Ahmer Bilal Soofi

Published Hilal Magazine

The recent round of talks between Prime Ministers Nawaz Sharif and Narendra Modi has opened up the possibilities for resolution of some of the historic and long-standing issues bedeviling South Asia, including Kashmir, which prominently features as an agenda item in the comprehensive bilateral dialogue framework agreed upon by Pakistan and India in December, 2015. No doubt, this represents a rare political moment, which no one should oppose, provided our core national interests are also safeguarded.

In the backdrop of the Kashmir dispute and the recent Indo-Pak talks, an important game-changing legal development has materialized. This development, in the form of a judgment pronounced by the Srinagar High Court in October 2015 in Ashok Kumar v. State of J&K, has for all legal and practical purposes revived Kashmir as a bilateral dispute between Pakistan and India. Accordingly, it has also unlocked some interesting options for Pakistan.

Thus far, while exercising executive control over the erstwhile State of Jammu & Kashmir, both Pakistan and India have also attempted to claim title to its territories by incorporating it into their respective constitutions.

In this context, Pakistan’s Constitution contains Article 257, which states:

“257. Provision relating to the State of Jammu and Kashmir. When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State.”

On the other hand, India’s Constitution contains Article 1 and Article 370, which state:

“1. Name and territory of the Union.—(1) India, that is Bharat, shall be a union of States.

(2) The states and the territories thereof shall be as specified in the First Schedule.

(3) The territory of India shall comprise –

(a) …

(b) the Union territories specified in the First Schedule;[Entry 15 of First Schedule says: Jammu and Kashmir:- The territory which immediately before the commencement of this Constitution was comprised in the Indian State of Jammu and Kashmir] and(c) …” 

“370. Temporary provisions with respect to the State of Jammu and Kashmir.—

 (1) 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 purposes of this article, the Government of the State means the person for the time being recognised 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 Maharajas Proclamation dated the fifth day of March, 1948 ;

 (c) the provisions of Article 1 and of this article shall apply in relation to that 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: 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.  

 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 that 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 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 recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

Whereas Pakistan has steadfastly held onto its principled position of holding free and impartial plebiscite in Kashmir, India, on the other hand, has been attempting to water down Article 370 of its Constitution to argue integration of Indian-held Kashmir into the territories of the Union of India. Not surprisingly, therefore, the Modi government’s position upon assuming the reins of power was to repeal or amend Article 370.

Within this context, the Srinagar High Court’s interpretation of Article 370 in Ashok Kumar v. State of J&K has delivered a serious jolt to the Modi government’s intentions. This judgment, rendered in October, 2015 by the Court comprising Justices Hasnain Massodi and Janak Raj Kotwai, clearly holds that the temporary status of Indian-held Kashmir within the Union of India will forever remain temporary. The Court, therefore, has crucially modified the Indian government’s political position by declaring as legally incorrect the viewpoint that Article 370 of the Indian Constitution has been whittled down and that gradually by the flux of time Indian-held Kashmir has been amalgamated into the territories of the Union of India.

 

For long, distinguished academics and scholars like AG Noorani have been of the view that the temporary status of Indian-held Kashmir under Article 370 of the Indian Constitution cannot be altered unless approved by the constituent assembly of the Indian-held Kashmir. Critically, what had hitherto constituted merely academic viewpoint has now been granted legal sanctification by the Srinagar High Court.

The kernel issue in Ashok Kumar v. State of J&K was whether or not certain amendments made to Article 16 of the Indian Constitution were applicable to Indian-held Kashmir. The Indian government unsuccessfully asserted before the Court that a combined reading of Article 1 of the Constitution of India, which includes Indian-held Kashmir in the territories of Union of India, & Constitution (Application to Jammu and Kashmir) Order 1954, results in ipso facto application of all amendments made to the Constitution of India to the territory of Indian-held Kashmir.

While dismissing this line of argument, the Court traced the history of accession of Indian-held Kashmir with the Union of India and observed that the attending circumstances of accession of Indian-held Kashmir to the Union of India clearly indicates that, unlike other states that acceded to the Union of India, a special constitutional status for Indian-held Kashmir was envisioned. The Court, therefore, found the Indian government’s claim to treat Indian-held Kashmir at par with other states that acceded to it, to be legally incorrect and baseless.  In no uncertain terms, it held that:

“ 21(i). The text of Instrument of Accession, though, similar to such Instruments signed by other Princely States…yet paragraphs 4 and 7 of the Instrument of Accession and the Communication whereby Governor General accepted the accession, made it clear that Dominion of India did not treat accession by the State to Dominion of India, in the manner it treated accession made by other Princely States to the Dominion. It was made sufficiently clear that the State was to stand on a different pedestal and to be given distinct and different, status as regards constitutional powers, it was to enjoy after accession.”

