yesterday
Hassan Aslam Shad |
Kashmir has been the cynosure of world attention since 1947 and a source of bitter rivalry between the two arch-foes, India and Pakistan. With BJP at the helm of affairs in India after a resounding electoral victory earlier this year, Kashmir finds itself at the precipice of a dangerous lawfare, one which is likely to thrust Kashmir once again in the international limelight. This time, more than ever before, for all the wrong reasons.
This lawfare emanates from BJP’s poll promise to undo the special status of Kashmir and integrate it within India to bring it on par with the rest of India. Simply put, the objective is to rewrite India’s social contract with Kashmir and its people. Reportedly in 2015, We the Citizens, an RSS based think tank, challenged Articles 370 and 35A of the Indian Constitution (more on these Articles below) claiming that they violate the Constitution. BJP tried, but couldn’t fulfill this promise during its first term. Under Modi 2.0, this lawfare can be seen gaining momentum.
Article 370 was a historical mistake. It needed to go. There would never be an ideal time to undo this Nehruvian blunder. @narendramodi told voters he would abrogate Art 370 if he got a chance. India voted for him, he’s done what he promised. Let’s hope peace prevails in the end.
— Rahul Kanwal (@rahulkanwal) August 5, 2019
Reportedly, new petitions have been filed before the Supreme Court of India challenging Kashmir’s special status and the matter came for hearing on 10 July this year but is yet to be listed for a detailed hearing. The current wave of nationalism in India has swept away in its wake calls for restraint from tinkering with the Kashmir issue.
Given that BJP is all geared to change Kashmir’s status, this lawfare couldn’t have come at a worse time for Kashmir, its people, or India for that matter. Continuing down this road, India will be sure to shoot itself in the foot and, in the process, pave the way for Kashmir to become the focus of world attention. This will inevitably reignite Kashmiris’ right of self-determination, something unavoidable if BJP goes down this road.
Before getting into the legal tools that India is looking at deploying and the constitutional wizardry one can expect to be conjured within India’s legal and policy circles, let us first have a look at India’s rather tenuous constitutional relationship with the princely State of Jammu and Kashmir (J&K).
This relationship transpired through the Instrument of Accession signed on 26 October 1947 by the ruler, Maharaja Hari Singh, whereby, proclaiming to be acting on behalf of J&K, he acceded it to the Union of India. The Instrument of Accession was accepted by the Governor-General of India, Lord Mountbatten, subject to the proviso that as J&K was the subject matter of dispute between India and Pakistan, the question of accession should be decided in accordance with the wishes of the people of the State.
Reports in the India media claim that on 10 July, the Supreme Court agreed to an early public interest litigation hearing challenging the constitutional validity of Article 370
The Instrument of Accession was a tenuous thread that tied J&K to India. It limited the power of the Indian Parliament to make laws for J&K with respect to three matters: defense, external affairs and communications. Among other things, the Instrument states that signing it shall not be “deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my [the ruler’s] discretion to enter into arrangement with the Governments of India under any such future Constitution”. The Instrument also prohibited the Indian Parliament from making “any law for this State [J&K] authorizing the compulsory acquisition of land for any purpose…”
India’s relationship with J&K and grant of autonomous status to J&K formalized through Article 370 of the Indian Constitution titled “Temporary provisions with respect to the State of Jammu and Kashmir”. Over time, Article 370 has been the gateway through which other provisions of the Indian Constitution have been extended to J&K, albeit not without serious controversy.
The abrogation of Article 370 hasn’t just made accession null & void but also reduces India to an occupation force in Jammu and Kashmir. https://t.co/PS6JxYhSaI
— Mehbooba Mufti (@MehboobaMufti) August 5, 2019
In line with the Instrument of Accession, Article 370 limits the Centre’s legislative powers over J&K to three subjects, namely, defense, foreign affairs and communications. It exempts J&K from the full applicability of the Indian Constitution and allows it to have its own Constitution and Legislature. Most importantly, Article 370 requires that other than defense, external affairs and communications, the Indian Constitution can be extended to J&K only with the “concurrence” of the Government of the State. Not only this, but the “concurrence” by the Government of the State is provisional if it is given before the convening of “the Constituent Assembly [of J&K] for the purpose of framing the Constitution of the State [J&K]…”.
Read more: Lawfare against Pakistan: coercion or self-inflicted wounds?
In other words, such “concurrence” would last, and be valid, until the convening of the J&K Constituent Assembly which is the sole constitutional body authorized to ratifyextension of the Indian Constitution to J&K. Interestingly, this J&K Constituent Assembly dispersed on 17 November 1956 and ceased to exist after adopting the J&K Constitution. This left in its wake a legal blackhole that continues to this day.
Accession of Kashmir to India was conditional to Article 370 and Section 35a. Now that govt wants to do away with it, does it mean accession is now null and void?
— Aditya Menon (@AdityaMenon22) August 5, 2019
Subsequently, the Presidential Order of 1954 titled “The Constitution (Application to Jammu and Kashmir) Order, 1954” was passed which appears as Appendix I to the Indian Constitution. This Presidential Order was issued after both “concurrence” and“ratification” by the J&K Constituent Assembly in accordance with Article 370.
This Presidential Order added a proviso to Article 3 (Formation of new States and alteration of areas, boundaries or names of existing States) of the Constitution. The proviso reads:
“Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State”.
Second, this Presidential Order of 1954 inserted the famous Article 35-A in the Constitution titled “Saving of laws with respect to permanent residents and their rights”. Article 35-A mirrors the safeguard underscored in the Instrument of Accession to preserve J&K’s demographics. This landmark Article of the Constitution empowers the J&K Legislature to define the classes of persons who are, or shall be, permanent residents of J&K; confer on such permanent residents any special rights and privileges or impose upon other persons any restrictions with respect to the acquisition of immovable property in J&K and settlement in the State.
If indeed India manages to scrap Articles 370 and/or 35A through an act of Parliament, withdrawal of the President Order, or some other legal wizardry, India’s established jurisprudence will be turned on its head
With respect to the aforesaid, Article 35-A unequivocally provides that no existing law in force in J&K or that enacted by the J&K Legislature shall be void on the ground that “it is inconsistent with or takes away or abridges any rights conferred on other citizens of India by any provision of this Part”. This is important. In other words, this was positive discrimination in J&K’s favor which was constitutionally protected. It is this very positive discrimination (termed “special treatment” in India) that BJP wishes to undo by rewriting the script. But, in doing so, BJP will be challenging the very legal edifice on which India’s constitutional relationship with J&K rests.
Over the years, the extension of the Indian Constitution and powers of the Central Government to J&K has been carried out through various President Orders solely on the basis of “concurrence” but without “ratification” by the J&K Constituent Assembly. This patent constitutional illegality has been carried out in India by amending the Presidential Order of 1954 as opposed to promulgating new Presidential Orders. This is because the constitutional validity of new Presidential Orders would be in doubt since there is no Constituent Assembly to ratify those Presidential Orders.
This has been termed by eminent Indian jurists such as AG Noorani as the erosion of the special status of Kashmir in violation of Article 370 as it does not meet the dual modalities, namely, “concurrence” (by the Government of the State) and “ratification” (by the Constituent Assembly). AG Noorani has termed this the “systematic hollowing out” of Article 370 and the “graver inroads into Kashmir’s autonomy by violations of Article 370”.
J&K’s accession to India was, in AG Noorani’s words, a “solemn compact” between India and J&K. India’s choices at the time of J&K’s accession were starkly limited: either accept J&K’s accession with unprecedented concessions or give it up to Pakistan – the logical........
