The Telegraph
Thursday , May 17 , 2012
Since 1st March, 1999
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It has been reported that the prime minister, Manmohan Singh, has “put in place the full set of officials who will support his desire to settle the Siachen dispute” with Pakistan. Apparently, Siachen remains a “problem” owing to refusal of successive army chiefs — from A.S.Vaidya to V.K. Singh — to support what they perceive to be a major retreat from the line of actual control that would lead to the shrinking and changing of India’s border. Siachen, it has often been said, was “occupied” by India since 1984. The most sensational aspect of the report harps on the fact that Bikram Singh, the army chief-designate, is expected to lead the reversal of the army’s position in order to help the prime minister achieve his dream of attaining peace with Pakistan.

Any proposed change leading to the retreat of the Indian garrison from Siachen would require a fresh examination of the move through the prism of the Constitution and of the Parliament to ensure that the United Progressive Alliance government does not create a fresh — and avoidable — controversy.

Let us therefore analyze the contemplated ‘Siachen withdrawal’ in the light of the Constitutional provisions. Article 1(1) of the Constitution says, “India, that is Bharat, shall be a Union of States”. Jammu and Kashmir, Siachen falls under its territory, is one of the 28 states that constitute the “membership of the Union and the Territory of India”. Significantly, Article 1(3)(c) clearly stipulates that “The territory of India shall comprise”, amongst other things, “such other territories as may be acquired”. This means that the Constitution is transparent about ‘acquisition’ of ‘foreign territory’ should the situation so demand, thereby turning it into a part of India.

Since Jammu and Kashmir is a part of India, Siachen too becomes integral to the country. Hence descriptions of Siachen being “occupied” by India automatically stand null and void. Some simple questions need to be asked in this context. What is the official, legal and diplomatic position of the government of India so far as geographical, political and physical maps are concerned? Does the government recognize or allow any map from any quarter that includes a ‘cartographic aggression or error’? Has it ever tolerated any depiction of Jammu and Kashmir as ‘divided territory’? Are law- enforcement officials in charge of the import of books and maps allowed to clear such distorted maps? Then why this brazen contradiction between theory — the banning and seizing of books, maps and atlases — and practice — the proposal to withdraw guards from one’s own territory? There is no doubt that Siachen is a high-altitude post. But then the nation’s army is maintained to guard such difficult locations.

Let us now go back to Article 3 of the Constitution which states that “Parliament may by law (a) form a new State…; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; (e) alter the name of any State”. In short, only Parliament can tinker with the boundaries, borders and the shape and size of a state, thereby implying that neither the government of the day nor the head of the government can suo motu take away the right, privilege and power of the Parliament on this issue. Retreating from one’s own territory, even if done in good faith and under an ‘honourable’ bilateral agreement, would amount to altering the boundaries of the state.

There are several complexities that need to be addressed. Would a retreat from Siachen be an ‘internal adjustment’ or will it be done under a ‘treaty? If it is an ‘internal adjustment’, inter se of the territories of the constituent states of India, then it would fall under Article 3. But the five Acts specified in Article 3 cannot be implemented without the sanction of the Parliament, even if it involved the execution of a treaty. However, if Siachen is considered to be the ‘settlement of a boundary dispute’, then it cannot be a ‘cession of territory’, thereby nullifying the principle of amendment of the Constitution involving a cession of a part of the territory of India in favour of a foreign state.

Therefore the proposal needs to be clarified. As Siachen falls in Jammu and Kashmir, Article 3 has a special applicability — “Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State”. The inherent implication, therefore, emanates from the name of the state — Jammu and Kashmir. Though Jammu and Kashmir is a state and forms a part of the territory of India, under Article 3 it would be possible for the Indian Parliament to increase or diminish the area thereof, to “alter its name or boundaries in the manner provided in Articles 3-4 only if the Legislature of Jammu and Kashmir consents”. This is where the status of Jammu and Kashmir differs markedly from that of other states. In the case of other states, only the “views” of the legislatures are “ascertained” by the president before recommending the introduction of a bill relating to these matters. But in the case of Jammu and Kashmir, no such bill can be introduced in Parliament unless there is consent from the legislature of that state. The Constitutional definition of Parliament is encapsulated in Article 79: “There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People”. Any hasty action or decision in this respect will not be conducive to the present government’s smooth functioning.

The Siachen issue is certainly not what it looks like today. It could develop into yet another crisis in the future, especially when it is viewed from the angle of constitutional provisions and that of law. So far, we have witnessed a tussle between military men and the civilian leadership. But it would be unwise to separate the constitutional and legal angles pertaining to issues like ‘borders, boundaries, the line of control, frontier’ and so on in this context.

Finally, Siachen’s tactically advantageous location on high ground cannot be ignored by any professional soldier worth his salt. Siachen is a part of Jammu and Kashmir, which, in turn, is a part of India. Siachen was retrieved in 1984 when a Congress government was in power at the Centre. Adopting a new position on Siachen by the same party, albeit under a different leader, may not be a prudent step.