Jammu & Kashmir: Noorani worse than Justice Sageer Ahmed
by Hari Om on 12 Feb 2010 6 Comments

Noted legal luminary AG Noorani has once again received valuable space from a reputed magazine (Frontline) to launch a scathing attack on integrationists and plead for Kashmiri separatists and communalists. His latest anti-India essay is on the controversial Justice Sageer Ahmed report on Centre-State Relations; his outrageous essay is nothing but a manifestation of his highly communal approach towards India, as also towards former Chief Justice of India, AS Anand, former Supreme Court Justice RP Sethi, and former Jammu & Kashmir Governor Jagmohan. It is also a scathing attack on the chairman of the fifth Working Group, Justice Sageer Ahmed.


Noorani has attacked Justice Anand because Justice Sageer Ahmed studied the formers’ book on the constitution history of Jammu & Kashmir, “drew extensively on (his) book” and based some of his recommendations on the basis of that study. Justice Anand opposed the autonomy demand and rejected the idea of the state going out of the Indian constitutional framework; hence Noorani’s attack on Justice Ahmed for using that work.


Noorani has further attacked Justice Sageer for studying Justice RP Sethi’s book on the constitutional history of Jammu & Kashmir. Justice Sethi’s book, like Justice Anand’s book, is also anti-autonomy, anti-Kashmiri separatists and rank communalists. Hence Noorani has criticised Justice Sageer for basing recommendations on those known for “hostility to Kashmir’s autonomy”.


Thus Noorani condemns Justice Sageer Ahmed because the latter did not condemn what the jurist calls the “Centre’s old and discredited stand” and did not “censure” Jagmohan who “destroyed the state’s residuary powers”. It was in the reign of the former Governor in 1988 that an “entry in the Union List, which did not pertain to the three items, namely, Defence, External Affairs and Communication, was extended to the State of Jammu & Kashmir;” this, says Noorani, was an “improper and illegal” act.


The noted lawyers avers that the Justice Sageer Ahmed Report is no more than “a cruel hoax on the people of Kashmir”; because he “shamed even a slippery politician” by “cowardly evading…crucial issues”; because “the quality” of the “discourse” in his report “on the Constitution (has) “disgraced” (even) an undergraduate in Law”; and because his “report provides no assistance to the political parties who cooperated with him and least of all to those who entrusted so responsible a task to him”. He condemns Justice Sageer Ahmed because “evasiveness permeates the report interspersed with support to the Centre’s old and discredited stand”.


Noorani denounces Justice Sageer because the latter did not condemn New Delhi for its policy that led to the “erosion” of (the separatist and communal) Article 370; because Justice Sageer did not condemn Jawaharlal Nehru who, on Nov. 27, 1963, admitted in the Lok Sabha that Article 370 had been eroded, that “this process of gradual erosion of Article 370 is going on” and that “we should allow it to go on”.


He condemns Justice Sageer for not lambasting Gulzari Lal Nanda who, on Dec. 4, 1964 said: “Article 370 could serve as a ‘tunnel in the wall’ between the Centre and Jammu & Kashmir to increase Central power”; because Justice Sageer did not take cognizance of “a provision” that was “negotiated for five months (May-October 1949) to guarantee Jammu & Kashmir’s autonomy was perverted to subvert it” and, “hence, the popular protests which the unionists (read separatists) shared”.


Noorani is enraged that Justice Sageer says that “in order to find out an answer to these questions (relating to Kashmir’s autonomy or separation from India), it would be necessary to delve into the archives of old records which would reveal the historical and political background of Article 370 of the Constitution of India”. He rages that Justice Sageer did not draw extensively on the “debates in the Constituent Assembly and the Nehru-Sheikh Abdullah correspondence, which… provides material enough”.


Noorani is displeased that Justice Sageer did not take the opportunity to condemn Justice M. Hidayatullah who “did not refer to the earlier case (regarding Article 370, viz., Premnath vs. State of J&K, AIR 1959 S.C. 749 - that “ruled in favour of autonomy” - while delivering judgment on Article 370 in another case, Sampat Prakash vs. State of J&K, AIR 1970, 1118, that did not favour autonomy for J&K. Justice Hidayatullah was also on the bench that delivered the first judgment.)


The pro-separatist, pro-Pakistan Noorani berates Justice Sageer for not lashing out at the Congress and the Centre for not implementing the so-called 1952 Delhi Agreement and the 1975 Indira Gandhi-Sheikh Abdullah accord in letter and spirit, and because the judge did not declare as illegal and unconstitutional the 43 Constitution (Application to J&K) Amendment Orders issued by the President of India from time to time with the “concurrence of Jammu & Kashmir Government.”


All these orders were issued under Article 370 with the “concurrence” of successive state governments, some led by Sheikh Abdullah and Farooq Abdullah. New Delhi did not impose any Central law on Jammu & Kashmir against the state’s will, as can be seen from page 63 of the April 1999 State Autonomy Committee Report, prepared by the Farooq Abdullah-led government.


