Justice (retd.) Manzoor Gilani, Muzaffarabad*
From the outset, Article 370 was asymmetrical in the federal structure to the extent of three subjects and those approved by the Constituent Assembly. For the rest, local sovereignty rested with the state, as the princely state had before August 15, 1947, vis-à-vis the British government.
It was like the states of the US which can claim more autonomy and have their constitutions but are not surrendered. This is exactly what was proposed by Indian Prime Minister P V Narasimha Rao and is the essence of Article 2 of the Indian Constitution.
The ruler of the state adhered to the “conditions of accession” enshrined in Article 370: “The powers of Parliament shall be limited to the matters specified in the Instrument of Accession (IOA).”
The Instrument of Accession was limited to only three subjects under Clause 3. Clause 7 of the IOA clearly states that “nothing in this Instrument should be taken as a commitment to adopt any future Constitution of India.”
The only exception has been framed under clause (b) (i) or (ii) of Article 370 (1) with the “consultation or consent “, as the case may be. For the cession/repeal of Article 370, the recommendation of the Constituent Assembly is a “condition precedent” under sub-article (3) of Article 370. It is hypothetical to say that the recommendation is not binding and can be ignored.
The Indian Supreme Court’s judgement, from any angle, is a travesty of the Constitution to facilitate the return of the BJP in the 2024 elections, according to neutral Indian public opinion.
Considering the facts and the Constitution, the powers of the court justified the restoration of statehood to hold elections and ascertain the views of the people’s representatives. The assurance given by the Solicitor General was a reiteration of the statements made by the Home Minister and the Prime Minister in Parliament. Can this be a substitute for internal sovereignty or autonomy?
The abolition of Article 370, even if unconstitutional, could be digested if an asymmetrical structure like in other special states can be created for Jammu and Kashmir to restore the old identity of residence, land ownership laws, local jobs, religious and cultural protection, and similar other rights given the realities and state subject rules of 1927. Peace in the valley can never be achieved unless wounds of people are healed by respecting their historical identity.
The government’s ideology converged with judicial thinking as it did not want J&K to be on par with other special states.
In the late 1970s under Pakistani President General Mohammad Zia-ul-Haq, fundamentalist ideology converged in the Pakistani state, but I am happy to see temples, gurdwaras, churches being renovated, and land being provided for Shamshan Ghat (Cremation Ground) where Hindus and Sikhs reside at state expense in Islamic Republic of Pakistan. What has gone wrong in the secular democratic republic of India?
According to Article 356, the power of the state legislature lies with the parliament but not to change its structure except to meet the exigencies necessitated by the circumstances during the emergency. This may be true for the other states because they come under Part VI of the Indian Constitution, but not for J&K, which comes under its own Constitution. True that Article 3 cannot be amended by the State Legislature, it cannot be amended by Parliament even as extended to state with modification, to downgrade it in the Union Territories.
Apart from doing injustice to the state of J&K, which is stigmatised as a ‘devil’, it shakes the federal structure of India by setting a precedent that allows the Union Government to place a recalcitrant, dissenting or strong state government under the President’s rule, break it, reduce or enlarge its territory or divide it into Union Territories and delimit the constituencies for Parliament or the state as per their choice to achieve their political ends.
This method has been successfully tested in Kashmir; the non-Hindi/cow belt of India is also not safe. The suspension of 140 members of parliament is a classic form of democracy unfolding in India.
Following the Indian leadership, the Supreme Court also failed in its duty to honour the Constitution and the obligations of the fathers of the nation to the state, knowing full well that the Indian government is bent upon abrogating what was promised to Kashmiri leaders and instead unleashing physical and constitutional terror.
The judiciary has fallen out of favour with those in the world who placed hope in it. After Punjab, Kashmir and the North, terror has now crossed India’s borders against dissidents.
Judge Sanjay Kishan Koul’s heart-rending narrative is an insight into what is happening in the Kashmir Valley, irrespective of its religious composition, irrespective of its irrational agreement with the majority opinion. He has very emphatically suggested the least he could do within the confines of his code of conduct given his experience and perception of the events unfolding in the state.
Almost all colonised nations have successfully secured freedom through treaties and agreements despite the bloodshed but have found a way out to stay connected for the common good. The eight-nation South Asian Association of Regional Cooperation (SAARC) could play a role in reunification for peace and development in these countries, which is hampered by the entanglement between India and Pakistan.
Justice Koul’s proposal for a “Truth and Reconciliation Commission,” though a fait accompli, could create a win-win situation for all state subjects and those fighting in Kashmir and for Kashmir if a way out is found based on ground realities.
The people across the Line of Control that is in Pakistan-administered Kashmir including in Gilgit-Baltistan are living peacefully in Pakistan but their political and constitutional rights in mainland Pakistan are hostage to the Kashmir issue.
They have not been assimilated in Pakistan as they are treated as disputed like the rest of the state, though all the territories transferred from the British to Gulab Singh through the Treaty of Amritsar of 16 March 1846 have been free since August 15, 1947, when all such treaties lapsed.
The Dogra family no longer had any right to these territories except for the armed occupation which was ended by the evacuation of the Dogra forces by the people of these territories and the declaration of their government on 24 October 1947, before the accession document of 26 October 1947 by Maharaja Hari Singh with India.
Assuming that this document has any legitimacy, it did not include the evacuated territories of PAK and Gilgit-Baltistan. These areas are declared “evacuated areas” in the UNCIP resolutions, and its representative Joseph Korbel said: “The movement of the people of Azad Kashmir cannot be ignored.” This testifies the legitimacy of the freedom of, and negates the claim of India to these territories.
If Justice Kaul’s suggestion is heeded anywhere, India, Pakistan, and the subjects of the state, irrespective of their religion and place of residence, can give vent to their feelings and find a practical solution based on ground realities as these areas belong to them and no one else.
Be that as it may, the political destiny or political order of a restive nation, state or country is not shaped by court orders but by the people themselves, as was the case in the Indian subcontinent after about a thousand years of subjugation by various occupiers.
Especially by the British, who had tightened it through legal documents, the last of which was the 1935 Act. All this dwindled due to the resilience of Indians, of which we were a part. Kashmiris are also a classic example of unbroken resilience since the 15th century.
Let us learn the lessons of the rise and fall of empires and lead the world through cohesion. The law is not a solution to political issues.
میرے ہی لہو پہ گذر اوقات کرو ہو ، مجھ سے ہی امیروں کی طرح بات کرے ہو -( ڈاکٹر کلیم اعجاز ہندوستانی شاعر)
تم غیروں سے ہنس ہنس کے ملاقات کرے ہو ، اور ہم سے وہی زہر بھری بات کرے ہو – (اقبال عظیم پاکستانی شاعر)
Meray Hi Lahoo Par Guzar Awqat Karo Hou
Mujh Say Hi Ameeroon Ki Tarah Bat Karo Hou
(Dr Kaleem Ajaz — Indian poet)
Tum Gayroon Say Hans Hans Kay Mulaqat Karou Hou
Aur Ham Sey Wahi Zahar Bhari Baat Karou Hou
(Iqbal Azeem— Pakistani poet)
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