation in the cases relating to alleged corruption in  the conduct of the Commonwealth Games and  the handling of the 2G spectrum by A.Raja, former Minister for Telecommunications. The public cannot be blamed if it concludes that the CBI’s objective seems to be not to find out the truth, but to cover up the truth for a sufficiently long time till public memory and outrage over the extent of corruption dissipates.

One saw during 2010  surprising instance of selective leaks to certain sections of the media of some of the tapped telephone conversations of Niira Radia, the lobbyist. Those sections of the tapes which would have contained evidence of criminal wrong-doing have been carefully protected from leakage to the media, but certain sections which had no evidence of criminal wrong-doing, but merely contained material tending to damage the personal reputation of certain eminent persons were leaked to the media by unidentified elements with a suspect motive.

Though the tapping was reportedly authorized at the request of  agencies dealing with tax evasion and money-laundering, the CBI most probably had an interest in the tapping in connection with its investigations. It had an obligation to maintain the confidentiality of the intercepts in order to protect the right to privacy of innocent persons. By failing to meet this obligation, the CBI and other agencies involved have let their reputation for professionalism be damaged.

The end of the year saw  yet another blow to the reputation of the CBI when it moved the Ghaziabad Special Court on December 29 for permission to close the case relating to the alleged murder, under mysterious circumstances, of Aarushi, the 14-year-old daughter of Rajesh Talwar and Nupur, a dentist couple living in Noida near Delhi on May 16,2008.

The case was initially mishandled by the UP Police. It was handed over to the CBI on June 1,2008. Public expectation that the CBI, being a reputed professional agency with better capabilities and investigating skills than the UP Police, would unravel the mystery behind the murder and identify, arrest and prosecute the culprits has been belied. The CBI has moved for the closure of the investigation on the ground that it has not been able to make any headway in the investigation and there are no prospects of its making any headway in the future even if it continued with the investigation.

The murder of Aarushi and the subsequent death under mysterious circumstances of a domestic assistant of  her parents had shocked the public. The public was equally shocked by the wildly contradictory accounts of the investigation by the Police and the CBI that were leaked out to the media without any regard to the reputation of Aarushi. The allegations, if true, made by her parents that they were not kept informed by the CBI of its decision to move for the closure of the investigation has shown shocking insensitivity on the part of the CBI.

The lethargic handling of the cases relating to corruption has created strong suspicions in the minds of the public that the CBI’s investigation has been influenced by political considerations. If true, this indicates a politicization of the agency to a degree unsuspected till now. The CBI’s apparent cluelessness in the Aarushi case speak of a worrisome deterioration in the investigation skills of the agency and in the quality of the supervision over its work.

What is even more disturbing is the seeming indifference of the Government to  public criticism of the functioning of the CBI in relation to these and other cases. There has been no attempt on the part of the Government to take the CBI to task for the way it has handled these cases and to convince the public that it has tightened up  the monitoring of the work of the CBI.

The CBI has come under criticism from time to time since the days of the State of Emergency imposed by the Indira Gandhi Government in 1975. The enquiries ordered by the Morarji Desai Government after it came to office in 1977 brought out many instances of serious misdeeds by the CBI during the Emergency. The CBI’s performance again came in for strong criticism during the enquiry into the Bofors scandal in the 1980s. There were allegations even then as there are now that the CBI acts not as an investigating agency, but as a cover-up agency doing the bidding of the party in power.

These criticisms have not led to a comprehensive enquiry into the functioning of the CBI either by a group of eminent professionals with untarnished reputation or by a Joint Parliamentary Committee. The CBI reportedly submits every year a report on its work during the year. These reports hardly figure in debates either in the public or in the Parliament.

The Chinese Government has issued a White Paper--the first of its kind--on December 29 on corruption in China and how the Government has been dealing with the problem. Even in an authoritarian country like China, the Government has felt the need for convincing the public that it is aware of their concerns over  corruption and that it is alive to the need for dealing with the problem in a manner that brings satisfaction to the people.

