Kashmir-The Legal, Historical & Political Dimensions of Article 370
- The Government of India, on August 5, 2019 by promulgating “The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O.272) made certain alterations in the language of Article 370 of the Indian Constitution that radically changed its very nature. The original design of this Article was meant to preserve a special status for the State of Jammu and Kashmir, (for reasons that would be more clear in the discussion that follows). Not only that, India has also promulgated the Jammu and Kashmir Reorganization Act, 2019, pursuant to which the very status of Jammu and Kashmir as a separate State, would come to end and it will become a Union Territory of India. It would no more remain a “State” in terms of the Indian Constitution. To understand the implications of these developments, it is necessary to critically analyze not only the legal aspects of the changes in the law but also highlight the historical and political context of the Jammu and Kashmir dispute.
- (a). The Government of India Act, 1935 (“Act of 1935”), by section 5, established a Federation under the British Crown by the name of the Federation of India. Section 311 of the Act defines the two terms “British India” and “India”. The term British India covered territories which were being administered as Governor’s Provinces by the Governor-General or were Chief Commissioner’s Provinces, while the term India also included, in addition to British India, the territories in “India” of different Indian States held by various rulers under the sovereignty of the Crown (the “Princely States”) and also the tribal areas.
(b). It may be clarified here that around the time of the Act of 1935, there were about 565 Princely States, that were not part of British India but were territories enjoying various levels of sovereignty under the British Crown whose paramountcy status, as the suzerain, they recognized. Some of these Princely States comprised huge territories, even larger than many European countries, such as Hyderabad and Kashmir having over 80,000 square miles each, while others measured less than one square mile. The relationship between the States and the Crown was set out in various treaties and agreements. The scope for interference available to the paramount suzerain varied from state to state. The larger states were almost completely independent except for their competence to establish external relations and maintain strong armies. The usual nature of the relationship is reflected in the clauses 2, 3 and 9, a treaty made on January 13, 1819, between the Maharana of Udaipur and the British Government:
“2. The British Government engages to protect the principality and territory of Udaipur.
3. The Maharana of Udaipur will always act in subordinate co-operation with the British Government, and acknowledge its supremacy and will not have any connection with other Chiefs or states.
9.The Maharana of Udaipur shall always be the absolute ruler of his own country, and the British jurisdiction shall not be introduced into that principality.”
(c). However, despite this status of being beyond British jurisdiction, they remained under the ultimate suzerainty of the British Crown. This fact was emphatically brought home in the letter written in 1926 by the Viceroy Lord Reading to the Nizam of Hyderabad. The letter stated, “The sovereignty of the British Crown is supreme in India, and therefore no Ruler of an Indian State can justify the claim to negotiate with the British Government on an equal footing”.
(d). The Act of 1935 visualized that, as far as the paramountcy relations were concerned, the functions of the Crown would be carried out by a Crown Representative, while the governance of the Federation would be headed by the Governor-General. In fact, the Governor-General was to enjoy the dual status of being the Governor-General for the Federation of India as well as the Crown Representative vis-à-vis the Princely States.
- Section 6 of the Act of 1935 visualized that a Princely State could accede to the Federation of India if the Governor-General accepted the “Instrument of Accession” executed by the Ruler of the State. A format of such an instrument was prepared for purposes of the Act. The Instrument of Accession was to specify the matters as regards which the Ruler accepted the competence of the Federal Legislature to make laws for the Indian State and could also specify any limitations placed on the law-making powers of the Federation and the extent to which its executive authority may extend in the State. This Instrument could be varied by a subsequent supplementary Instrument. Section 6 made it clear that no Indian State could be compelled to join the Federation against its will and no terms could be imposed, to which the State did not agree.
- The scheme for accession of the Princely States to the Federation of India under the Act of 1935 was completely abandoned in 1940 and, therefore, the political position at that time was that India constituted one territory comprising British India (about 60 percent) and the remaining territory comprising the Indian States (Princely States) and tribal areas.
