04-10-2004, 08:47 PM
CHAPTER XV
WHO CAN DECIDE ?
There are two sides to the question of Pakistan, the Hindu side and the Muslim side. This cannot be
avoided. Unfortunately however the attitude of both is far from rational. Both are deeply embedded
in sentiment. The layers of this sentiment are so thick that reason at present finds it extremely
difficult to penetrate. Whether these opposing sentiments will wither away or they will thicken,
time and circumstances alone can tell. How long Indians will have to wait for the melting of the
snow no one can prophesy. But one thing is certain that 'until this snow melts freedom will have to
be put in cold storage. I am sure there must be many millions of thinking Indians who are dead
opposed to this indefinite postponement of Indian freedom till an ideal and a permanent solution of
Pakistan is found. I am one of them. I am one of those who hold that if Pakistan is a problem and
not a pose there is no escape and a solution must be found for it. I am one of those who believe that
what is inevitable must be faced. There is no use burying one's head in the sand and refusing to take
notice of what is happening round about because the sound of it hurts one's sentiments. I am also
one of those who believe that one must, if one can, be ready with a solution long before the hour of
decision arrives. It is wise to build a bridge if one knows that one will be forced to cross the river.
The principal problem of Pakistan is : who can decide whether there shall or shall not be Pakistan ?
I have thought over the subject for the last three years, and I have come to some conclusions as to
the proper answer to this question. These conclusions I would like to share with others interested in
the solution of the problem so that they may be further explored. To give clarity to my conclusions,
I have thought that it would serve the purpose better if I were to put them, in the form of an Act of
Parliament. The following is the draft of the Act which embodies my conclusions:â
Government of India (Preliminary Provisions) Act
Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the
authority of the same as follows :â
I.â(1) If within six months from the date appointed in this behalf a majority of the Muslim
members of the Legislatures of the Provinces of the North-West Frontier, the Punjab, Sind and
Bengal pass a resolution that the predominantly Muslim areas be separated from British India, His
Majesty shall cause a poll to be taken on that question of the Muslim and the non-Muslim electors
of these Provinces and of Baluchistan in accordance with the provisions of this Act.
(2) The question shall be submitted to the electors in these Provinces in the following form :â (i)
Are you in favour of separation from British India ? (U) Are you against separation ?
(3) The poll of Muslim and non-Muslim electors shall be taken separately.
II.â(1) If on a result of the poll, a majority of Muslim electors are found to be in favour of
separation and a majority of non-Muslim electors against separation, His Majesty shall by
proclamation appoint a Boundary Commission for the purpose of preparing a list of such districts
and areas in these Provinces in which a majority of inhabitants are Muslims. Such districts and
areas shall be called Scheduled Districts.
(2) The Scheduled Districts shall be collectively designated as Pakistan and the rest of British India
as Hindustan. The Scheduled Districts lying in the North-west shall be called the State of Western
Pakistan and those lying in the North-east shall be called Eastern Pakistan.
///.â(1) After the findings of the Boundary Commission have become final either by agreement or
the award of an Arbitrator, His Majesty shall cause another poll to be taken of the electors of the
Scheduled Districts.
(2) The following shall be the form of the questions submitted to the electors :â (i) Are you in
favour of separation forthwith ? (U) Are you against separation forthwith ?
IV.â(I ) If the majority is in favour of separation forthwith it shall be lawful for His Majesty to
make arrangements for the framing of two separate constitutions, one for Pakistan and the other for
Hindustan.
(2) The New States of Pakistan and Hindustan shall commence to function as separate States on the
day appointed by His Majesty by proclamation issued in that behalf.
(3) If the majority are against separation forthwith it shall be lawful for His Majesty to make
arrangements for the framing of a single constitution for British India as a whole.
V.â No motion for the separation of Pakistan. lf the poll under the last preceding section has been
against separation forthwith and no motion for incorporation of Pakistan into Hindustan if the poll
under the last preceding section has been in favour of separation forthwith shall be entertained until
ten years have elapsed from the date appointed by His Majesty for putting into effect the new
constitution for British India or the two separate constitutions for Pakistan and Hindustan.