Despite India being a democracy with its Government supposedly being accountable to the people, the Government has shown a shocking lack of concern over public criticism of the functioning of the CBI and over evidence of a general institutional decay which has permitted corruption to thrive. Public opinion should force the Government to institute a comprehensive enquiry into the functioning of the CBI and initiate measures to restore its image in the eyes of the public.

The indifference of the Government to the institutional decay should not be tolerated by the public.

B. Raman is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai.

Source -- Outlook

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Article 370: Law and politics

Article 370: Law and politics

While the Constitution recognises in Article 370 the special status of Jammu and Kashmir, the Central Government's policies since 1953 have totally undermined its autonomy. Senior lawyer and political analyst A.G. NOORANI discusses both aspects and suggests a way out of the mess.
 

"I say with all respect to our Constitution that it just does not matter what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion..."
"We have fought the good fight about Kashmir on the field of battle... (and) ...in many a chancellery of the world and in the United Nations, but, above all, we have fought this fight in the hearts and minds of men and women of that State of Jammu and Kashmir. Because, ultimately - I say this with all deference to this Parliament - the decision will be made in the hearts and minds of the men and women of Kashmir; neither in this Parliament, nor in the United Nations nor by anybody else," Jawaharlal N ehru said in the Lok Sabha on June 26 and August 7, 1952.
- Selected works of Jawaharlal Nehru, Vol. 18, p. 418 and
vol. 19 pp. 295-6, respectively. 

"From 1953 to 1975, Chief Ministers of that State had been nominees of Delhi. Their appointment to that post was legitimised by the holding of farcical and totally rigged elections in which the Congress party led by Delhi's nominee was elected by huge majorities." 
 
- This authoritative description of a blot on our record which most overlook was written by B. K. Nehru, who was Governor of Kashmir from 1981 to 1984, in his memoirs published in 1997 (Nice Guys Finish Second; pp. 614-5). 

THOSE who cavil at Article 370 of the Indian Constitution and the "special status" of Kashmir constitutionally ought to remember the "special" treatment meted out to it politically. Which other State has been subjected to such debasement an d humiliation? And, why was this done? It was because New Delhi had second thoughts on Article 370. It could not be abrogated legally. It was reduced to a husk through political fraud and constitutional abuse. The current debate is much more than about restoration of Article 370 by erasing the distortions. It is about redressing a moral wrong.
The United Front government's minimum programme, published on June 5, 1996, said "respecting Article 370 of the Constitution as well as the wishes of the people, the problems of Jammu and Kashmir will be resolved through giving the people of that State t he maximum degree of autonomy."

Constitutional abuse accompanied political fraud. Article 370 was intended to guarantee Kashmir's autonomy. On December 4, 1964, Union Home Minister G. L. Nanda said it would be used to serve as "a tunnel (sic.) in the wall" in order to increase the Cent re's power. 

The State was put in a status inferior to that of other States. One illustration suffices to demonstrate that. Parliament had to amend the Constitution four times, by means of the 59th, 64th, 67th and 68th Constitution Amendments, to extend the President's Rule imposed in Punjab on May 11, 1987. For the State of Jammu and Kashmir the same result was accomplished, from 1990 to 1996, by mere executive orders under Article 370.

Another gross case illustrates the capacity for abuse. On July 30, 1986, the President made an order under Article 370, extending to Kashmir Article 249 of the Constitution in order to empower Parliament to legislate even on a matter in the State List on the strength of a Rajya Sabha resolution. "Concurrence" to this was given by the Centre's own appointee, Governor Jagmohan. G.A. Lone, a former Secretary, Law and Parliamentary Affairs, to the State Government described in Kashmir Times (April 20 , 1995) how the "manipulation" was done "in a single day" against the Law Secretary's advice and "in the absence of a Council of Ministers." 

The Nehru-Abdullah Agreement in July 1952 ("the Delhi Agreement") confirmed that "the residuary powers of legislation" (on matters not mentioned in the State List or the Concurrent List), which Article 248 and Entry 97 (Union List) confer on the Union, w ill not apply to Kashmir. The order of 1986 purported to apply to the State Article 249, which empowers Parliament to legislate even on a matter in the State List if a Rajya Sabha resolution so authorises it by a two-thirds vote. But it so amended Article 249 in its application to Kashmir as in effect to apply Article 248 instead - "any matter specified in the resolution, being a matter which is not enumerated in the Union List or in the Concurrent List." 

