Jammu & Kashmir: Noorani worse than Justice Sageer Ahmed

by Prof Hari Om

February 2010 

Prof. Hari Om“Noted legal luminary” A G Noorani has once again been given invaluable space by a magazine of repute (Frontline) to launch a scathing attack on the integrationists and plead the case of Kashmiri separatists and communalists. His latest anti-India essay is on the already-under-attack Justice Sageer Ahmed’s report on the Centre-State Relations and what his outrageous essay contains is nothing but a manifestation of his highly communal approach towards India, as also towards the former Chief Justice of India, A S Anand, former Justice of the Supreme Court of India, Justice R P Sethi, and former Jammu & Kashmir Governor, Jagmohan. It is also a scathing attack on the chairman of the fifth Working Group, Justice Sageer Ahmed.

A. G. Noorani has attacked Justice Anand because Justice Sageer Ahmed studied the Justice Anand’s 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. Noorani criticized Justice Sageer because he based some of his recommendation on a study that opposes the autonomy demand or that rejects the idea of the state going out of the Indian constitutional framework.

A G Noorani has attacked Justice Sageer Ahmed because he not only studied Justice Anand’s anti-autonomy book and based some of his recommendation on that but also because he studied Justice R P Sethi’s book on the constitutional history of Jammu & Kashmir as well. He denounced Justice Sageer Ahmed, saying he committed a grave mistake by studying R P Sethi’s book which, like Justice Anand’s book, is also anti-autonomy or also anti-Kashmiri separatists and rank communalists.  He condemned Justice Sageer Ahmed because he based some of his recommendation on whom known for their “hostility to Kashmir’s autonomy”.

Jinnah in A G Noorani condemned Justice Sageer Ahmed unheard because the latter did not condemn what he shamelessly called the “Centre’s old and discredited stand” and because he did not “censure” Jagmohan who “destroyed the state’s residuary powers”. He condemned Justice Sageer Ahmed because the latter did not condemn the former Governor during whose rule in 1988 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” which, according to Noorani, was an “improper and illegal” act.

A. G. Noorani condemned Justice Sageer Ahmed because his 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 condemned Justice Sageer Ahmed because, according to Jinnah in him, “evasiveness permeates the report interspersed with support to the Cente’s old and discredited stand”.

A. G. Noorani denounced Justice Sageer Ahmed 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 Ahmed did not condemn Jawaharlal Nehru who, on November 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 condemned Justice Sageer Ahmed because the latter did not condemn Gulzari Lal Nanda who on December 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 Ahmed did not take cognizance of what the Jinnah in A G Noorani says “a provision” that, according to him, 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”.

A. G. Noorani denounced Justice Sageer Ahmed because the latter wrote in his report that “in order to find out an answer to these questions (issues relating to Kashmir’s autonomy or Kashmir’s 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 condemned Justice Sageer Ahmed because he did not draw extensively on the “debates in the Constituent Assembly and the Nehru-Sheikh Abdullah correspondence, which…provides material enough”.

Noorani condemned Justice Sageer Ahmed because the chairman of the Working Group on Centre-State Relations did not condemn Justice M. Hidayatullah, who “did not refer to the earlier case (in the Supreme Court regarding Article 370 – 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 Jammu & Kashmir. (Justice Hidayatullah was also on the bench that delivered the first judgment.)

Pro-separatist, pro-Pakistan and highly communal Noorani denounced Justice Sageer Ahmed because he did not condemn the Congress and its government at the Centre which did not implement the so-called 1952 Delhi agreement and the 1975 Indira Gandhi-Sheikh Abdullah accord in letter and spirit, as also because Justice Sageer Ahmed did not declare as illegal and unconstitutional the otherwise Constitutional 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.

It needs to be noted that all these orders were issued under Article 370 and with the “concurrence” of the successive governments in the state, some of which were led by none otherthan Sheikh Abdullah and his son Farooq Abdullah. That New Delhi did not impose any Central law on Jammu & Kashmir against the state’s will could be seen from page number 63 of April 1999 State Autonomy Committee Report – report got prepared by none other than Farooq Abdullah-led government.