Moreover, the Srinagar High Court significantly found that Article 370 can cease to have effect, only and only when the procedure prescribed in proviso to clause 3 of Article 370 is met and not otherwise. In this regard, even the Senior Assistant Advocate General conceded in his arguments before the Court that any constitutional provision or amendment to such provision shall only be applicable to Indian-held Kashmir if the procedure prescribed in Article 370 is followed and not otherwise. This procedure unexceptionally requires a notification from the President of India following a recommendation from the constituent assembly of Indian-held Kashmir. Since, however, the constituent assembly had not made any such recommendation before its dissolution on January 25, 1957, the Court held that Article 370 has consequently attained a permanent status within the framework of the Constitution of India. To this effect, the Court specifically stated that:

“ 36. … the State of Jammu and Kashmir while acceding to India, retained limited sovereignty and did not merge with Dominion of India, like other Princely States that signed instrument of Accession with Dominion of India. The State continues to enjoy special status to the extent of limited sovereignty retained by the State. The limited sovereignty or special status stands guaranteed under Article 370 of the Constitution – only provision of the Constitution that applied to the State ex-propriogorige or on its own. The only other Constitutional provision made applicable by Article 370 of the Constitution of the State is Article 1. No other provision of the Constitution as provided under Article 370 (1), would be applicable to the State except, by Presidential order in consultation with the State except, in case the provision is akin to subjects delineated in Instrument of Accession and with concurrence of the State, in case it does not fall within ambit of Instrument of Accession. It follows that Article 370 though titled as “Temporary Provision” and included in Para XXI titled “Temporary, Transitional and Special Provisions” has assumed place of permanence in the Constitution. It is beyond amendment, repeal or abrogation, inasmuch as Constituent Assembly of the State before its dissolution did not recommend its amendment or repeal…“

Importantly, the Court’s reasoning in Ashok Kumar v. State of J&K is in line with the prior consistent view of the apex courts in India. Earlier in 2015, another division bench of the Jammu and Kashmir High Court in Bhupinder Singh Sodhi v. Union of India had also recognized the sovereignty of the Indian-held Kashmir. That judgment, pronounced by Justices Muzaffar Hussain Attar and Mohammad Magrey, held that: “… The sovereignty of the State of J&K under the rule of Mahraja, even after signing of Instrument of Accession and in view of framing of its own Constitution, thus ‘legally and constitutionally remained intact and untampered.’” Likewise, in Prem Nath Kaul vs. The State of Jammu and Kashmir (AIR 1959 SC 749) the Supreme Court of India concluded that the mere signing of instruments of accession did not affect the sovereignty of Maharaja of the State of Kashmir.

The surgical and consistent jurisprudence on Indian-held Kashmir’s special status evolved by the Indian apex courts cannot be ignored or reversed lightly. Nevertheless, India has been claiming before the international community that Indian-held Kashmir has been amalgamated into the territories of the Union of India and hence it will never relinquish its control over Indian-held Kashmir. This claim though, as abundantly clear from judgments mentioned above, is without any legal substance or merit and has no approval of the judicial organ of the Indian state itself.

By foreclosing any legislative efforts by the Indian government to integrate Indian-held Kashmir with the Union of India, these judgments crucially serve as judicial and constitutional reminders that the title to the territory of Kashmir remains an outstanding and unresolved dispute between Pakistan and India. They, thus, reaffirm Pakistan’s position on Kashmir under international law, while contradicting the political position adopted by Prime Minister Modi’s government.

So far, to our own detriment, these judgments have escaped the serious attention and scrutiny of the Pakistani interlocutors. At the United Nations General Assembly Third Committee’s session in November 2015, Pakistan rejected the Indian claim that Kashmir is its integral part by solely relying on Security Council resolutions. The recent judgment by the Srinagar High Court, and the earlier jurisprudence of the apex Courts in India as well as its legal significance vis-à-vis India’s diplomatic position were not brought to the attention of the Committee. To bolster our position on Kashmir, Pakistan must cash in on these legal pronouncements in the future and seriously consider bringing them to the attention of the United Nations Secretary General’s office.

The Srinagar High Court’s judgment and other relevant jurisprudence discussed in this article represent a stinging legal rebuff by India’s own judicial organs to its diplomatic position that Kashmir is no longer an issue germane for bilateral discussions between Pakistan and India. Through the prism of this legal landscape, Kashmir very much stands revitalized as a bilateral dispute and Prime Minister Modi’s government has no choice but to resolve it through the dialogue process with Pakistan.