VI.â(1) In the event of two separate constitutions coming into existence under Section Four it
shall be lawful for His Majesty to establish as soon as may be after the appointed day, a Council of
India with a view to the eventual establishment of a constitution for the whole of British India, and
to bringing about harmonious action between the Legislatures and Governments of Pakistan and
Hindustan, and to the promotion of mutual intercourse and uniformity in relation to matters
affecting the whole of British India, and to providing for the administration of services which the
two parliaments mutually agree should be administered uniformly throughout the whole of British
India, or which by virtue of this Act are to be so administered.
(2) Subject as hereinafter provided, the Council of India shall consist of a President nominated in
accordance with instructions from His Majesty and forty other persons, of whom twenty shall be
members representing Pakistan and twenty shall be members representing Hindustan.
(3) The members of the Council of India shall be elected in each case by the members of the Lower
Houses of the Parliament of Pakistan or Hindustan.
(4) The election of members of the Council of India shall be the first business of the Legislatures of
Pakistan and Hindustan.
(5) A member of the Council shall, on ceasing to be a member of that House of the Legislature of
Pakistan or Hindustan by which he was elected a member of the Council, cease to be a member of
the Council : Provided that, on the dissolution of the Legislature of Pakistan or Hindustan, the
persons who are members of the Council shall continue to hold office as members of the Council
until a new election has taken place and shall then retire unless re-elected.
(6) The President of the Council shall preside at each meeting of the Council at which he is present
and shall be entitled to vote in case of an equality of votes, but not otherwise.
(7) The first meeting of the Council shall be held at such time and place as may be appointed by the
President.
(8) The Council may act notwithstanding a deficiency in their number, and the quorum of the
Council shall be fifteen.
(9) Subject as aforesaid, the Council may regulate their own procedure, including the delegation of
powers to committees.
(10) The constitution of the Council of India may from time to time be varied by identical Acts
passed by the Legislature of Pakistan and the Legislature of Hindustan, and the Acts may provide
for all or any of the members of the Council of India being elected by parliamentary electors, and
determine the constituencies by which the several elective members are to be returned and the
number of the members to be returned by the several constituencies and the method of election.
VII.â(1) The Legislatures of Pakistan and Hindustan may, by identical Acts, delegate to the
Council of India any of the powers of the Legislatures and Government of Pakistan and Hindustan,
and such Acts may determine the manner in which the powers so delegated are to be exercisable by
the Council.
(2) The powers of making laws with respect to railways and waterways shall, as from the day
appointed for the operation of the new constitution, become the powers of the Council of India and
not of Pakistan or Hindustan : Provided that nothing in this subsection shall prevent the Legislature
of Pakistan or Hindustan making laws authorising the construction, extension, or improvement of
railways and waterways where the works to be constructed are situate wholly in Pakistan or
Hindustan as the case may be.
(3) The Council may consider any questions which may appear in any way to bear on the welfare of
both Pakistan and Hindustan, and may, by resolution, make suggestions in relation thereto as they
may think proper, but suggestions so made shall have no legislative effect.
(4) It shall be lawful for the Council of India to make recommendations to the Legislatures of
Pakistan and Hindustan as to the advisability of passing identical Acts delegating to the Council of
India the administration of any all-India subject, with a view to avoiding the necessity of
administering them separately in Pakistan or Hindustan.
(5) It shall be lawful for either Legislature at any time by Act to deprive the delegation to the
Council of India of any powers which are in pursuance of such identical Acts as aforesaid for the
time being delegated to the Council and thereupon the powers in question shall cease to be
exercisable by the Council of India and shall become exercisable in parts of British India within
their respective jurisdictions by the Legislatures and Governments of Pakistan and Hindustan and
the Council shall take such steps as may be necessary to carry out the transfer, including
adjustments of any funds in their hands or at their disposal.
VIII.â(1) If at the end of ten years after coming into operation of a constitution for British India as
prescribed by Section IVâ(3) a petition is presented to His Majesty by a majority of the Muslim
members representing the Scheduled Districts in the Provincial and Central Legislatures demanding
a poll to be taken with regard to the separation of Pakistan from Hindustan, His Majesty shall cause
a poll to be taken. (2) The following shall be the form of the questions submitted to the electors :â
d) Are you in favour of separation of Pakistan from Hindustan ?
(ii) Are you against the separation of Pakistan from Hindustan ?
