NEW DELHI: India has turned down a US suggestion to drop the oath of allegiance to the Indian Constitution for eligibility of candidates to enter he election fray in Jammu and Kashmir.

The suggestion was made through diplomatic channels” with a view to making elections in the trouble torn State “credible,” also to attract elements not accepting the state’s accession to India as a scuttled fact, to participate in the elections.

The prime minister, who is stated to, have been conveyed the United States’ Suggestion, has instead reiterated India’s viewpoint on the finality of ‘the state’s accession, and explained ‘that India’s democratic structure provided opportunity to each and every bona fide voter to join the election in Jammu and Kashmir.

Swearing oath of allegiance to the Constitution and affirmation of India’s Sovereignty was introduced in 1965 by amending the Fifth Schedule of the State Constitution, The amendment, ‘However, did not prevent candidates, not subscribing to the finality of the Slate’s access belonging to Jamaat Islami  from contesting the elections, and some of them Petting elected to the state assembly.

A prominent separatists, Syed Ali Shah Geelani, who is also leader of the All Parties’ Hurriyat Conference (APHC), which is spearheading the drive against the proposed elections in Jammu and Kashmir, was twice ‘elected to the assembly, along with his APHC colleague, Mr. A.G. Lone, after swearing allegiance to the Constitution of India and affirming faith in India’s sovereignty over Jammu and Kashmir.

Meanwhile, an interesting development which has come to light in the course of ongoing discussion over the Center’s “autonomy package” for the state is that after the Indira Sheikh accord of February 1975, the state assembly had virtually abdicated its right to remake or revise central laws applied to the state.

Earlier, during the regime of late G.M. Sadiq, the state Constitution was amended in 1963, changing the designation of Sadar e Riyasat  and state prime minister to that of governor and chief minister.

While it is felt that change in the nomenclature may not prove difficult in respect of the state chief minister, renaming governor as  Sadar E Riyasat’ may prove a difficult exercise, Under the original section of the state Constitution the ‘Sadar e Riyasat’ had to be a permanent state subject and an elected head.

Reverting to the old nomenclature of the state’s governor and the chief minister, according to some constitutional experts, would require an amendment to the state Constitution, an exercise which can be conducted only after the state assembly comes into being consequent to holding elections.

In this respect, an agreement on the issue before election, as demanded by Dr. Farooq Abdullah, will not have any immediate effect.

What is, however, being lost sight of is the agreement arrived at in the course of Beg Part has earthy talks which culminated in the Indira Sheikh accord. The late Kashmir leader had agreed to the application of 97th entry of the Seventh Schedule of the Indian Constitution. The entry provides that Parliament would continue to make laws for Jammu and Kashmir, relating to prevention of activities towards disclaiming or questioning, sovereignty and territorial integrity of Indian or bring about secession of any territory of India.

From May 1954 onwards, after the declaration of presidential order on 1954 agreement, which also contained the proposal” for” Delhi Agreement” of 1952, which had remained unsigned following dismissal of late Sheikh Mohammad Abdullah in August 1953, the President of India had been specifying subjects over which Parliament could make laws for Jammu and Kashmir with concurrence of the state government. There is as such no provision in the Constitution of India or the states own Constitution, empowering either of the two to recommend revocation of the central laws applied to the state.

Therefore, any revision of central laws applied to the state can be undertaken through a presidential order, but only with concurrence and consultation of an elected government, which comes into existence after elections.

Article extracted from this publication >> December 1, 1995