- The process of granting some kind of representation to the Indian people started at a very modest level through the Indian Councils Act of 1892 and progressed through the Government of India Act 1912, the Government of India Act, 1919. The Government of India Act, 1935 and finally culminated in the Indian Independence Act, 1947. After the Act of 1919, the British Crown created a Chamber of Princes in 1921 as a consultative body to speak for the Princely States as regards their relationship with British India. Over 100 States were directly represented in this Chamber through their Rulers, while the remaining were represented indirectly. In fact, pursuant to the Act of 1935, the building of the Indian parliament had a portion where the Chamber of Princes could assemble. The question as to what would be the status of the Princely States as regards any dominion government for British India was discussed in the Cripps Mission Report of 1942 and, subsequently, prior to the Indian Independence Act, 1947, in the views of the Cabinet Mission. In both of these, it was clearly recognized that the paramount powers would not be transferred to any Dominion established for British India.
- The Indian Independence Act, 1947, stated that two independent Dominions known as India and Pakistan would stand established, comprising the territories mentioned in the Act. Section 5 stated that for each of the new Dominion there shall be a Governor-General who shall represent the Crown for the purpose of the government of the Dominion. Section 7 stated that the suzerainty of the Crown over the Indian States (Princely States) would lapse and all treaties and agreements between the Crown and the Princely State will come to end. In other words, paramountcy would cease. However, section 2 (4) stated that an Indian State, if it so chose, was at liberty to join either Dominion. The Act also stated that subject to laws made by the Constituent Assembly of a Dominion, the new Dominions, and their Provinces shall continue to be governed in accordance with the Government of India Act, 1935. This Act, therefore, served as a constitution for the Dominions pending framing of their respective constitutions.
- From the provisions of the Indian Independence Act, 1947 it can be seen that the Princely States came to be more independent even than India and Pakistan since these two were established as Dominions that recognized the British Crown as their suzerain, represented by the Governor-General, while the Princely States had no further relationship whatsoever with the British Crown or any other paramount power. Queen Elizabeth was the Queen of Pakistan also, till March 23, 1956, when Pakistan adopted a republican constitution.
- Although the Indian Independence Act, 1947 visualized that, in addition to the two Dominions, the departing British power would also leave behind various sovereign Princely States, the frame of mind of the Indian Government, as disclosed by its subsequent actions, shows that it has always believed that India was essentially a single indivisible entity (“Akhand Bharat”), and that the existence of the various Princely States and other political entities was an aberration. They were the offsprings that had strayed away and had to be brought back to the folds of their mother: the folds of Mother India (“Bharat Mata”). This had to be done through whatever means that could prove effective – whether by cajoling or by coercion. No territory was allowed to survive as an independent entity. The French holdings in the Indian Sub-Continent were incorporated through negotiation and the Portuguese sovereign territory of Goa (whose separate legal status in India had always been recognized by the British Empire itself) was also brought into the Indian fold by force. The special status of Kashmir was also felt to be some sort of historical anomaly, which had to be “corrected”. This “nationalistic” frame of mind explains India’s territorial imperatives, after the British decision to leave India.
- By the eve of Indian independence on August 15, 1947, almost all the Princely States in the territory that was to comprise the Dominion of India had signed Instruments of Accession (the “Instrument”). However, the Nizam of Hyderabad had communicated that he would prefer that his State remained independent. Hyderabad was a State with hindu majority landlocked within India. The Nizam signed the Instrument with India when the Indian forces occupied his territory. Junagarh was also a hindu majority State but with a muslim Ruler. Its Nawab signed an Instrument of Accession for joining Pakistan, which was accepted by the Governor General of Pakistan. However, Indian forces moved into his territory. The Nawab fled to Pakistan. A plebiscite was held in the State and the votes were in favour of joining India. The process of integration of the various Princely States that had signed the Instrument with India was completed in stages. Instruments of Accession were followed by merger agreements, and then the territories were included in various provinces or otherwise reorganized. However, the story of the State Jammu and Kashmir is quite different.
