By Justice (r) Manzoor Gilani
Basis of Kashmir- India relationship
Basis of Indian claim on Kashmir is its ruler’s accession instrument dated 26/10/47 incorporated in article 370 of its constitution. Its constitution applies to the state through the special mechanism agreed by the state constituent Assembly and union of India through article 370 (which was 306 A in draft constitution). This mechanism is allowed by its constitution under article 2.
Art 370 allowed extending only such provisions of the constitution through a presidential order with such modifications & exceptions from the union list, as corresponded to instrument of accession after consultation, and other provisions, after consent of the state government. The article is special and temporary to be abolished by president of India subject to “recommendation of state’s constituent Assembly “when relations are finally determined, not unilaterally.
That is why only article 1 of the constitution was extended to the state under article 370, which defines the territories of India , On 26th of January 1950, when constitution of India was enforced though, Sheikh Abdullah, the sole leader and prime minister of Kashmir, had serious reservations against the draft passed by Constituent Assembly, as it ran counter to instrument of accession which had delegated the powers of “ Defence, Foreign affairs and communication “ only to the union with a further stipulation that, “ Nothing in this instrument should be deemed to be committed in any way as to acceptance of any future constitution of India”. Rest was left for constituent assembly to determine. This was the first betrayal after manoeuvred accession.
State visa vis Indian constitution
State constituent assembly was elected in 1951. Sheikh Abdullah was managed to enter into an agreement with the union, called Delhi agreement of 1952. He was dismissed and detained soon thereafter in August 1953. The constituent assembly framed state constitution in 1954, dissolved in 1956 and the constitution was enforced in 1957. This was 2nd blatant betrayal.
In pursuance of Delhi agreement, a-flux of Indian constitution was extended to the state through constitutional application order 1954 on May 14, which also included art 35 A, guaranteeing a nominal special status. This was endorsed by constituent Assembly before its extinction. But 47 other orders were issued thereafter extending 268 out of 395 articles and 95 entries out of 97 of union list. None of them was approved by Constituent Assembly. State Assembly in its autonomy report after Indra – Abdullah accord of 1975, unanimously demanded their scrapping and restoration of pre-1953 position, but report was thrown in dust bin, support to him as chief minister was withdrawn by Congress Govt of India. This is the third betrayal.
Special status enshrined in article 35 A, conferred the power upon state Assembly to define the rights of the residents of state called state subjects, to the exclusion of all others to acquire land, employment, scholarship in the state. This was challenged from day one by Sang Parwvar and remained part of its constitution as discriminatory and a challenge to the integrity of India, although there are eight other Indian states enjoying similar protection under articles 371 to 371H, they do not prick their conscience being Hindu states.
On his second term as PM with its powerful mandate, Modi lead BJP government ventured to make its dream of abolishing article 370 and all other privileges to the state, come true, which includes article 35 A also.
The president’s order of 5th August issued under article 370 very smartly applied entire constitution of India to the state by abolishing its special status, depriving it of its own constitution, flag, rights and privileges of its residents without expressly mentioning as such by amending article 367 of its constitution which defines different terms used in the Indian constitution.
5th August order ordains to read the “constitution” as “Constitution of India” “governor” as the “government of the state” and the “legislative Assembly” as the constituent Assembly of the state under article 367. Later to pave the way for the abrogation of article 370 by expected BJP dominate Assembly. The order is a fraud upon the constitution.
Through a bill presented in Raja Sabah on the same day for reorganisation, the state was downgraded into two union territories namely “Ladakh”, comprising Kargil & Leh and “Jammu & Kashmir”. Former without and later with legislative Assembly. The bill has become Act of parliament now.
Besides UN SECURITY COUNCIL RESOLUTIONS & commitments of its leaders in parliament and around the world to hold a plebiscite for ascertaining the will of people for future dispensation of the state, the presidential order as well as the reorganisation Act, are against the constitution of India and state constitutions as well. They don’t “correspond to instrument accession” and are issued “without consultation and consent of government of the state”, which is not in seat, as the assembly stands dissolved and the government is run by the governor as representative of union under president’s rule. The onslaught is made by detaining leaders of all shades of state including more than eight thousand citizens, locked in jails out of state by enforcing curfew and placing inmates locked in houses guarded by army personnel’s and blocking all communication channels since 4th August.