The Union thus acquired the power to legislate not only on all matters in the State List, but others not mentioned in the Union List or the Concurrent List - the residuary power. In relation to other States, an amendment to the Constitution would require a two-thirds vote by both Houses of Parliament plus ratification by the States (Article 368). For Kashmir, executive orders have sufficed since 1953 and can continue till Doomsday. "Nowhere else, as far as I can see, is there any provision author ising the executive government to make amendments in the Constitution," President Rajendra Prasad pointed out to Prime Minister Nehru on September 6, 1952. Nowhere else, in the world, indeed. Is this the state of things we wish to perpetuate? Uniquely Ka shmir negotiated the terms of its membership of the Union for five months. Article 370 was adopted by the Constituent Assembly as a result of those parleys. 

YET, all hell broke loose when the State Assembly adopted, on June 26, a resolution recording its acceptance of the report of the State Autonomy Committee (the Report) and asked "the Union Government and the Government of Jammu and Kashmir to take positi ve and effective steps for the implementation of the same." On July 4, the Union Cabinet said that the resolution was "unacceptable... would set the clock back and reverse the natural process of harmonising the aspirations of the people of Jammu & Kashmi r with the integrity of the State" - a patent falsehood, as everyone knows. 

The State's Law Minister, P.L. Handoo, said on June 26 that the people "want nothing more than what they had in 1953." Overworked metaphors (about the clock or the waters of the Jhelum which flowed since) do not answer two crucial questions: Can lapse of time sanctify patent constitutional abuse? Can it supply legislative competence? If Parliament has legislated over the States on a matter on which it had no power to legislate, under the Constitution, it would be a nullity. Especially if the State's people have been protesting meanwhile and their voice was stifled through rigged elections. 

Disapproval of Chief Minister Farooq Abdullah's opportunist politics should not blind one to the constitutional issues. The State's Finance Minister, Abdul Rahim Rather, a moving spirit behind the Report, resents suggestions of political timing. The repo rt was placed before the Assembly on April 13, 1999. The State Cabinet endorsed its recommendations and decided last April to convene a special session of the Assembly to discuss it. The Government of India was "once again requested to set up a ministeri al committee in order to initiate a dialogue on the report." 

It provides a comprehensive survey of constitutional developments, which is useful in itself for its documentation. It lists 42 orders under Article 370 and gives the following opinion: "Not all these orders can be objected to. For instance, none can obj ect to provisions for direct elections to Parliament in 1966... It is the principle that matters. Constitutional limits are there to be respected, not violated." 

The ruler of Jammu and Kashmir acceded to India by an Instrument of Accession on October 26, 1947 in respect of only three subjects - defence, foreign affairs and communications. A schedule listed precisely 16 topics under these heads plus four others (e lections to Union legislature and the like). 

Clause 5 said that the Instrument could not be altered without the State's consent. Clause 7 read: "Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or fetter my discretion to enter into arrangements with the Government of India under any such future Constitution." Kashmir was then governed internally by its own Constitution of 1939. 

The Maharaja made an Order on October 30, 1947 appointing Sheikh Abdullah the Head of the Emergency Administration, replacing it, on March 5, 1948, with an Interim Government with the Sheikh as Prime Minister. It was enjoined to convene a National Assembly "to frame a Constitution" for the State. 

Negotiations were held on May 15 and 16, 1949 at Vallabhbhai Patel's residence in New Delhi on Kashmir's future set-up. Nehru and Abdullah were present. Foremost among the topics were "the framing of a Constitution for the State" and "the subjects in res pect of which the State should accede to the Union of India." On the first, Nehru recorded in a letter to the Sheikh (on May 18) that both Patel and he agreed that it was a matter for the State's Constituent Assembly. "In regard to (ii) the Jammu and Kas hmir State now stands acceded to the Indian Union in respect of three subjects; namely, foreign affairs, defence and communications. It will be for the Constituent Assembly of the State when convened, to determine in respect of which other subjects the State may accede" (emphasis added, throughout). 