- Jammu and Kashmir was a State ruled by Maharaja Hari Singh who was not a Kashmiri but was a Dogra Rajput Hindu. The population was mainly Muslim but with a significant Hindu population. Kashmir valley had been purchased on 16th March 1846 under the Treaty of Amritsar by Raja Gulab Singh for a sum of Rs. 7.5 Million from the British. Raja Gulab Singh, at that time, also held Jammu and Ladakh areas. The Sikhs had lost the First Anglo-Sikh War of 1845 and under the Treaty of Lahore of 9th March 1846 had undertaken to pay to the British Rs. 15 Million as indemnity for the expenses of the war, but they did not have sufficient funds. To settle Rs. 10 Million they ceded Kashmir, Hazara and certain other areas to the British. Raja Gulab Singh, who was the brother of Dhian Singh, a Minister of the Sikh Maharaja, and had played a useful role in the relationship of the British and the Sikh State, agreed to buy Kashmir. Under the Treaty of Amritsar, under which the sale took place, the Maharaja recognized the sovereignty of the British Crown. Article 10 of the Treaty provided as follows:
“Article 10. Maharajah Gulab Singh acknowledges the supremacy of the British Government and will in token of such supremacy present annually to the British Government one horse, twelve shawl goats of approved breed (six male and six female) and three pairs of Cashmere shawls”.
- Maharaja Hari Singh, the Ruler of Jammu and Kashmir at the time of partition in 1947, had indicated that he would prefer to keep his State independent. His State had borders not only with the two Dominions but also with China and the USSR (separated only by a stretch of a narrow territory). However, when tribesmen from Pakistan moved into Jammu and Kashmir, he sought help from India, for which, as he stated in his letter to Lord Mountbatten, it was needed that he should sign an Instrument of Accession. It was under these circumstances that the Instrument was signed by the Maharaja on 26th October 1947. It was accepted by Lord Mountbatten, Governor-General of India, on 27th October 1947 in accordance with the Government of India Act, 1935. The contents of the Instrument may be summarized as follows:
The Government of India Act, 1935 was applicable to the Dominions of India and this Act provided that an Indian State may accede to the Dominion of India by an Instrument of Accession executed by the Ruler of the State and that, accordingly,
(a) The Maharaja was signing the Instrument of Accession, but strictly subject to the terms thereof.(Clause-1).
(b) The Maharaja accepted that the Dominion legislature may make law for the State regarding matters specified in the schedule attached. The schedule set out, the subjects of defence, external affairs, communication, and related ancillary matters. (Clause-3).
(c) The terms of the Instrument could not be varied by any amendment made in the Government of India Act, 1935 or the Indian Independence, 1947 unless such amendment was accepted by the Maharaja by a supplementary Instrument. (Clause-5).
(d) Nothing in the Instrument would be deemed to commit him to accept any future constitution of India or fetter has the discretion to enter into any arrangements with the Government of India under such future constitution. (Clause 7).
(e) His sovereignty, power, and authority and rights would continue over the State, except as provided by the Instrument. (Clause-8).
- Lord Mountbatten accepted the Instrument with the remarks that it was his Government’s wish that the question of the State’s accession should be settled by a reference to the people after law and order had been restored in the State.
- As can be seen from the provisions of the Instrument the Accession, it gave legislative powers to the Indian Parliament as regards only three specific subjects. It was also stated that the Instrument did not commit the Ruler in any way to accept any future constitution of India or to fetter his discretion to enter into arrangements with the Government of India under any such future constitution. The States own constitution was yet to be framed. In other words, the accession arrangements were subject to future arrangements at the discretion of the acceding State. Furthermore, the final status of the State was yet to be decided in light of resolutions of the Security Council of the United Nations (as discussed in paragraph 34 below). It was in light of these circumstances that article 370 of the Constitution was framed as a temporary provision to take care of the special circumstances of the State of Jammu and Kashmir. The Constitution of India came into force on January 26, 1950. To secure the condition of clause 7 of the Instrument of Accession, article 370 was incorporated in the Indian Constitution. No part of the Indian Constitution was applicable to Jammu and Kashmir State automatically except article 1 and article 370 itself. The language of this article was finalized after serious negotiations between the Government of India and the State. Before the Constitution had been finally promulgated, the Assembly had also been joined by four representatives of Jammu and Kashmir, which included Sh. Muhammad Abdullah and Mirza Mohammad Afzal Beg, two prominent leaders of Kashmir.
- Article 370 is reproduced below:
“ 370. Notwithstanding anything in this Constitution:
a. the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir,
b. the power of Parliament to make laws for the said State shall be limited to;
i. those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
ii. such other matters in the said Lists, as, with the concurrence of the Government of the State, the President may by order specify.
Explanation—For the purpose of this article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March 1948;
c. the provisions of article 1 and of this article shall apply in relation to this State;
d. such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify
i. Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
ii. Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of the Government.