IX.â If the result of the poll is in favour of separation it shall be lawful for His Majesty to declare
by an Order-in-Council that from a day appointed in that behalf Pakistan shall cease to be a part of
British India, and dissolve the Council of India.
X.â(1) Where two constitutions have come into existence under circumstances mentioned in
Section IV it shall be lawful for His Majesty to declare by an Order-in-Council that Pakistan shall
cease to be a separate State and shall form part of Hindustan. Provided that no such order shall be
made until ten years have elapsed from the commencement of the separate constitution for
Pakistan. Provided also that no such declaration shall be made unless the Popular Legislatures of
Pakistan and Hindustan have passed Constituent Acts as are provided for in Section Xâ(2).
(2) The popular Legislatures of Pakistan and Hindustan may, by identical Acts agreed to by an
absolute majority of members at the third reading (hereinafter referred to as Constituent Acts),
establish, in lieu of the Council of India, a Legislature for United India, and may determine the
number of members thereof and the manner in which the members are to be appointed or elected
and the constituencies for which the several elective members are to be returned, and the number of
members to be returned by the several constituencies, and the method of appointment or election,
and the relations of the two Houses if provided for to one another.
XI.â(1) On the date of the union of Pakistan and Hindustan the Council of India shall cease to
exist and there shall be transferred to the Legislature and Government of India all powers then
exercisable by the Council of India.
(2) There shall also be transferred to the Legislature and Government of British India all the powers
and duties of the Legislatures and Government of Pakistan and Hindustan, including all powers as
to taxation, and those Legislatures and Government shall cease to exist.
XII.â(1) A poll under this Act shall be taken by ballot in the same manner so far as possible as a
poll of electors for the election of a member to serve in a Legislature and His Majesty may make
rules adopting the election laws for the purpose of the taking of the poll.
(2) An elector shall not vote more than once at the poll, although registered in more than one place.
(3) Elector means every adult male and female residing in the Provinces of North-West Frontier,
the Punjab, Sind, and Bengal and in Baluchistan.
XIII.â This Act may be called the Indian Constitution
(Preliminary Provisions) Act, I94 .
I do not think .that any detailed explanation is necessary for the reader to follow and grasp the
conclusions I have endeavoured to embody in this skeleton Act. Perhaps it might be advantageous
if I bring out some of the salient features of the proposals to which the projected statute of
Parliament is intended to give effect by comparing them with the Cripps proposals.
In my opinion it is no use for Indians to ask and the British Parliament to agree to proceed
forthwith to pass an Act conferring Dominion Status or Independence without first disposing of the
issue of Pakistan. The Pakistan issue must be treated as a preliminary issue and must be disposed of
one way or the other. This is why I have called the proposed Act " The Government of India
(Preliminary Provisions) Act." The issue of Pakistan being one of self-determination must be
decided by the wishes of the people. It is for this that I propose to take a poll of the Muslims and
non-Muslims in the predominantly Muslim Provinces. If the Majority of the Muslims are in favour
of separation and a majority of non-Muslims are against separation, steps must be taken to delimit
the areas wherever it is possible by redrawing provincial boundaries on ethnic and cultural lines by
separating the Muslim majority districts from the districts in which the majority consists of
non-Muslims. A Boundary Commission is necessary for this purpose. So a Boundary Commission
is provided for in the Act. It would be better if the Boundary Commission could be international in
its composition.
The scheme of separate referenda of Muslims and non-Muslims is based on two principles which I
regard as fundamental. The first is that a minority can demand safeguards for its protection against
the tyranny of the majority. It can demand them as a condition precedent. But a minority has no
right to put a veto on the right of the majority .to decide on questions of ultimate destiny. This is the
reason why I have confined the referendum on the establishment of Pakistan to Muslims only. The
second is that a communal majority cannot claim a communal minority to submit itself to its
dictates. Only a political majority may be permitted to rule a political minority. This principle has
been modified in India where a communal minority is placed under a communal majority subject to
certain safeguards. But this is as regards the ordinary question of social, economic and political
importance. It has never been conceded and can never be conceded that a communal majority has a
right to dictate to a communal minority on an issue which is of a constitutional character. That is
the reason why I have provided a separate referendum of non-Muslims only, to decide whether they
prefer to go in Pakistan or come into Hindustan
WHO CAN DECIDE ?