Article 370 embodies this basic principle which was reiterated throughout (S.W.J.N. Vol. 11; p. 12). 

On June 16, 1949, Sheikh Abdullah, Mirza Mammad Afzal Beg, Maulana Mohammed Saeed Masoodi and Moti Ram Bagda joined the Constituent Assembly of India. Negotiations began in earnest on Article 370 (Article 306. A in the draft). N. Gopalaswamy Ayyangar tri ed to reconcile the differences between Patel and Abdullah. A text, agreed on October 16, was moved in the Constituent Assembly the next day, unilaterally altered by Ayyangar. "A trivial change," as he admitted in a letter to the Sheikh on October 18. Pa tel confirmed it to Nehru on November 3 on his return from the United States. Beg had withdrawn his amendment after the accord. Abdullah and he were in the lobby, and rushed to the House when they learnt of the change. In its original form the draft woul d have made the Sheikh's ouster in 1953 impossible. 

ARTICLE 370 embodies six special provisions for Jammu and Kashmir. 

First, it exempted the State from the provisions of the Constitution providing for the governance of the States. Jammu and Kashmir was allowed to have its own Constitution within the Indi an Union. 

Second, Parliament's legislative power over the State was restricted to three subjects - defence, external affairs and communications. The President could extend to it other provisions of the Constitution to provide a constitutional framework if they related to the matters specified in the Instrument of Accession. For this, only "consultation" with the State government was required since the State had already accepted them by the Instrument. 

But, third, if other "constitutional" provisions or other Union powers were to be extended to Kashmir, the prior "concurrence" of the State government was required. 

The fourth feature is that that concurrence was provisional. It had to be ratified by the State's Constituent Assembly. Article 370(2) says clearly: "If the concurrence of the Government of the State... be given before the Constituent Assembly for the pu rpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon." 

The fifth feature is that the State government's authority to give the "concurrence" lasts only till the State's Constituent Assembly is "convened". It is an "interim" power. Once the Constituent Assembly met, the State government could not give its own "concurrence". Still less, after the Assembly met and dispersed. Moreover, the President cannot exercise his power to extend the Indian Constitution to Kashmir indefinitely. The power has to stop at the point the State's Constituent Assembly draft ed the State's Constitution and decided finally what additional subjects to confer on the Union, and what other provisions of the Constitution of India it should get extended to the State, rather than having their counterparts embodied in the State Const itution itself. Once the State's Constituent Assembly had finalised the scheme and dispersed, the President's extending powers ended completely. 

The sixth special feature, the last step in the process, is that Article 370(3) empowers the President to make an Order abrogating or amending it. But for this also "the recommendation" of the State's Constituent Assembly "shall be necessary before the President issues such a notification". 

Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution which apply to all the other States; namely, Article 368. For, in relation to Kashmir, Article 368 has a proviso which says that no constitutional amend ment "shall have effect in relation to the State of Jammu and Kashmir" unless applied by Order of the President under Article 370. That requires the concurrence of the State's government and ratification by its Constituent Assembly

Jammu and Kashmir is mentioned among the States of the Union in the First Schedule as Article 1 (2) requires. But Article 370 (1) (c) says: "The provisions of Article 1 and of this Article shall apply in relation to that State". Article 1 is thus appl ied to the State through Article 370. What would be the effect of its abrogation, as the Bharatiya Janata Party demands? 

Ayyangar's exposition of Article 370 in the Constituent Assembly on October 17, 1949 is authoritative. "We have also agreed that the will of the people through the instrument of the Constituent Assembly will determine the Constitution of the State as wel l as the sphere of Union jurisdiction over the State... You will remember that several of these clauses provide for the concurrence of the Government of Jammu and Kashmir State. Now, these relate particularly to matters which are not mentioned in the Ins trument of Accession, and it is one of our commitments to the people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the State for the purpose of framing its Co nstitution." 