2. If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
3. Notwithstanding anything in the foregoing provisions of the article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may notify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”
- The President, subsequently, in exercise of powers conferred under Article 370(3) had in 1952, on recommendations of the Constituent Assembly of Jammu and Kashmir, substituted the explanation to article 370(1) by stipulating therein that the Government of the State meant the person recognized by the President, on the recommendations of the Legislative Assembly of the State, as Saddar-e-Riasat of Jammu and Kashmir acting on advice of the Council of Ministers of the State for the time being in office.
- The President of India has “redesigned” article 370, through his order dated 5th August 2019, which reads as under:
“In exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the Government of State of Jammu and Kashmir is pleased to make the following Order:-
“1. (1) This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 2019.
2) It shall come into force at once, and shall thereupon supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time.
2. All the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:-
To article 367, there shall be added the following clause, namely:
“(4). For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir.
(a) References to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State.
(b) References to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir.
(c) References to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and
in proviso to clause (3) of Article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”.
- There is a general misperception that article 370 has been abrogated and that it was because of the recent legal developments that the State of Jammu and Kashmir became a part of the Indian Union. In fact, the Instrument of Accession had clearly stated that the State was joining the Indian Union, (but subject to fundamental reservations) Article 1 of the Constitution of India, read with its First Schedule, clearly states that the State of Jammu and Kashmir was a part of the Indian Union. Similarly section 3 of the Constitution of Jammu and Kashmir states that the State was an integral part of India. Article 370 has not been abrogated but only altered in a manner that completely destroys its structure. However, Article 370 remains a continuing part of the Constitution of India, and it was in the exercise of powers under this article that the President’s Order of August 5, 2019, has now been passed.
- The structure of Article 370 can be analyzed as discussed below.
Clause-1 of the article starts with the non-obstante words “notwithstanding anything in this Constitution”. In other words, nothing to the contrary in the Constitution could in any manner override or qualify the provisions of article 370. Regarding powers of the Indian Parliament to legislate, these were limited only to the matters in the Union and Concurrence legislative lists of the Indian Constitution that after “consultation” with the Government of the State were declared by the President to correspond to the matters specified in the Instrument of Accession. As regards other matters in these lists, legislation could also be made if the President so desired, after “concurrence” of the Government of the State. Regarding the application of the Constitution, this article in sub-clause 1(c) goes on to state that only the provisions of article 1 and article 370 itself shall be applicable in relation to the Constitution. However, as regards “other” provisions of the Constitution, they may also apply subject to such exceptions and modifications as the President may by order specify. As regards the matters specified in the Instrument of Accession, the President could issue such orders after “consultation” with the Government of India and as regards “remaining” constitutional matters “concurrence” of the Government of the State would be required. It was also stated that if the concurrence of the Government of the State had been given prior to the convening of the Constituent Assembly for framing of the Constitution of the State, such concurrence would have to be placed before the Assembly for such decision as the Assembly may take on the matter.
- Clause (3) of Article 370 is very material to the question of the legality of the changes that have now been made in article 370. This clause states that “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify”.
“Provided that the recommendations of the Constituent Assembly of the State referred to any clause 2 shall be necessary before the President issues such a notification”.
It should be noted here that this clause also starts with the non-obstante word “notwithstanding”, which means that this clause superseded all the other provisions of the article.
- From the foregoing, it can be seen that for certain acts “consultation” with the Government of the State, for certain other acts its “concurrence” and for certain specified acts “recommendation” of the Constituent Assembly was mandatory. The choice of three different words “consultation”, “concurrence and “recommendations” in article 370 shows that the makers of the Constitution were very sensitive to the question of involvement of the people through their representative institutions, as well as the scope of their involvement. Therefore, the meaning of the terms “Government of the State” and “Constituent Assembly” is of utmost importance.