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

Jinnah in Noorani not only suppressed this important fact in order to keep the people in the dark about the role of the successive governments in the state as far as the extension of various Central laws to the state was concerned, he also did not present an accurate picture of facts about what he called the 1952 Delhi agreement, as also about the 1975 Accord. He deliberately suppressed the hard facts in order to mislead public opinion, policy-planners in New Delhi and the otherwise ever-alert media.

Jinnah in Noorani did not tell the people that there existed no such agreement as the 1952 Delhi agreement – a fact acknowledged by none other than Abdul Rahim Rather in the presence of Chief Minister Farooq Abdullah and all his Cabinet Ministers as well as almost all the MLAs, including the present political Advisor to Chief Minister Omar Abdullah, Devendra Singh Rana. A. R. Rather acknowledged this fact during a seminar on autonomy in Srinagar when this writer told all those present in the seminar, including the then Chief Minister Farooq Abdullah, that there existed no such written agreement as the 1952 Delhi Agreement and that what actually existed were statements made 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 K B Jandial was also present in the seminar hall. 

It needs to be underlined that this writer, who had been invited to participate in the seminar knowing it full well that he was bitterly opposed to the kind of autonomy the National Conference had been consistently demanding, had held out a solemn commitment that “he would 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”. It was in response to this that Rather said: “Yes, there is no signed Delhi agreement and it was a mere statement” – something which really embarrassed the Chief Minister and all other National Conference Ministers and MLAs, including the then young minister Ajay Sadhotra. Praful Bidwai was then chairing the last session of the two-day-long seminar on autonomy. The situation had turned so tense when this writer was making his presentation that Bidwai had to tell Farooq Abdullah and others “you attacked Professor Hari Om from right and left for two days, now listen to him” – the presidential intervention produced the desired result. 

Noorani claims that he is a leading constitutional lawyer. He also claims that whatever he writes he writes on the basis of credible and authentic information. He is a liar. He only reveals things which suit him and which are consistent with his perverted ideology and which help the separatists and communalists and suit Pakistan.

But Jinnah in Noorani not only suppressed this important aspect to mislead public opinion. He also suppressed another truth – action on the 1975 Accord.

He denounced Justice Sageer Ahmed for his failure to reflect on the implementation or otherwise of the 1975 Accord. His denunciation was ill-designed, ill-conceived and communally-motivated. He used filthy language against Justice Sageer Ahmed because he, according to him, did not condemn Indira Gandhi for the reason that her Congress party

withdrew support to the Sheikh Abdullah-led government in 1977. The Congress party withdrew support to the Sheikh Abdullah-led government because the Sheikh had been indulging in anti-national and communal activities.

It bears recalling that Indira Gandhi had handed over to Sheikh Abdullah the State Government on a platter in 1975 itself under the 1975 Accord much against the wishes of the local unit of the Congress party. She took this extraordinary step despite the fact that the Sheikh was neither a member of the Legislative Assembly nor of the Legislative Council. Nor his unpopular and virtually non-existent Plebiscite Front had even a single member in either of the two houses that time.

Jinnah in Noorani should have denounced the National Conference leaders and the Farooq Abdullah-appointed members of the State Autonomy Committee because they did not even once in their 180-page report used the words Indira Gandhi-Sheikh Abdullah Accord of 1975. Noorani should have also taken the members of the State Autonomy Committee to task for the reason that they did not even once in their lengthy report refer to the appointment by Sheikh Abdullah a high-powered three-member Cabinet sub-committee under clause 3 of the 1975 Accord. The task of this Cabinet sub-committee was to look into the implications of the 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”.

It would be only prudent to reproduce here what the State Autonomy Committee report says about the 1975 Accord and the recommendations of the three-member Cabinet sub-committee but without actually naming them. The report says: “During the negotiations, an agonizing reappraisal of the sordid events of 1953 (the 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).

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

It may appear unbelievable but it is a fact that the Sheikh, himself an ardent believer in the concept of greater autonomy, virtually bordering on sovereignty, accepted the Thakur report in full.