Ayyangar explained that "the provision is made that when the Constituent Assembly of the State has met and taken its decision both on the Constitution for the State and on the range of federal jurisdiction over the State, the President may, on the recomm endation of that Constituent Assembly, issue an Order that this Article 306 (370 in the draft) shall either cease to be operative, or shall be operative only subject to such exceptions and modifications as may be specified by him. But before he issued an y order of that kind, the recommendation of the Constituent Assembly will be a condition precedent." 

THE HINDU PHOTO LIBRARY
Prime Minister Jawaharlal Nehru with Sheikh Abdullah.
This unique process of Presidential Orders altering constitutional provisions by a mere executive order ends with the final decision of the State's Constituent Assembly. Ayyangar repeatedly said that the State government's concurrence alone will not do. "That concurrence should be placed before the Constituent Assembly when it meets and the Constituent Assembly may take whatever decisions it likes on those matters." (Constituent Assembly Debates; Vol. 8; pp. 424-427). 

In 1949, no one knew when Kashmir's Constituent Assembly would be elected. Ayyangar therefore said: "The idea is that even before the Constituent Assembly meets, it may be necessary... that certain items which are not included in the Instrument of Access ion would be appropriately added to that list in the Instrument... and as this may happen before the Constituent Assembly meets, the only authority from whom we can get consent for the addition is the Government of the State." This was explicitly only for that interim period. 

Article 370 (1) (b) is clear. "The power of Parliament to make laws for the said State shall be limited to" (1) matters in the Union and Concurrent Lists corresponding to the broad heads specified in the Instrument of Accession "and (ii) such other matte rs in the said Lists as, with the concurrence of the Government of the State the President may by Order specify". An Explanation defined "the Government of the State". Similar "concurrence" was required when extending provisions regarding Union instituti ons beyond the agreed ones. But Article 370 (2) stipulated clearly that if that concurrence is given "before the Constituent Assembly... is convened, it shall be placed before such Assembly for such decision as it may take thereon". 

Once Kashmir's Constituent Assembly was "convened" on November 5, 1951, the State Government lost all authority to accord its "concurrence" to the Union. With the Assembly's dispersal on November 17, 1956, after adopting the Constitution of Jammu and Kas hmir, vanished the only authority which alone could cede: (a) more powers to the Union and (b) accept Union institutions other than those specified in the Instrument of Accession. All additions to Union powers since then are unconstitutional. This unders tanding informed decisions - right until 1957. 

THE Constituent Assembly of India adopted the Constitution on November 26, 1949. A day earlier, the ruler of Kashmir made a Proclamation declaring that it "shall in so far as it is applicable to the State of Jammu and Kashmir, govern the constitutional r elationships between this State and the contemplated Union of India". Article 370 is more than a provision of that solemn document. It is also a sacred compact with the State. On January 26, 1950, the President made his first Order under Article 370, extending specified provisions of the new Constitution to the State. 

On April 20, 1951, the ruler made a Proclamation for convening the State's Constituent Assembly. It met on November 5, 1951. Two issues came to the fore. Nehru was eager to secure Kashmir's "closer integration" with India; the Sheikh to ensure popular go vernance. The Delhi Agreement that followed was announced at a press conference in Delhi on July 24, 1952 by both. This Union-Centre accord had no legal force by itself. Only an Order under Article 370 could confer that - after the Sheikh gave his "concu rrence" formally. 

The Sheikh, meanwhile, pressed for an Order to redraft "the Explanation" in Article 370 redefining the State government as one headed by an elected "Sadar-i-Riyasat (State President)... acting on the advice" of his Ministers. 

As for the Sheikh's request, Nehru wrote on July 29, 1952: "It is not a perfectly clear matter from the legal point of view how far the President can issue notifications under Article 370 several times." On September 6, 1952, President Rajendra Prasad po inted out the illegality of such a course in a closely reasoned Note. (It is appended to the Report.) He questioned "the competence of the President to have repeated recourse to the extraordinary powers conferred on him" by Article 370. "Any provi sion authorising the executive government to make amendments in the Constitution" was an incongruity. He endorsed Ayyangar's views on the finality of a single Order under Article 370. "I have little doubt myself that the intention is that the power is to be exercised only once, for then alone would it be possible to determine with precision which particular provisions should be excepted and which modified." 