- From the concept of the “Government of the State” and “Constituent Assembly,” it is clear that the nature of such Government and the Assembly had a critical role. A legislative assembly is a democratic entity created by the electorate and, as such, represents the will of the people acting through such assembly and the Government chosen by it. If the nature of the Government, duly empowered by its people to act in the matter, is changed to an entity that is non-representative then the entire spirit of the concept of Government, as visualized in article 370 is destroyed. At present, the State of Jammu and Kashmir is under Presidential rule. Its elected government has been dismissed and it is under Governor’s rule. The Governor is a nominee and agent of the President. During Presidential rule, the Union assembly can exercise the powers of the suspended state assembly. No representative institution of the people of the State, neither the Government nor the Assembly exist. The “concurrence” of the Government under these circumstances would not be a concurrence of the people of Jammu and Kashmir, acting through their chosen representatives but, in fact, the left ear of the President would be hearing what is said in his own right ear (the Governor). Similarly, the Constituent Assembly of the State was the assembly that had been mentioned in clause 2 of article 370. This Assembly started its deliberations in the year 1950. The Constitution was adopted on 17th November 1956 and came into force on 26th January 1957. This assembly has ceased to exist.
- Article 3 of the Jammu and Kashmir Constitution stated that “The State of Jammu and Kashmir is and shall be an integral part of Union of India.”. However, it was stated in Article 5 that Jammu and Kashmir Legislative Assembly had exclusive legislative power in all matters except those with reference to which Parliament of India had the power to make laws for the State under the provisions of the Constitution of India. Here it may be noted that under the Instrument of Accession the power to make laws granted to the Indian legislature was limited to the subjects of defence, foreign affairs, and communication. However, the President under article 370(1) could extend the scope of the Parliament to make laws for the State in the manner stated in paragraph 14 above. Article 147 of the State Constitution stated that “No bill shall be introduced or moved in the State Legislative Assembly to amend or change above mentioned articles 3 & 5”.
- The State of Jammu and Kashmir came to be the only Princely State that had its own Constitution and its own flag. It signed only an Instrument of Accession, giving powers to the Indian Union limited to defence, external affairs, and communications. The State never signed any merger agreement with India. The instruments created only a confederation for limited purposes.
- As discussed earlier, the structure of article 370 shows that certain decisions could be taken pursuant to the authority granted by that article itself and the President could act after “consultation” with the State Government or with its “concurrence”, depending on the nature of the matter “Consultation” would mean that he was free to take his own decision, but only after he had obtained the views of the State Government. As regards “Concurrence”, the decision had to be taken by him and the State government acting together. In presence of powers under clause-1 of article 370, various provisions of the Constitution of India were modified from time to time for application in the State. More thana hundred modifications were made by, the Constitution (Application to Jammu and Kashmir) Order 1954, P.O.48between the period 1954 to 1994, 47 Presidential Orders were passed under article 370.
- In fact, it was under this Order that Article 35-A was introduced in the Constitution under which the legislature of the State could determine who could acquire immovable property in the State, seek employment under it or claim any scholarship or other aid from the State.
- One needs to focus specifically on certain clauses of article 370. Sub-clause (b) of Article 370(1) relates to the power of Parliament to carry out legislation for the State of Jammu and Kashmir, subject to the limitations highlighted earlier.
Sub-clause (c) states as follows:
“The provisions of article 1 and this article shall apply in relation to that State”. The word “this” article in the sub-clause means article370 itself. Article 1 states that the State of Jammu and Kashmir and Kashmir was a part of the Indian Union.
Sub-clause (d) which dealt with matters relating to the Constitution itself, and not ordinary legislation covered by sub-clause (b)), states as below:
“such of the other provisions of this Constitution shall apply in relation to that state subject to such exceptions and modifications as the President may by order specify
i. Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
ii. Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of the Government.
- The most important point to note here is that the power of the President to make order under sub-clause (d) of Article 370(1) is only as regards “other provisions” of the Constitution. When the word “other” is read with the language of the immediately preceding sub-clause (c) (which refers to provisions of article 1 and article 370) it stands out clearly that the “other provisions” could not conceivably include article 1 and article 370. Therefore, as regards article 1 and 370, there could be no question of making modification with the consultation or concurrence of the Government of the State. In the present case the presidential order dated 5th August 2019 (C.O.272) which has the effect of altering the language of article 370 itself, is stated to have been issued with the “concurrence” of the Government of State of Jammu and Kashmir. Article 370 clause 1(c) stated the only article 1 and article 3 of the Constitution shall apply in relation to the State. Under the new Presidential Order “all provisions of the Constitution” have been made applicable.