That was the reason the members of the State Autonomy Committee did not refer to the 1975 Accord and the three-member Cabinet sub-committee and its contradictory reports. They did it deliberately to mislead public opinion and policy-planners in New Delhi and strengthen their case for greater autonomy overlooking the fact that there were, and are, people who knew everything. Jinnah in Noorani also adopted a similar approach for the same purpose. Had he, like the National Conference, revealed the truth or presented an accurate picture of facts, he would not have the audacity to once again demand greater autonomy or the Kashmir’s separation. In other words, he, like the National Conference leaders, is a liar and bluffer. These are not polite words but this writer has no other words in the dictionary to use for this man, who has been denouncing India and its attitude towards Kashmir, particularly since 1954.

Jinnah in Noorani went berserk while denouncing Justice Sageer Ahmed. That he lost his balance of mind and went beyond the confines of the laws that deal with the constitution of constituent assembly and its functions could be seen for his silly statement that New Delhi could not extend a single Central law after the Jammu & Kashmir Constituent Assembly adopted a new Jammu & Kashmir Constitution and after the said constituent assembly ceased to exist.

And, on whose assertion he based his laughable and childish formulation? He based his irrational and highly illogical formulation on the arguments advanced by the members of the State Autonomy Committee, particularly Abdul Rahim Rather, a lawyer. It was on that basis that Jinnah in Noorani lambasted Justice Sageer Ahmed, writing that he “surely knows that the government’s power to accord concurrence was subject to ratification by the Constituent Assembly of Jammu & Kashmir as Clause (2) of Article 370 makes clear and both Gopalaswami Ayyangar (in-charge Kashmir affairs and architect of Article 370) and Sheikh Abdullah emphasized” and that “on page 16 (of Justice Sageer Ahmed’s repot) he (Justice Sageer Ahmed) himself records A. R. Rather’s unanswerable argument that the government’s power to accord concurrence ended once the State’s Constituent Assembly met in 1951 and the Assembly’s ratificatory authority ended on its dissolution in 1956”.

While making such ridiculous and laughable statements in his seditious essay on Justice Sageer Ahmed, Jinnah in Noorani forgot that constituent assembly is not a permanent institution and that it ceases to function the moment it prepares and adopts a constitution. After the adoption of constitution, it is the assembly/parliament or a similar institution that exercises the amending powers. Take, for example, the Indian Constituent Assembly. It prepared and adopted a constitution, which was enforced on January 26, 1951. After it was adopted and implemented, the Parliament amended the Indian Constitution more than 95 times taking into consideration the needs of the people and exigencies of the time.

Did anybody anytime during all these years of the application of the Indian Constitution even once question any of the these amendments saying that it was the prerogative of the Indian Constituent Assembly to give or not to give its concurrence?  No. Because the Indian law-makers, unlike A. G. Noorani, were, and are, not fool. They know the functions of constituent assembly and they also know the functions and powers of the Parliament and the Assembly, which are supreme law-making bodies.

Noorani, undoubtedly, made a fool of himself by taking a cue from Abdul Rahim Rather and suggesting something that has never happened in the constitutional history of the world. But his compulsion was that he could not take a rational view because it didn’t fit in his separatist ideology.

But Jinnah in Noorani not just became a laughing stock and an object of ridicule by saying that Jammu & Kashmir Legislature didn’t have the power to endorse the extension of any Central law to the state. He became an object of contempt and ridicule by terming as “unionists” the Kashmir-based National Conference, People’s Democratic Party and Congress leaders, including Abdul Rahim Rather of National Conference, Muzaffar Hussain Baig of People’s Democratic Party and Saif-ud-Din Soz of Congress party as well. They were also members of the Working group on Centre-State Relations. 

Are the likes of Rather, Baig and Soz “unionists”? No. They are not. While A. R. rather and his party stand for greater autonomy or for a dispensation outside the constitutional framework of India or, to be more exact, for semi-independence, Baig and his party stand not only for the state’s quasi-independence but it also vouches for a mechanism that makes Jammu & Kashmir an independent economic zone; that introduces in the state dual currency (Indian and Pakistani currency); that renders the borders irrelevant and porous; that demilitarizes Jammu & Kashmir; that keeps the state out of the purview of any anti-terror laws; that empowers Pakistan to exercise co-equal powers with India in the Indian Jammu & Kashmir (sharing of sovereignty or intra-state measures); and that practically severs all the relations between the state and New Delhi.