The President concluded: "The conclusion, therefore, seems to me to be irresistible that Clause (3) of Article 370 was not intended to be used from time to time as occasion required. Nor was it intended to be used without any limit as to time. The correc t view appears to be that recourse is to be had to this clause only when the Constituent Assembly (sic) (Constitution) of the State has been fully framed." That was over on November 17, 1956. But he yielded to Nehru's pressure and made the Order on Novem ber 15, 1952.
Events took a tragic course. The Sheikh was dismissed from office and imprisoned on August 9, 1953 (vide the writer's article, How and Why Nehru and Abdullah Fell Out": Economic and Political Weekly; January 30, 1999). On May 14, 1954 came a compr ehensive Presidential Order under Article 370. Although it was purported to have been made with the "concurrence" of the State government it drew validity from a resolution of the Constituent Assembly on February 15, 1954 which approved extension to the State of some provisions of the Constitution of India. The Order sought to implement the Delhi Agreement. The Report makes two valid points. Why the haste since the State's Constitution was yet to be framed? Besides, the order in some respects went beyon d the Delhi Agreement. It certainly paved the way for more such Orders - all with "the concurrence of the State Government", each elected moreover in a rigged poll. Ninetyfour of the 97 Entries in the Union List and 26 of the 47 in the Concurrent List were extended to Kashmir as were 260 of the 395 Articles of the Constitution. 

Worse, the State's Constitution was overridden by the Centre's orders. Its basic structure was altered. The head of State elected by the State legislature was replaced by a Governor nominated by the Centre. Article 356 (imposition of President's Rule) wa s applied despite provision in the State's Constitution for Governor's rule (Section 92). This was done on November 21, 1964. 

On November 24, 1966, the Governor replaced the Sadar-i-Riyasat after the State's Constitution had been amended on April 10, 1965 by the 6th Amendment in violation of Section 147 of the Constitution. Section 147 makes itself immune to amendment. But it referred to the Sadar-i-Riyasat and required his assent to constitutional amendments. He was elected by the Assembly [Section 27 (2)]. To replace him by the Centre's nominee was to alter the basic structure. 

Article 370 was used freely not only to amend the Constitution of India but also of the State. On July 23, 1975 an Order was made debarring the State legislature from amending the State Constitution on matters in respect of the Governor, the Election Co mmission and even "the composition" of the Upper House, the Legislative Council. 

It would be legitimate to ask how all this could pass muster when there existed a Supreme Court of India. Three cases it decided tell a sorry tale. In Prem Nath Kaul vs State of J&K, decided in 1959, a Constitution Bench consisting of five judges unanimously held that Article 370 (2) "shows that the Constitution-makers attached great importance to the final decision of the Constituent Assembly, and the continuance of the exercise of powers conferred on the Parliament and the President by t he relevant temporary provision of Article 370 (1) is made conditional on the final approval by the said Constituent Assembly in the said matters". It referred to Clause 3 and said that "the proviso to Clause (3) also emphasises the importance whi ch was attached to the final decision of Constituent Assembly of Kashmir in regard to the relevant matters covered by Article 370". The court ruled that "the Constitution-makers were obviously anxious that the said relationship should be finally d etermined by the Constituent Assembly of the State itself." 

But, in 1968, in Sampat Prakash vs the State of J&K, another Bench ruled to the contrary without even referring to the 1959 case. Justice M. Hidayatullah sat on both Benches. The court held that Article 370 can still be used to make orders thereunder despite the fact that the State's Constituent Assembly had ceased to exist. 

FOUR BASIC flaws stand out in the judgment. 

  • First, the Attorney-General cited Ayyangar's speech only on the India-Pakistan war of 1947, the entanglement with the United Nations and the conditions in the State. On this basis, the court said, in 1968, that "the situation that existed when this Article was incorporated in the Constitution has not materially altered," 21 years later. It ignored completely Ayyangar's exposition of Article 370 itself; fundamentally, that the Constituent Assembly of Kashmir al one had the final say. 