The report, inter-alia, says: “Successive State Governments had in the past accorded ‘concurrence’ for various reasons…” Noorani describes the State Autonomy Committee Report as “an excellently documented expose of the Centre’s abuse of Article 370”, though he rebukes those, including present Finance Minister Abdul Rahim Rather, for “omitting the external dimension” (read Pakistani dimension).


Noorani has suppressed this important truth to keep people in the dark about the role of successive state governments in extending various Central laws to the state; he does not present an accurate picture about the 1952 Delhi Agreement or the 1975 Accord, but suppresses hard facts to mislead public opinion, policy-planners in New Delhi, and the media.


Noorani conceals that there was no 1952 Delhi Agreement – a fact acknowledged by Abdul Rahim Rather in the presence of Chief Minister Farooq Abdullah and his Cabinet Ministers and most MLAs, including present Political Advisor to Chief Minister Omar Abdullah, Devendra Singh Rana. AR Rather admitted this during a seminar on autonomy in Srinagar when this writer asserted that there was no written agreement called the 1952 Delhi Agreement and what actually existed were statements by Jawaharlal Nehru in the Lok Sabha on July 24, 1952 and in the Rajya Sabha on August 5, 1953, and by Sheikh Abdullah in the Constituent Assembly of Jammu & Kashmir on August 11, 1952. The then Director Information KB Jandial was present in the seminar hall, as was CM Farooq Abdullah, among others. 


This writer was invited to the seminar despite awareness of his bitter opposition to the kind of autonomy the National Conference was demanding; this writer promised to “start writing in favour of the National Conference and against New Delhi in case Farooq Abdullah or any other National Conference leader would oblige this writer by providing to him a copy of the signed agreement”.


In response to this Rather said: “Yes, there is no signed Delhi agreement and it was a mere statement” – which embarrassed the Chief Minister and National Conference Ministers and MLAs. Praful Bidwai was chairing the last session of the two-day-long seminar on autonomy. The situation was so tense when this writer was making his presentation that Bidwai had to tell Farooq Abdullah and others “you attacked Professor Hari Om right and left for two days, now listen to him” – this produced the desired result. 


Noorani is reputed to be a leading constitutional lawyer. He claims that whatever he writes is on the basis of credible and authentic information. But he only reveals what suits him and is consistent with his perverse ideology which helps separatists and communalists and Pakistan. Thus he not only suppressed facts about the Delhi agreement, but also the action on the 1975 Accord.


He denounced Justice Sageer for failure to reflect on the implementation of the 1975 Accord, using filthy language against the judge for not condemning Indira Gandhi for withdrawing support to the Sheikh Abdullah-led government in 1977. Congress withdrew support to Sheikh Abdullah because he was indulging in anti-national and communal activities.


Indira Gandhi had handed the state government to Sheikh Abdullah on a platter in 1975 under the 1975 Accord, against the wishes of the local Congress. The Sheikh was not even a member of the Legislative Assembly or Legislative Council. His Plebiscite Front did not have a single member in either House at the time.


Noorani should have denounced the National Conference leaders and Farooq Abdullah-appointed members of the State Autonomy Committee because they did not even once in the 180-page report use the words Indira Gandhi-Sheikh Abdullah Accord of 1975. He should have taken the members of the State Autonomy Committee to task for not even mentioning the appointment by Sheikh Abdullah of a high-powered three-member Cabinet sub-committee under clause 3 of the 1975 Accord. This Cabinet sub-committee was to look into the implications of Central laws extended to the state between August 9, 1953 and February 1975 and recommend withdrawal of those Central laws which, in their opinion, were considered harmful for the state’s special status.


Clause 3 of the 1975 Accord read: “Where any provision of the Constitution of India had been applied to the State of Jammu & Kashmir with adaptations and modifications, such adaptations and modifications can be altered or repealed by an order of the President under Article 370, each individual proposal in this behalf being considered on its merits; but the provisions of the Constitution of India already applied to the State of Jammu & Kashmir without adaptations or modifications are unalterable”.


The State Autonomy Committee report said about the 1975 Accord and the recommendations of the Cabinet sub-committee: “During the negotiations, an agonizing reappraisal of the sordid events of 1953 (Sheikh was dismissed and arrested on August 9, 1953 under the charge of sedition) and onwards up to 1975 - a long period of 22 years was undertaken. There were people who advocated that not only must the clock be turned back but it might be necessary to replace it if the purpose was to stem the rot that had set in after the arrest of Sheikh Sahib” (Autonomy Committee Report, p. 45).


The Cabinet sub-committee, headed by Deputy Chief Minister DD Thakur, submitted two contradictory reports, one by Thakur and the other by the Sheikh’s son-in-law GM Shah and Ghulam Nabi Kochak. The Thakur report recommended that no Central law should be withdrawn because all had benefited the people of the state. “Needles of the clock cannot be turned back” was the upshot of his argument. Shah-Kochak recommended wholesale withdrawal of Central laws and institutions on the ground that extension of Central laws to the state deprived it of the special status it enjoyed under Article 370.