To suggest that JKPCC chief Saif-ud-Din Soz is also a “unionist” would be a cruel joke of the 21st century. Though he has been in the Congress party since 1998, he has at no point of time during all these years talked of the state’s full merger with India. In fact, he has been consistently airing views which are more or less similar to the ones being consistently held by the National Conference and the people’s Democratic Party leaders. He has on occasions more than once publicly expressed himself in favour of autonomy and has even gone to the extent of saying that there is no harm if the self-rule doctrine is also considered. Besides, it is known to everyone that he – apart from another Kashmir-based Congress leader and MLC Abdul Ghani Vakil — is the only Congress leader in Jammu & Kashmir who has openly and unambiguously welcomed the Justice Sageer Ahmed report.

Yes, Rather, Baig and Soz are “unionists”, Noorani-style. It is a different story that the Congress high command has not taken any cognizance of what the JKPCC president has been saying and doing in Jammu & Kashmir to strengthen those demanding autonomy, self-rule, and even freedom from India. It appears that the Congress, like 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 and archaic two-nation theory. How else should one interpret the indifferent attitude of the Congress high command and the Congress-led UPA Government to the activities of the JKPCC president?

What exactly does Jinnah in Noorani want? Noorani, who did not write a single word on 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, as also on the issues related to the 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 the issues confronting the extremely backward Gujjar and Bakerwal Muslims, wants the withdrawal of all the Central laws and institutions extended to Jammu & Kashmir after August 9, 1953.

He wants everyone to condemn Jawaharlal Nehru, Indira Gandhi, Gulzari Lal Nanda, Justice A. S. Anand, Justice R. P. Sethi, Justice Hidayatullah, former Governor Jagmohan and everyone, barring the National Conference, the People’s Democratic Party and the Kashmir-based Congress leaders. Why because all of them contributed to the process of erosion of Article 370; because all of them subverted Article 370 in order to “erode” the “unique identity of Kashmiri Muslims; because  they brought Kashmir practically at par with other regions of the country.  Noorani not only wants the exclusion of Jammu & Kashmir from the constitutional and political organization of India. He also wants to link the political future of the non-Muslim minorities in the state with the separatist, communal and highly biased Kashmiri Muslim leadership. You may put in any amount of effort to find if Noorani has in his seditious essay even once talked of the political aspirations, urges and needs of the non-Kashmiri Muslim minorities, you would come out of the exercise minus everything.

But Noorani is not content with all this. He also wants that the Union Government should apologize for the “crimes it has committed in Kashmir”. Not just that. Noorani, in addition, wants the Union Government to apply the self-rule doctrine in its original form so that Jammu & Kashmir becomes independent for all practical purposes and Pakistan accomplishes what it has been striving to accomplish since 1947 through regular and conventional wars as well as through the ongoing low-intensity proxy war, which has already consumed thousands of lives in the state.

The extent of the loss of lives during the ongoing low-intensity proxy war can be gauged from the fact that it has consumed more lives as compared to the loss the nation suffered during the four Pakistan’s full-scale wars on India in 1947-48, 1965, 1971 and 1999. Noorani, in short, wants liberal India to quit Jammu & Kashmir forthwith; wants the Kashmiri Muslim identity politics to flourish; wants the Talibanization of the state’s polity, society and economy; wants the non-Kashmiri Muslim minorities in the state to lead a life of third grade subjects; wants another partition of India on the basis of the pernicious and out-dated two-nation theory; wants the Government of India to reward those who have been firing on and killing our valiant soldiers and punish those with no blood on their hands because they are irrelevant; and wants Pakistan’s presence in Jammu & Kashmir so that it could avenge all the humiliations and defeats it suffered at the hands of the brave Indian Army, particularly the defeat it suffered in 1971. 

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

I conclude with the comment that no Justice Sageer Ahmed because this writer has already written a comprehensive write-up on him and the nature and implications of the recommendations he has made.