  • Secondly, it brushed aside Article 370 (2) which lays down this condition, and said that it spoke of "concurrence given by the Government of State before the Constituent Assembly was convened and makes no mention at all of the completion" of its work or its dissolution.The supreme power of the State's Constituent Assembly to ratify any change, or refuse to do so, was clearly indicated. Clause (3) on the cessation of Article 370 makes it clearer still. But the court picked on this clause to hold that since the Assembly had made no recommendation that Article 370 be abrogated, it should continue. It, surely, does not follow that after that body dispersed the Union acquired the power to amass powers by invoking Article 370 when the decisive ratificatory body was gone.

  •  Thirdly, the Supreme Court totally overlooked the fact that on its interpretation, Article 370 can be abused by collusive State and Central Governments to override the State's Constitution and reduce the guarantees to naught. Lastly, the court misconstru ed the State Constituent Assembly's recommendation of November 17, 1952, referred to earlier, which merely defined in an explanation "the Government of the State". To the court this meant that the Assembly had "expressed its agreement to the continued op eration of this Article by making a recommendation that it should be operative with this modification only." It had in fact made no such recommendation. The Explanation said no more than that "for the purposes of this Article, the Government of the State means..." It does not, and indeed, cannot remove the limitations on the Central Government's power to concurrence imposed by Clause (2); namely ratification by the Constituent Assembly.
The court laid down no limit whatever whether as regards the time or the content. "We must give the widest effect to the meaning of the word 'modification' used in Article 370 (1)". The net result of this ruling was to give a carte blanche to the Government of India to extend to Kashmir such of the provisions of the Constitution of India as it pleased. 

In 1972, in Mohammed Maqbool Damnoo vs the State of J & K, another Bench blew sky high the tortuous meaning given to the Explanation. It was a definition which had become "otiose". But this Bench also did not refer to the 1959 ruling. Cases there are, albeit rare, when courts have overlooked a precedent. But that is when there is a plethora of them. Article 370 gave rise only to three cases. The first was studiously ignored in both that followed. The court found no difference between an elected S adar and an appointed Governor. "There is no question of such a change being one in the character of that government from a democratic to a non-democratic system." If the Constitution of India is amended to empower the Prime Minister to nominate the Pres ident as Sri Lanka's 1972 Constitution did - would it make no difference to its democratic character, pray? To this Bench "the essential feature" of Article 370 (1) (b) and (d) is "the necessity of the concurrence of the State Government", not the Consti tuent Assembly. This case was decided before the Supreme Court formulated in 1973 the doctrine of the unamendable basic structure of the Constitution. 

GIVEN their record, whenever Kashmir is involved, how can anyone ask Kashmiris to welcome Union institutions (such as the Election Commission) with warmth? 

Sheikh Abdullah had no cards to play when he concluded an Accord with Indira Gandhi and became Chief Minister on February 24, 1975. At the outset, on August 23, 1974, he had written to G. Parthasarathy: "I hope that I have made it abundantly clear to you that I can assume office only on the basis of the position as it existed on August 8, 1953." Judgment on the changes since "will be deferred until the newly elected Assembly comes into being". On November 13, 1974, G.P. and M.A. Beg signed "agreed concl usions" - Article 370 remained; so did the residuary powers of legislation (except in regard to anti-national acts); Constitutional provisions extended with changes can be "altered or repealed"; the State could review Central laws on specified topics (we lfare, culture, and so on) counting on the Centre's "sympathetic consideration"; a new bar on amendment to the State Constitution regarding the Governor and the E.C. Differences on "nomenclature" of the Governor and Chief Minister were "remitted to the p rincipals". Differences persisted on the E.C., Article 356 and other points. On November 25, the Sheikh sought a meeting with Prime Minister Indira Gandhi. Her reply not only expressed doubt on the usefulness of talks but also on his commitment to "the b asic features of the State's Constitution" and to "the democratic functioning" of the government. Hurt, he wrote back ending the parleys. They met at Pahalgam. An exchange of letters, on February 12, 1975, clinched the deal on the basis of the Agreed Con clusions. 

