THE prime minister’s recent statement offering an unconditional dialogue with India is a positive political move to decrease the escalating tension between India and Pakistan. However, there is also an important legal development in the context of which it should become clear to the Modi government that dialogue on the core issue of Kashmir cannot be indefinitely avoided and that it has become a legal necessity to find a solution to the territory of Kashmir that India occupies.
The said legal development, hardly noticed on the Pakistani side, is the recent judgement by the Srinagar High Court interpreting Article 370 of the Indian constitution. This judgement has blocked the Modi government’s intentions to fully integrate India-held Kashmir into the territory of the Union of India. In fact, in 2015, another, similar judgement was delivered by the Srinagar High Court comprising a different bench. Both the judgements delivered by the court arrived at the same conclusion, effectively that the territory of India-held Kashmir retains an element of sovereignty and cannot be integrated into India at all. These views are based on the interpretation of Article 370 of the Indian constitution.
The Srinagar High Court bench comprising Justice Hasnain Massodi and Justice Janak Raj Kotwal in ‘Ashok Kumar vs State of J&K’ rejected the political position of the Indian government while interpreting Article 370 of the Indian constitution and, instead, held that the status of India-held Kashmir with the Union of India would remain temporary forever. In other words, the position taken by the Indian government that Article 370 has been watered down and India-held Kashmir, by the flux of time, stands integrated into the territories of India is legally incorrect. This is a serious jolt to the Modi government’s stance on Kashmir.
The Srinagar High Court found that Article 370 of the Indian constitution can cease to have effect only if the procedure prescribed in the proviso to clause 3 of Article 370 is met and not otherwise. The said clause requires a notification from the president of India following a recommendation from the Jammu & Kashmir constituent assembly for Article 370 to cease to have effect. Since such a recommendation had never been given by the constituent assembly before its dissolution, the Srinagar High Court held that “Article 370 … has assumed a place of permanence in the Constitution. It is beyond amendment, repeal or abrogation, inasmuch as the Constituent Assembly of the State before its dissolution did not recommend its amendment or repeal.”
Two judgements by the Srinagar High Court have shocked the Modi government.
The Srinagar High Court clearly concedes that Article 370 of the Indian constitution has its roots in paragraph four and seven of the Instrument of Accession which in plain words means that Article 370 is nothing but the documentation of the conditions that were to be fulfilled under the instrument. The high court further concludes, in terms reproduced here, that Article 370 encapsulates the special relationship between the Union of India and India-held Kashmir.
“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….”
The other judgement of the Srinagar High Court this year which acknowledged the sovereignty of India-held Kashmir is ‘Bhupinder Singh Sodhi vs Union of India’ by Justice Muzaffar Hussain Attar and Justice Ali Mohammad Magrey. The judgement specifically states that the “…The sovereignty of the State of J&K under the rule of Maharaja, even after signing of Instrument of Accession and in view of framing of its own Constitution, thus ‘legally and constitutionally remained intact and untampered’. ”
Earlier, the Supreme Court of India in ‘Prem Nath Kaul vs. The State of Jammu and Kashmir’, had concluded that the mere signing of instruments of accession did not affect the sovereignty of the maharaja of Kashmir. The view of the Supreme Court of India in judgements on Article 370 of the Indian constitution has been surgically legal and consistent and clearly at variance with the political position taken by Modi’s government at present.
Despite these judgements, India has indicated to the international community that India-held Kashmir has been integrated into India, and Kashmir is no longer an issue and there is no way that India will relinquish its control over India-held Kashmir. These two successive Srinagar High Court judgements are quite shocking for the Indian government, as they concluded that the presumed title or control of India over India-held Kashmir does not exist given the judicial interpretation of Article 370.
Under international law, these judgements are in conformity with UN resolutions on Kashmir and reaffirm Pakistan’s position that Kashmir continues to be an outstanding dispute. Any legislative effort by the Indian government to integrate India-held Kashmir into the Union of India cannot be successful in light of the judgements of the Srinagar High Court. The judgements are a timely reminder that the Kashmir dispute is still very much alive. Only days after the judgement, the Indian Supreme Court in another matter turned down a public interest litigator request to scrap Article 370.
Pakistan has the option to bring these important legal developments to the attention of the office of the UN secretary general, who recently supported India-Pakistan talks, since the judgements serve as a reminder of the need to resolve the dispute that India is avoiding bringing up in bilateral negotiations.
Now that integrating India-held Kashmir is legally impossible for India, the only way forward is the resolution of the Kashmir dispute for which India and Pakistan and the Kashmiri leadership need to sit and talk. Hence the offer from Pakistan’s prime minister is important.
The writer is ex-caretaker federal law minister.
Published in Dawn, December 1st, 2015