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Unlike British Acts, US Acts often contain exhortatory, as distinct from legislative provisions, writes AG Noorani.

President George W Bush said on December 18 that his signing of the Act on nuclear cooperation with India “does not constitute my adoption of the statements of policy (in Section 103) as US foreign policy. Given the Constitution’s commitment to the presidency of the authority to conduct the nation’s foreign affairs, the executive branch shall construe such policy statements as advisory”. Constitutionally, his stand is right. It is also instructive for those in India who are enamoured of parliamentary resolutions on foreign policy; it is an issue we will face when accords on Kashmir and the boundary dispute with China are concluded.

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Unlike British Acts, on which ours are modelled, US Acts often contain exhortatory, as distinct from legislative, provisions styled as ‘Statements of Policy’, ‘Statement of Purpose’, ‘Declaration’ or ‘Findings’. The Ato-mic Energy Act, 1954, and the nuclear Non-Proliferation Act, 1978, had them, as did the Iran and Libya Sanctions Act, 1996. They do not bind the executive. If this be true of surplusage in Acts signed by the President, it is all the more true of a resolution on foreign policy passed by the legislature in a parliamentary system. English courts have ruled that it does not constitute law. It “has no legal effect outside the walls of Parliament”, SA de Smith, an authority on constitutional law, said. Lack of legal efficacy does not invest it with moral force. A resolution on foreign policy passed under stress or in a wave of chauvinism might so reek of bad sense as to be improper. Its dangers become evident when, in calmer times, demagogues wave it in the face of a government that decides to act sensibly and in the national interest.

British statesmen, accomplished alike in parliamentary practice and the conduct of foreign affairs, spoke scathingly of such resolutions. Addressing the House of Commons on March 4, 1847, on Russia’s annexation of Cracow, Prime Minister Lord John Russell criticised the tabling of “a resolution merely declaratory of an opinion... It has been the custom of the Chamber of Deputies in France annually to protest at the commencement of the session against the acts of the Emperor Nicholas, and to make a declaration in favour of the nationality of Poland. I think that such annual declarations are illusive”. Disraeli   spoke in the same tenor in the House on July 4, 1864. Parliament can criticise or support the government’s foreign policy. It can neither define that policy nor constrict the judgment that belongs to the government.

On November 14, 1962, the Lok Sabha passed a resolution during the war with China which “affirms the firm resolve of the Indian people to drive out the aggressor from the sacred soil of India, however long and hard the struggle may be”. On January 25, 1963, this very House passed a resolution accepting the proposals by the Colombo Powers which envisaged “a peaceful settlement of the Indian-Chinese conflict” after “consolidating the ceasefire”.

In 1967, Parliament enacted the Unlawful Activities (Prevention) Act. A law overrides that and all resolutions passed since. Cession of territory and resolution of boundary disputes are sovereign powers which are inherent in every State. This Act permits cession of territory by treaty. It unconstitutionally penalises a citizen who advocates cession or questions the “territorial integrity of India”, but wisely permits the State to do so through its officials. Section 13(2) protects them by a blanket exemption if they hold negotiations or conclude “any treaty, agreement or convention” on behalf of the government.

On Kashmir, there are two resolutions contradictory in spirit if not in letter. A joint statement of all parties on March 7, 1990, recalled the guarantees to the people of Kashmir of “complete protection of their cultural and religious identity and full expression of their aspirations”. It was signed by Prime Minister VP Singh, Rajiv Gandhi, LK Advani, AB Vajpayee, HS Surjeet and some others.  The next day, an all-party delegation visited Srinagar.

On March 13, 1990, the Lok Sabha adopted a resolution sponsored by the government and the Congress which the Rajya Sabha
passed on March 15, 1990. It said: “The cultural identity of Jammu and Kashmir has been maintained and shall continue to be maintained. The legitimate

aspirations of Jammu and Kashmir will continue to have full expression.” Implicit in these assurances was acceptance of the fact of the alienation of the people from the Union. Both the statement and the resolution condemned the externally-sponsored terrorism. But they did not ignore the sentiments of the people or their aspirations.

But the resolution of February 22, 1994, has not a word on the people or their aspirations. It condemns Pakistan, secessionism and terrorism, declares J&K to be an integral part

of India and demands that Pakistan “must vacate” POK. It is very much like the resolution on China on November 14, 1962. It is utterly irrelevant. Secession is ruled out by all. At a public meeting in New Delhi on April 13, 1956, Nehru offered to Pakistan “demarcating the border on the basis of the present ceasefire line”.

Precisely, this offer was made thrice by Jaswant Singh in 1998, four years after the 1994 resolution, but in secret and to the Americans, Stroke Talbott revealed. If the resolutions do not bar settlement with China or Pakistan, neither does the Constitution. The Supreme Court ruled in the Rann of Kutch case that no cession of territory is involved in a resolution

of a boundary dispute. But cession requires constitutional amendment. No government can cede Tawang to China. Adjustments in the McMahon Line would be a good case of boundary resolution.

As for the Aksai Chin, the map annexed to the first White Paper on Indian States (1948) and published under the authority of the Surveyor-General of India did not even extend the yellow colour wash to the entire state of J&K. Its entire North-east, including the Aksai Chin, was blanked out. The map published in 1950 extended the colour wash but indicated ‘boundary undefined’. In both cases, the McMahon Line was depicted clearly. Nehru ordered unilateral revision of the maps on July 1, 1954, and a new map followed.

However, on September 11, 1959, he admitted: “The Aksai Chin area is disputed and there are two viewpoints about that.” On September 17, 1959, he said, “This place Aksai Chin is in our maps undoubtedly. But, I distinguish it completely from other areas. It is a matter for argument as to what part of it belongs to us and what part of it belongs to somebody else.” It had been “challenged not today, but for a hundred years... It has been in challenge all the time” — a genuine boundary dispute.

To settle Kashmir, the Constitution confers plenary powers on the Union. Article 253 empowers Parliament to legislate even on a subject in the state list “for implementing any treaty”.  But, as applied to Kashmir, it has this significant and unique proviso. “No decision affecting the disposition of the State of Jammu and Kashmir shall be made by the Government of India without the consent of the Government of the State.” Invoking this proviso, the Union can surely make an agreement on ‘disposition’ of a part of J&K, the POK, with the consent of the state government.

In sum, Parliament’s resolutions are no bar on an accord on Kashmir with Pakistan or on the boundary with China and a constitutional amendment would not be necessary to implement either accord.