The Sheikh, an ardent believer in the concept of greater autonomy virtually bordering on sovereignty, accepted the Thakur report in full!!!


That is why the members of the State Autonomy Committee did not refer to the 1975 Accord and the Cabinet sub-committee reports!!! They did it to mislead public opinion and policy-planners in New Delhi and strengthen their case for greater autonomy. Noorani adopted a similar approach for the same purpose. This eminent jurist has been denouncing India and its attitude towards Kashmir consistently since 1954.


Noorani went berserk denouncing Justice Sageer Ahmed. He foolishly avers that New Delhi could not extend a single Central law after the J&K Constituent Assembly adopted a new state constitution and after the said constituent assembly ceased to exist. What a laughable and childish formulation!


Does not the redoubtable jurist know that a Constituent Assembly is not a permanent institution and ceases to function the moment it prepares and adopts a constitution? Thereafter it is the Assembly or Parliament that exercises the amending power. Thus, the Indian Constituent Assembly prepared and adopted a constitution which was enforced on January 26, 1951; this constitution has since been amended more than 95 times in response to the needs of the time.


Noorani is being ridiculous when he argues that the J&K legislature does not have the power to endorse extension of Central laws to the state. He dubs Abdul Rahim Rather of the National Conference, Muzzaffar Hussain Baig of the People’s Democratic Party and Saif-ud-Din Soz of the Congress as “unionists”; they were all members of the Working group on Centre-State Relations. 


The “unionists” charge is not true. AR Rather and the NC stand for greater autonomy or for a dispensation outside the constitutional framework of India, that is, semi-independence. Baig and the PDP stand for quasi-independence and a mechanism that makes J&K an independent economic zone; introduces dual currency (Indian and Pakistani); renders borders irrelevant and porous; demilitarizes J&K; keeps the state out of the purview of any anti-terror laws; empowers Pakistan to exercise co-equal powers with India in Indian J&K (sharing of sovereignty or intra-state measures); and practically severs all relations between the state and New Delhi.


To call JKPCC chief Saif-ud-Din Soz a “unionist” is a cruel joke. Though in Congress since 1998, he has never talked of the state’s full merger with India. His views are more or less similar to those of the National Conference and PDP leaders. He publicly favours autonomy, and has gone to the extent of saying there is no harm if the self-rule doctrine is considered. He and Congress MLC Abdul Ghani Vakil are the only Congress leaders in the state to openly and unambiguously welcome the Justice Sageer Ahmed report.


It appears that the Congress high command, like a section of the BJP, has made up its mind to ensure Kashmir’s separation from India and give dangerous respectability to the politics based on the pernicious two-nation theory. Otherwise, why is the Congress high command and Congress-led UPA indifferent to the activities of the JKPCC president?


Noorani has not written a word about the age-old complaint in Jammu and Ladakh that these two historically, ethnically, geographically, economically, culturally and politically distinct regions have been consistently discriminated against. He is silent on issues related to refugees from West Pakistan and internally-displaced Kashmiri Hindus, refugees from Pakistan-occupied-Jammu & Kashmir (POJK) and border migrants of 1965 and 1971, as well as issues confronting the extremely backward Gujjar and Bakerwal Muslims. But he wants withdrawal of all Central laws and institutions extended to J&K after August 9, 1953.


Noorani seeks exclusion of J&K from the constitutional and political organization of India. He wants to link the political future of non-Muslim minorities in the state with the separatist, communal and highly biased Kashmiri Muslim leadership. He wants the Union Government to apologize for “crimes it has committed in Kashmir”. He wants the Centre to apply the self-rule doctrine in its original form so that J&K becomes independent for all practical purposes and Pakistan accomplishes what it has been striving to accomplish since 1947, through regular conventional wars as well as through the ongoing low-intensity proxy war which has consumed more lives than those lost in the wars of 1947-48, 1965, 1971 and 1999.


In short, the constitutional expert wants India to quit J&K forthwith; wants Kashmiri Muslim identity politics to flourish; wants Talibanization of the state’s polity, society and economy; wants non-Kashmiri Muslim minorities to be third grade subjects; wants another partition of India on the basis of the pernicious two-nation theory; wants the Government of India to reward those who have been killing our valiant soldiers and punish those with no blood on their hands; and wants Pakistan’s presence in J&K so it can avenge the humiliations and defeats suffered at the hands of the brave Indian Army, particularly in 1971. 


It is disgusting that a section of media allows the likes of Noorani to pour venom on India and Indian laws, preach sedition and promote the cause of foreign countries. It is disturbing that Indian authorities do not rein in such rebels who roam about freely as distinguished and respectable peace-mongers, trouble-shooters and secularists. Enough is enough. New Delhi must behave and discharge its constitutional obligations by taking on the likes of Noorani. The sooner it does the better.


The author is Chair Professor, Gulab Singh Chair, Jammu University, Jammu

User Comments Post a Comment
Comments are free. However, comments that include profanity or personal attacks or other inappropriate material will be removed from the site. Readers may report abuse at  editorvijayvaani@gmail.com
Post a Comment

Back to Top