There are two sides to the question of Pakistan, the Hindu side and the Muslim side. This cannot be
avoided. Unfortunately however the attitude of both is far from rational. Both are deeply embedded
in sentiment. The layers of this sentiment are so thick that reason at present finds it extremely
difficult to penetrate. Whether these opposing sentiments will wither away or they will thicken,
time and circumstances alone can tell. How long Indians will have to wait for the melting of the
snow no one can prophesy. But one thing is certain that 'until this snow melts freedom will have to
be put in cold storage. I am sure there must be many millions of thinking Indians who are dead
opposed to this indefinite postponement of Indian freedom till an ideal and a permanent solution of
Pakistan is found. I am one of them. I am one of those who hold that if Pakistan is a problem and
not a pose there is no escape and a solution must be found for it. I am one of those who believe that
what is inevitable must be faced. There is no use burying one's head in the sand and refusing to take
notice of what is happening round about because the sound of it hurts one's sentiments. I am also
one of those who believe that one must, if one can, be ready with a solution long before the hour of
decision arrives. It is wise to build a bridge if one knows that one will be forced to cross the river.
The principal problem of Pakistan is : who can decide whether there shall or shall not be Pakistan ?
I have thought over the subject for the last three years, and I have come to some conclusions as to
the proper answer to this question. These conclusions I would like to share with others interested in
the solution of the problem so that they may be further explored. To give clarity to my conclusions,
I have thought that it would serve the purpose better if I were to put them, in the form of an Act of
Parliament. The following is the draft of the Act which embodies my conclusions:â
Government of India (Preliminary Provisions) Act
Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the
authority of the same as follows :â
I.â(1) If within six months from the date appointed in this behalf a majority of the Muslim
members of the Legislatures of the Provinces of the North-West Frontier, the Punjab, Sind and
Bengal pass a resolution that the predominantly Muslim areas be separated from British India, His
Majesty shall cause a poll to be taken on that question of the Muslim and the non-Muslim electors
of these Provinces and of Baluchistan in accordance with the provisions of this Act.
(2) The question shall be submitted to the electors in these Provinces in the following form :â (i)
Are you in favour of separation from British India ? (U) Are you against separation ?
(3) The poll of Muslim and non-Muslim electors shall be taken separately.
II.â(1) If on a result of the poll, a majority of Muslim electors are found to be in favour of
separation and a majority of non-Muslim electors against separation, His Majesty shall by
proclamation appoint a Boundary Commission for the purpose of preparing a list of such districts
and areas in these Provinces in which a majority of inhabitants are Muslims. Such districts and
areas shall be called Scheduled Districts.
(2) The Scheduled Districts shall be collectively designated as Pakistan and the rest of British India
as Hindustan. The Scheduled Districts lying in the North-west shall be called the State of Western
Pakistan and those lying in the North-east shall be called Eastern Pakistan.
///.â(1) After the findings of the Boundary Commission have become final either by agreement or
the award of an Arbitrator, His Majesty shall cause another poll to be taken of the electors of the
Scheduled Districts.
(2) The following shall be the form of the questions submitted to the electors :â (i) Are you in
favour of separation forthwith ? (U) Are you against separation forthwith ?
IV.â(I ) If the majority is in favour of separation forthwith it shall be lawful for His Majesty to
make arrangements for the framing of two separate constitutions, one for Pakistan and the other for
Hindustan.
(2) The New States of Pakistan and Hindustan shall commence to function as separate States on the
day appointed by His Majesty by proclamation issued in that behalf.
(3) If the majority are against separation forthwith it shall be lawful for His Majesty to make
arrangements for the framing of a single constitution for British India as a whole.
V.â No motion for the separation of Pakistan. lf the poll under the last preceding section has been
against separation forthwith and no motion for incorporation of Pakistan into Hindustan if the poll
under the last preceding section has been in favour of separation forthwith shall be entertained until
ten years have elapsed from the date appointed by His Majesty for putting into effect the new
constitution for British India or the two separate constitutions for Pakistan and Hindustan.
