Again thanks for your response!
On constitutional matters, this is what I read:
The Instrument of Accession says the following with regard to External Affairs:
1. External affairs; the implementing of treaties and agreements with other countries;
From the wording, I would assume, that negotiation of treaties and agreements does not fall into the purview of Indian Government.
According to Article 370 the J&K State Assembly has to give its concurrence to any Indian Law for it to be valid over J&K.
That would mean for any Law, which is not about Defence, Communications or Foreign Affairs, India would have to get the concurrence
of the J&K State Assembly, regardless of whether the law in question deals with a subject in the Union, Concurrent or Residual List. This is different for other states in the Indian Union.
If 'water' was not mentioned in the IoA, it comes under the residuary power of the Union Government.
My reading is different on this matter. Water would perhaps come under Residuary Power of the Union Government, if it is not part of the Union List or Concurrent List or State List. But the Schedule in the Instrument of Accession is a positive list
, and not a negative list. It states the issues over which the Dominion of India may avail without concurrence of J&K State Assembly. For all other issues, the concurrence of J&K State Assembly is required.
So even as GoI would be the only instance to deal with foreign issues externally, in this case IWT, GoI internal to India, would first need to bring the resources or aspect in question under its responsibility, in this case river waters of J&K, which can only happen with concurrence of J&K State Assembly. I am not sure whether GoI has received that concurrence on this matter.
So J&K State Assembly can always claim that before India signed on to the IWT, India should have sought concurrence and clearance from J&K State Assembly. As India did not do so (I am assuming here), India did not have the right to barter away J&K water wealth.
On the issue of leaving it to the state of J&K, there are several issues. Firstly, not the entire Indus system of Rivers concern J&K. The eastern rivers do not flow through J&K. Among the Western rivers, only Jhelum originates in J&K. The Chenab originates in Himachal Pradesh and the Indus itself near Manasarovar in Tibet. So, the entire system of rivers cannot be considered as a package for settlement by an entity other than GoI.
- For Jhelum, J&K takes full responsibility!
- For Chenab, J&K would have to find a sharing formula with Himachal Pradesh, perhaps share in the profits of selling the water, where Himachal's share would flow back to India. The Central Govt. can adjudicate the sharing of river waters. The last law has the concurrence of the J&K State Assembly.
- For Indus, J&K would simply claim all water that passes through its area as its own. Are the Chinese going to change the course?
Secondly, Indian Constitution does not allow any state to negotiate a treaty with another country. that is a sure recipe to fragmentation in double quick time.
I am not saying GoI should not be the party to sign treaties and agreements with foreign countries and then take the responsibility of their implementation.
What I am saying is that GoI should have first brought the river waters of the Western rivers under its responsibility by reaching an agreement with the J&K State Assembly (making the assumption, that they didn't), and then having the J&K State Assembly pass a law to this effect, and then India could/should have signed the IWT.
Only GoI could have signed the IWT, of course! Only GoI did not do the needful to get the authority to do so from the J&K State Assembly as per Article 370 prior to signing on the IWT. This means GoI signed the IWT without the necessary authorization from J&K State Assembly (again some assumption being made here).
So GoI's sole privilege to deal with External Affairs for the Union of India is not being questioned or diluted, just the manner in which it was executed with respect to J&K river waters, thus making India's signature on the IWT untenable.
Thirdly, we cannot selectively go back on the integration of J&K to suit our convenience.
J&K is well integrated with Union of India. Just for reference a list of all the Indian Laws which are applicable to J&K
There is a certain procedure laid down on how Indian Laws would be extended to J&K. Considering how many laws are already part of J&K legal corpus, it has been proven that at least on this front the J&K State Legislators do not deem necessary to underline the separateness.
Of course, Article 370 has many negatives with respect to India, especially in regard to owning property there or voting there. But in this particular case, Article 370 may be our savior.
If we have had to carry the burden of Article 370 for so many years, why not enjoy this rare opportunity, where it works in our favor. If we water the trees for so long, why not enjoy this one time fruit, it brings forth!
I understand, that my exposition above almost sounds seditious, but the cause is noble - to bring the Western Rivers under Indian control, and with that to bring Pakistan itself under Indian control!
If IWT is so bad, we should explore all venues to get rid of it! We should look for loopholes where ever we can!
If we get Pakistan under our control, then Kashmir gets solved by itself.