- In the present cases amendments have been made in article 367 of the Constitution, which is the interpretation clause, The power to modify article 367could not be used in the manner in which it has been done, although theoretically article 367 would fall within the scope of “other provisions” of the Constitution. The interpretation clause could not be changed by making such amendments and introducing new interpretations that the practical complexion of article 370 itself would change. The additions made in Article 367 under the Presidential Order amount to a modification of article 370 itself, as highlighted earlier. Such an act would constitute, what has been termed by the superior courts as “a fraud on powers”. If you are told not to enter through any door that does not mean you may enter through a window. The provisions of clause (1)(c) have been made nugatory by the new provision in article 2 of the Presidential Order which states that “all the provisions of the Constitution” shall apply in relation to the State, through sub-clause (c) did not fall within the scope of clause (d) that covered only “other” provisions of the Constitution. Clause (1) (c) had limited the application of the Constitution only to article 1 and article 370. It must be noted that when the main body of article 370 had been altered earlier in 1952 by introducing the words “Sadar-e-Riasat”, this was done under sub-clause (3) on recommendation of the Constituent Assembly of the State and not on the basis of “concurrence” of the Government under sub-clause (1), as has been done now.
- Here it would be important to focus on as to what was the legal status of the two parties, India and the State of Jammu and Kashmir, at the time when the Accession took place. India was a Dominion under the British Crown while, pursuant to the Independence Act, 1947, the State of Jammu and Kashmir became was an absolutely sovereign State. India did not succeed to the paramountcy status of the British Crown. The relationship that was struck between the two states, India and the State of Jammu and Kashmir, was on the basis of a voluntary compact between two independent sovereign powers which created a relationship similar to what would be created by a treaty between two countries or by a contract between two parties. In such relationships if one party commits a breach of the agreement which is of such a fundamental nature that it negates the essential basis of the relationship, the other party can treat such breach as a “repudiatory breach” which entitles it to put an end to the compact. The Instrument of Accession was the grant of certain powers by the State to the Union, and not the other way round. The structural changes made by India in article 370 and enactment of the Jammu and Kashmir Re-organization Act, 2019, read together, have the effect of bringing to end the very existence of the State of Jammu and Kashmir, making it a Union Territory and putting an end to the Constitution of the State of Jammu and Kashmir and its laws. It was section 3 of the Kashmir Constitution which stated that “the State of Jammu and Kashmir is and shall be an integral part of the Union”. Article 1 of the Constitution of India states that India was a Union of States. Jammu and Kashmir, by ceasing to be a State is, therefore, no more a part of the Indian Union. It is now merely a part of the “Territory” of India in terms of clause 3 of article 1, but is not a part of the Union in terms of clause (1). India has annulled the basic arrangements that had created the confederal relationship between India and the State. It has negated the fundamental conditions subject to which the State had signed the Instrument of Accession in 1947. Under these circumstances, the people of Jammu and Kashmir could legitimately assert that the union between the people of Jammu and Kashmir brought about by the State Ruler and the Government of India in 1947 had come to end and that, henceforth, the presence of India in the territories of Jammu and Kashmir was not the presence of a constitutional Government by consent but was the presence of an occupation force.
- The foregoing discussions essentially represents a purely logical analysis as regards the scope of article 370 and the effect of the changes that have been brought about by redesigning of this article as well as by the operation of the Jammu and Kashmir Re-organization Act, 2019. The entire question of the validity of the acts of the Government of India and its Parliament would be decided by the Supreme Court of India. It is not possible to predict as to what would be the view adopted by the Supreme Court. Matters at the Supreme Court level do not necessarily follow a “logical analysis” of the nature discussed above. The Courts, in their decisions, sometimes have recourse to broader principles that go beyond matters of pure formal legality.
- It must be remembered that judicial decision making can sometimes be an act of “ratiocination” (a logical progression from basic premises) and sometimes an act of “justification” / “rationalization” (where a court reaches a determination as to what should be the proper decision under the given circumstances of a case, and then goes ahead to justify the decision by citing various reasons in its support).The essence of these two approaches towards law: the “logical” and “extra logical” approaches, can be gathered from what has been identified by two leading proponents of legal positivism and American legal realism schools of thoughts, namely H L A Hart and Karl Llewellyn. According to Hart one of the meanings of positivism “being bandied about” in modern jurisprudence is the___, contention of the positivists that “a legal system is a ‘closed logical system’ in which correct legal decisions can be deduced by logical means from predetermined rules without reference to social means, policies, moral standards” Karl Llewellyn commented that rationalization represents a “trained lawyers’ arguments made by the judges (after the decision has been reached) intended to make the decision seem plausible, legally decent, legally right, to make it indeed, legally inevitable”. To similar effect is the comments of two proponents of critical legal studies movement, Hutchinson and Monahan, “Law is not so much a rational enterprise as a vast exercise in rationalism. Legal doctrine can be manipulated to justify an almost infinite spectrum of possible outcome”. At the end of the day, in practical and effectively operational terms where a dispute arises as to the meaning of any provision of law, its final interpretation comes to be determined by not what is written in the books, but by what the judges declare it to be.