VI.â(1) In the event of two separate constitutions coming into existence under Section Four it
shall be lawful for His Majesty to establish as soon as may be after the appointed day, a Council of
India with a view to the eventual establishment of a constitution for the whole of British India, and
to bringing about harmonious action between the Legislatures and Governments of Pakistan and
Hindustan, and to the promotion of mutual intercourse and uniformity in relation to matters
affecting the whole of British India, and to providing for the administration of services which the
two parliaments mutually agree should be administered uniformly throughout the whole of British
India, or which by virtue of this Act are to be so administered.
(2) Subject as hereinafter provided, the Council of India shall consist of a President nominated in
accordance with instructions from His Majesty and forty other persons, of whom twenty shall be
members representing Pakistan and twenty shall be members representing Hindustan.
(3) The members of the Council of India shall be elected in each case by the members of the Lower
Houses of the Parliament of Pakistan or Hindustan.
(4) The election of members of the Council of India shall be the first business of the Legislatures of
Pakistan and Hindustan.
(5) A member of the Council shall, on ceasing to be a member of that House of the Legislature of
Pakistan or Hindustan by which he was elected a member of the Council, cease to be a member of
the Council : Provided that, on the dissolution of the Legislature of Pakistan or Hindustan, the
persons who are members of the Council shall continue to hold office as members of the Council
until a new election has taken place and shall then retire unless re-elected.
(6) The President of the Council shall preside at each meeting of the Council at which he is present
and shall be entitled to vote in case of an equality of votes, but not otherwise.
(7) The first meeting of the Council shall be held at such time and place as may be appointed by the
President.
(8) The Council may act notwithstanding a deficiency in their number, and the quorum of the
Council shall be fifteen.
(9) Subject as aforesaid, the Council may regulate their own procedure, including the delegation of
powers to committees.
(10) The constitution of the Council of India may from time to time be varied by identical Acts
passed by the Legislature of Pakistan and the Legislature of Hindustan, and the Acts may provide
for all or any of the members of the Council of India being elected by parliamentary electors, and
determine the constituencies by which the several elective members are to be returned and the
number of the members to be returned by the several constituencies and the method of election.
VII.â(1) The Legislatures of Pakistan and Hindustan may, by identical Acts, delegate to the
Council of India any of the powers of the Legislatures and Government of Pakistan and Hindustan,
and such Acts may determine the manner in which the powers so delegated are to be exercisable by
the Council.
(2) The powers of making laws with respect to railways and waterways shall, as from the day
appointed for the operation of the new constitution, become the powers of the Council of India and
not of Pakistan or Hindustan : Provided that nothing in this subsection shall prevent the Legislature
of Pakistan or Hindustan making laws authorising the construction, extension, or improvement of
railways and waterways where the works to be constructed are situate wholly in Pakistan or
Hindustan as the case may be.
(3) The Council may consider any questions which may appear in any way to bear on the welfare of
both Pakistan and Hindustan, and may, by resolution, make suggestions in relation thereto as they
may think proper, but suggestions so made shall have no legislative effect.
(4) It shall be lawful for the Council of India to make recommendations to the Legislatures of
Pakistan and Hindustan as to the advisability of passing identical Acts delegating to the Council of
India the administration of any all-India subject, with a view to avoiding the necessity of
administering them separately in Pakistan or Hindustan.
(5) It shall be lawful for either Legislature at any time by Act to deprive the delegation to the
Council of India of any powers which are in pursuance of such identical Acts as aforesaid for the
time being delegated to the Council and thereupon the powers in question shall cease to be
exercisable by the Council of India and shall become exercisable in parts of British India within
their respective jurisdictions by the Legislatures and Governments of Pakistan and Hindustan and
the Council shall take such steps as may be necessary to carry out the transfer, including
adjustments of any funds in their hands or at their disposal.
VIII.â(1) If at the end of ten years after coming into operation of a constitution for British India as
prescribed by Section IVâ(3) a petition is presented to His Majesty by a majority of the Muslim
members representing the Scheduled Districts in the Provincial and Central Legislatures demanding
a poll to be taken with regard to the separation of Pakistan from Hindustan, His Majesty shall cause
a poll to be taken. (2) The following shall be the form of the questions submitted to the electors :â
d) Are you in favour of separation of Pakistan from Hindustan ?
(ii) Are you against the separation of Pakistan from Hindustan ?
