Hindu dharma is implicitly at odds with monotheistic intolerance. What is happening in India is a new historical awakening... Indian intellectuals, who want to be secure in their liberal beliefs, may not understand what is going on. But every other Indian knows precisely what is happening: deep down he knows that a larger response is emerging even if at times this response appears in his eyes to be threatening.

Wednesday, August 31, 2005

India is only half sovereign

Prafull Goradia

The US declaration of Independence in 1776 was the first document to enunciate sovereignty as an essential element of the new state. French Constitution of 1791 stated: "Sovereignty is one, indivisible, unalienable and imprescriptible; it belongs to the nation; no group can attribute sovereignty to itself nor can an individual arrogate it to himself." The concept was first thought of by Jean Bodin of the 16th century France to signal the progress from feudalism to nationalism.

The incident of two Naga groups - ANSAM and NSF - blockading Manipur by choking NH-39 and NH-53 in the State is reminiscent of a siege undertaken in war. Instead of calling in the Army to disperse the involved groups and restoring the normal passages to and fro Manipur, the Government airlifted supplies. Home Secretary VK Duggal is reported (The Statesman, August 18) to have said in Manipur on August 17 that it was the State's internal matter. This was rather like the US Air Force reaching West Berlin in 1961 when the Soviet Union had blockaded the city. In this incident, three independent countries were involved - Federal Republic of Germany, the US and the USSR. In the Naga-Manipur episode only one country - and therefore a domestic problem - was concerned.

On Independence Day, the Naxalites killed persons including an Andhra Pradesh MLA C Narsi Reddy. Andhra Pradesh is not the only State infested with extremists. In the last week of July, seven people were killed in Bastar, Chhattisgarh, by the Maoists. The insurgency has been rising steadily over the last decade and, by now, some 200 districts of the country are affected. In a number of them, even the police has no easy entry to the subdivisional towns. Yet, the Central Government panel appointed to review cases booked under POTA has accused the Andhra Pradesh police of misusing the law.

Recently, Ms Mamata Banerjee had occasion to throw a sheaf of papers at the Deputy Speaker of the Lok Sabha. The reason was her protest at the way delimitation of constituencies was taking place in West Bengal. In a number of constituencies, she had discovered Bangladeshi nationals listed in Indian rolls. It was amazing that foreigners were being enabled to vote in our elections.

What is happening in West Bengal is not accidental as it has been the policy of the Congress and the Left Front to encourage infiltration, and thus expand their vote-bank. Had it not been so, how would the ruling party explain its sponsorship of the IMDT Act in Assam and being unhappy at its having been struck down as ultra vires by the Supreme Court now?

When in April, Maulana Asad Madani pleaded for more privileges for Muslims, Assam Chief Minister Tarun Gogoi had pointed out at the Congress's support for the IMDT Act. Assam was the only State where this law was in force. It was also unique in the world because nowhere did the law place the onus of proving that a suspected infiltrator is really so on the complainant. The alleged person has no responsibility to prove his bona fide. Earlier, the Left Front had said that it was a desirable law and should also be introduced in West Bengal.

The inconsistency in Jammu & Kashmir is equally amazing. Years ago, Parliament had resolved that the whole of Jammu & Kashmir is an integral and unalienable part of India. This included POK. Yet Article 370 of the Constitution continues undeleted. The State has a separate Constitution. A Kashmiri can freely buy property in any part of the country, but non-Kashmiri Indians cannot acquire any such thing in Jammu & Kashmir. Yet the Government expects people to believe that we are a sovereign state.

Meanwhile, the Government experiences no embarrassment in negotiating autonomy in Jammu & Kashmir with all and sundry, including the various factions of the Hurriyat who are separatists. The Government does not mind the Hurriyat leaders from hobnobbing with Pakistani diplomats or with visiting dignitaries from Islamabad. Equally incorrigible is the Government holding talks at home as well as overseas with Naga separatists like Mr T Muivah. A sovereign state would charge every separatist with treason, try him and hang him if proved guilty.

The Congress has always been pro-Muslim. This is clear from the fact that wakfs and Muslim personal law still remain untouched. Collectively, the wakf properties represent the biggest urban landlords in India. The demand for Taj Mahal by the UP Sunni Wakf Board and that for Bibi ka Maqbara at Aurangabad by the Maharashtra Wakf Board is on the ground that these contain qabrs. A sovereign state should nationalise all their properties as they are deemed to belong to Allah who is supreme and much above any country.

Similarly, Muslim personal laws still continue to be sacred and above the purview of the Constitution. Contrary to the Supreme Court's view, the Muslim community now appears to have set up Sharia courts known as Darul Qaza in a number of States to adjudicate on matters concerning marriage, divorce, etc. There are, therefore, two systems of law and justice functioning in the country - one Muslim and the other Indian. In the event there is a conflict between the two, the Muslim version prevails.

The evident conclusion would be that India is a half sovereign state. This concept was innovated by the German jurist on international law, JJ Moser, who lived in the 18th century. India has some attributes of sovereignty like its belonging to the nation and not to any individual; it being also imprescriptible. But between the Sharia and wakf, sovereignty is shared and not absolute. Negotiations with Kashmiri and Naga separatists indicate that it is neither indivisible nor inalienable.

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