- In the present case if the Indian Supreme Court worked with a “nationalistic” frame of mind (as discussed in paragraph 8 above) and arrived at a determination that the entire question was essentially of a political nature and that the court should defer to the views of the executive and the legislative branch of the Union that it was in the best interests of India and its people that the territory of Jammu and Kashmir should be fully integrated into India like the other States and Union territories, then it should not be doubted that the Supreme Court would be in a position to justify its decision. On the other hand, if the Court proceeded on a purely objective basis and applied strict tests of legality and legitimacy, there is a strong possibility that the acts of the Government and the Indian legislature, under challenge, might be set aside as illegal and illegitimate.
- The case before the Supreme Court of India would pose a tremendous challenge for the advocacy skills of the lawyers on either side of the legal debate. The case would also represent one of greatest legal and moral challenges ever faced by the Supreme Court of India, which enjoys a great tradition of giving landmark judgments affecting the course of the India’s Constitutional developments and its politics.
- The events of invasion of Jammu and Kashmir by the tribal lashkars in 1947 and intervention of the Indian troops led to a faceoff between the armed forces of India and Pakistan. The matter was brought up by the Prime Minister of India before the Security Council of the United Nations. In its resolution dated 21st April 1948, the Security Council recommended that measures be adopted by the Governments of India and Pakistan to bring about cessation of all fighting and to create better conditions for a free and impartial plebiscite to decide whether the State of Jammu and Kashmir should accede to Indian or Pakistan. By its resolution of 5th January 1949, the United Unions Commission for India and Pakistan, after acceptance of the respective Governments, laid down the principles for holding a plebiscite. It was decided that the plebiscite would be organized and conducted by a Plebiscite Administrator, nominated by the Secretary General of United Nations. However, for various reasons, the plebiscite is yet to take place.
- A very important document relating to the Kashmir dispute is the Simla Agreement, between the two Governments, signed on 2nd July, 1972. This Agreement was ratified by the parliaments of the two countries. This Agreement stated “That the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries” and “That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations” and that “the basic issues and causes of conflict” between the two countries should be resolved by peaceful means. It was also stated that “in Jammu and Kashmir the line of control resulting from the ceasefire on December 17, 1971, shall be respected by both the sides without prejudice to the recognized position of either side”. It was also stated that the representatives of the two countries would meet to discuss the modalities and arrangements for establishment of durable peace between the two countries and for “a final settlement of Jammu and Kashmir”. It has to be kept in mind that the Simla Agreement is an extremely important document in which the governments and legislatures of both the countries recognized that the matter of Jammu and Kashmir was a disputed question, which required final settlement through peaceful means. Here it is interesting to note that although it was military hostilities over Jammu and Kashmir that had led to the 1965 war, there is no specific reference whatsoever to Jammu and Kashmir in the subsequent peace treaty: “The Tashkent Declaration, 1966”, although it does state that the respective countries reaffirmed their obligations under the United Nation Charter and would settle their differences through peaceful means.
- The Kashmir dispute constitutes a great tragedy not only for the people of Jammu and Kashmir but also for the people of India and Pakistan. The partition of British India should have operated in the same manner as would have been the case of two brothers living in one house who decide to set up separate accommodations due to certain changes in the circumstances. Separate accommodations would not mean that they should have become enemies. It is because of the Kashmir dispute that the relationship of the people of India and Pakistan, rather than being a relationship of family members living in separate houses, has become a relationship of hate and bitterness. It requires great statesmanship on both sides of the border to bring an end to this continuing tragedy.
(Joint Research By Mohammad Akram Sheikh, Senior Advocate Supreme Court of Pakistan & Tariq Kamal Qazi, Advocate Supreme Court)