This was a political accord between an individual, however eminent, and the Government, like the Punjab Accord (July 24, 1985); the Assam Accord (August 15, 1985); the Nagaland Accord (November 11, 1975); and the Mizoram Accord (June 30, 1986) - e ach between the government and the opposition. It cannot override Article 370; still less sanctify Constitutional abuse. It bound the Sheikh alone and only until 1977. 

This was explicitly an accord on "political cooperation between us", as Indira Gandhi wrote (December 16, 1974). On February 12, 1975, Abdullah recorded that it provided "a good basis for my cooperation at the political level". In Parliament on March 3, 1975 she called it a "new political understanding". He was made Chief Minister on February 24, backed by the Congress' majority in the Assembly and on the understanding of a fresh election soon. Sheikh Abdullah's memoirs Aatish-e-Chinar (Urdu) rec ord her backtracking on the pledge and the Congress' perfidy in March 1977 when she lost the Lok Sabha elections. It withdrew support and staked a claim to form a government. Governor's Rule was imposed. The Sheikh's National Conference won the elections with a resounding majority on the pledge to restore Jammu and Kashmir's autonomy, which was also Farooq's pledge in 1996. The 1975 accord had collapsed. 

It was, I can reveal, based on gross error. The Agreed Conclusions said (Para 3): "But provisions of the Constitution already applied to the State of J&K without adaptation or modification are unalterable." This preposterous assertion was made in the tee th of the Sampat Prakash case. One order can always be rescinded by another. All the orders since 1954 can be revoked; they are a nullity anyway. Beg was precariously ill and relied on advice which GP's "expert" had given him. He was one S. Balakr ishnan whom R.Venkataraman refers to as "Constitutional Adviser in the Home Ministry" in his memoirs. It is no disrespect to point out that issues of such complexity and consequence are for counsel's opinion; not from a solicitor, still less a bureaucrat even if he had read the law. Even the Law Secretary would have insisted on the Attorney-General's opinion. Amazed at what Beg had told me in May 1975, I pursued the matter and eventually met Balakrishnan in 1987. He confirmed that he had, indeed, given such advice. It was palpably wrong. The 1975 Accord is worse than useless. It is harmful to the State's rights and interests. It has neither legal efficacy nor moral worth. 

Source-- Frontline

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Sudan's Secession Crisis


 Can South Part with North without a war ?


Under the Comprehensive Peace Agreement, the 2005 deal that ended the lengthy civil war between the north and the south of Sudan, voters in the south are supposed to vote on January 9, 2011, to decide whether their region should secede and form the world's newest country. 

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The civil war, which lasted 22 years and during which an estimated 2.5 million southerners died, was fought over several issues: the central government's long-standing neglect of Sudan's periphery; the excessive concentration of jobs, wealth, and public services in the region known as the Arab triangle, along the northern part of the Nile River valley; the government's brutal attempts to impose Arab culture and Islam on the south, where Christianity and traditional religions prevail; its persistent refusal to grant the south any autonomy (except for a brief period in the 1970s); and its exploitation of the south's resources, particularly its oil, to fill government coffers. 

The Comprehensive Peace Agreement, which was signed by Omar al-Bashir, the president of Sudan, and John Garang, the leader of the southern rebellion, who was killed in a helicopter crash soon after the deal, was intended to correct some of these problems. It gave the south its own semiautonomous government and an independent standing army and required the upcoming referendum on secession. But now Khartoum's stalling tactics are threatening to delay the vote, with potentially disastrous consequences.

                          India and Sudan
Indo-Sudanese relations have always been characterized as longstanding, close, and friendly, even since the early development stages of their countries. The two nations established diplomatic relations shortly after India became known as one of the first Asian countries to recognize the newly independent African country. India and Sudan also share geographic and historical similarities, as well as economic interests. Both countries are former British colonies, and remotely border Saudi Arabia by means of a body of water. India and Sudan continue to have cordial relations, despite issues such as India's close relationship with Israel, India's solidarity with Egypt over border issues with Sudan, and Sudan's intimate bonds with Pakistan and Bangladesh. 

India had also contributed some troops as United Nations peacekeeping force in Darfur.



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