IX.â If the result of the poll is in favour of separation it shall be lawful for His Majesty to declare
by an Order-in-Council that from a day appointed in that behalf Pakistan shall cease to be a part of
British India, and dissolve the Council of India.
X.â(1) Where two constitutions have come into existence under circumstances mentioned in
Section IV it shall be lawful for His Majesty to declare by an Order-in-Council that Pakistan shall
cease to be a separate State and shall form part of Hindustan. Provided that no such order shall be
made until ten years have elapsed from the commencement of the separate constitution for
Pakistan. Provided also that no such declaration shall be made unless the Popular Legislatures of
Pakistan and Hindustan have passed Constituent Acts as are provided for in Section Xâ(2).
(2) The popular Legislatures of Pakistan and Hindustan may, by identical Acts agreed to by an
absolute majority of members at the third reading (hereinafter referred to as Constituent Acts),
establish, in lieu of the Council of India, a Legislature for United India, and may determine the
number of members thereof and the manner in which the members are to be appointed or elected
and the constituencies for which the several elective members are to be returned, and the number of
members to be returned by the several constituencies, and the method of appointment or election,
and the relations of the two Houses if provided for to one another.
XI.â(1) On the date of the union of Pakistan and Hindustan the Council of India shall cease to
exist and there shall be transferred to the Legislature and Government of India all powers then
exercisable by the Council of India.
(2) There shall also be transferred to the Legislature and Government of British India all the powers
and duties of the Legislatures and Government of Pakistan and Hindustan, including all powers as
to taxation, and those Legislatures and Government shall cease to exist.
XII.â(1) A poll under this Act shall be taken by ballot in the same manner so far as possible as a
poll of electors for the election of a member to serve in a Legislature and His Majesty may make
rules adopting the election laws for the purpose of the taking of the poll.
(2) An elector shall not vote more than once at the poll, although registered in more than one place.
(3) Elector means every adult male and female residing in the Provinces of North-West Frontier,
the Punjab, Sind, and Bengal and in Baluchistan.
XIII.â This Act may be called the Indian Constitution
(Preliminary Provisions) Act, I94 .
I do not think .that any detailed explanation is necessary for the reader to follow and grasp the
conclusions I have endeavoured to embody in this skeleton Act. Perhaps it might be advantageous
if I bring out some of the salient features of the proposals to which the projected statute of
Parliament is intended to give effect by comparing them with the Cripps proposals.
In my opinion it is no use for Indians to ask and the British Parliament to agree to proceed
forthwith to pass an Act conferring Dominion Status or Independence without first disposing of the
issue of Pakistan. The Pakistan issue must be treated as a preliminary issue and must be disposed of
one way or the other. This is why I have called the proposed Act " The Government of India
(Preliminary Provisions) Act." The issue of Pakistan being one of self-determination must be
decided by the wishes of the people. It is for this that I propose to take a poll of the Muslims and
non-Muslims in the predominantly Muslim Provinces. If the Majority of the Muslims are in favour
of separation and a majority of non-Muslims are against separation, steps must be taken to delimit
the areas wherever it is possible by redrawing provincial boundaries on ethnic and cultural lines by
separating the Muslim majority districts from the districts in which the majority consists of
non-Muslims. A Boundary Commission is necessary for this purpose. So a Boundary Commission
is provided for in the Act. It would be better if the Boundary Commission could be international in
its composition.
The scheme of separate referenda of Muslims and non-Muslims is based on two principles which I
regard as fundamental. The first is that a minority can demand safeguards for its protection against
the tyranny of the majority. It can demand them as a condition precedent. But a minority has no
right to put a veto on the right of the majority .to decide on questions of ultimate destiny. This is the
reason why I have confined the referendum on the establishment of Pakistan to Muslims only. The
second is that a communal majority cannot claim a communal minority to submit itself to its
dictates. Only a political majority may be permitted to rule a political minority. This principle has
been modified in India where a communal minority is placed under a communal majority subject to
certain safeguards. But this is as regards the ordinary question of social, economic and political
importance. It has never been conceded and can never be conceded that a communal majority has a
right to dictate to a communal minority on an issue which is of a constitutional character. That is
the reason why I have provided a separate referendum of non-Muslims only, to decide whether they
prefer to go in Pakistan or come into Hindustan