Constitutionality & Propriety of action
Article 3 as applicable to state, puts an embargo even on the parliament from “altering the name or boundary of a state or increasing or diminishing its area without consent of the legislature of the stare”. It has changed the name, homogeneity, identity and status of the state and its subjects. It has changed the nature and basis of admission of state in the union through article 370, which was held sin qua non of relationship of state with India by Supreme Court in several cases.
Though till date remaining a part of the constitution, Article 370 is rendered redundant. It has changed the basic structure of constitution of India, which is never allowed by the Supreme Court of India, hence before. If the brute nationalism and vandalism of Modi do not overwhelm Supreme Court judges, the 5th August actions cannot stand the test of constitutionality.
The 5th August, alleged legal instruments, are like the surreptitious accession of the state of J&K manured by India in Oct 1947 by intimidating ruler of state. It brazenly integrated the state in mainland amounting to annulling the constitutional relationship of the state with India which rested solely on instrument of accession, which was itself subjected to ratification by the people of state through referendum as per the terms of admission of accession instrument by the Governor-General of India under section 7 of Indian Independence Act 1947. India is now an occupation force in the state holding the land and people by force of its army.
Indian claim of the action being its internal matter is a hoax. When an alleged internal matter transcends and affects people beyond borders, when it threatens peace and security of the region and world, it is international matter. More so, when it was regulated by UN RESOLUTIONS from its inception and any dispensation of state except by plebiscite is disallowed by security council resolutions dated 30-3-1951 and 24-1-1957.
India is bound by article 253 of its own constitution to incorporate and implement these resolutions by a parliamentary law or come forward honestly for its negotiated settlement or international arbitration under article 51 of its own constitution.
Consequences of action
All bilateral agreements for settlement of Kashmir issue between India and Pakistan including Simla, Lahore and Islamabad declarations, except to the extent they are acted upon, stand unilaterally annulled by India. The line of control admitted under Simla agreement stands converted into cease-fire line visualised by the ceasefire agreement of 1949. Indian position in the state reverts to 26th of October 1947.
What to do?
The government of Pakistan must declare to be absolved of all such bilateral agreements with India which hampers in its endures internationally and inform to the UN Security accordingly;
If it doesn’t, it should include the entire state as its territory under article 1 of its constitution on the strength of standstill agreement offered by ruler of state on 12/8/47 and accepted by Govt of Pakistan on 15th of August 1947 and , resolution of accession of state with Pakistan passed by the sole representative political and parliamentary party of state All Jammu& Kashmir Muslim conference on 19th of July 1947, subject to UN-supervised referendum;
Parliament of Pakistan must call upon the Govt of Pakistan to take appropriate measures for the liberation of state from Indian occupation like the one passed by the Indian parliament in 1994;
It must take appropriate measures to call upon the UN SECURITY COUNCIL to land peacekeeping forces in the state like the East Timor action in 1975, to save life, honour and liberty of people under curfew and siege of Indian forces, and pending that;
It should send doctors, medicine, food, water and install its communication network in the state;
Government of Pakistan must resort to rigorous and vehement diplomacy in power centres of world, international and regional political and economic alliances, through ex-pat Kashmiris and Pakistanis;
Pope Francis of Vatican must be specially approached to intervene and impress upon Christian world to bring pressure on India;
All those who work voluntarily or officially must understand the niceties of the Kashmir case from Kashmiris, Pakistanis and Indian point of view and ground realities;
If going gets tough, Pakistan must act as America acted in Afghanistan and now in the Middle East to save eight million people of the state;
If this too is not acceptable, Pakistan should declare AJK as representative Govt of the people of the state under its defence umbrella, and facilitate it to launch international campaign for liberation of the besieged part of state;
World opinion hears, favours and helps, as it does now, the victims of tyranny in Indian held Kashmir, more than claimants, as it did not in past seventy years;
Pakistan should rest assure that Kashmiris are all out against India. The claimers of ILHAQ to Pakistan and AZADI of state should mean article 257 of Pakistan constitution that it includes “ILHAQ & AZADI” given the words “WISHES OF THE PEOPLE OF THAT STATE”. People of state are final arbiters once they get to gather after Indian occupation is overthrown. Join hands-on it first and leave all other overtures.
It is getting late, do it before the Kashmiris are annihilated by Indian brute force.