‘Genesis of the Kashmir issue does not lie in Article 370; solution doesn’t lie in (removing) it’https://indianexpress.com/article/explained/kashmir-issue-art-370-solution-removing-it-dr-aman-hingorani-5954862/

‘Genesis of the Kashmir issue does not lie in Article 370; solution doesn’t lie in (removing) it’

What are the legal and constitutional bases — and implications — of the removal of the special status of J&K? What is the historical context of the ‘Kashmir issue’, and what were the key questions involved in the accession of the princely state to India? These, and associated issues, were explained to the readers of The Indian Express last week by Dr Aman Hingorani, eminent lawyer and author of Unravelling the Kashmir Knot. He spoke to Apurva Vishwanath

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Dr Hingorani with Apurva Vishwanath of The Indian Express

Dr Aman Hingorani is an eminent lawyer, teacher of law, and an expert who has studied the Kashmir issue closely. He is the author of Unravelling the Kashmir Knot. He practises in the Supreme Court of India.

On the background and the context of the ‘Kashmir issue’

The political discourse in this country equates the Kashmir issue with Article 370 of the Constitution. And so, the government says, we strip the preferential treatment given to the state, terrorism will go away, peace will come, there’ll be investment, there’ll be assimilation of the people from the state into the mainstream, there’ll be development, there’ll be job opportunities.

(But) the genesis of the Kashmir issue does not lie in Article 370; the solution (also) does not lie in Article 370. The Kashmir issue is much wider and multi-layered… By the time we are through with this, I hope I am able to persuade some of you that what has happened was entirely unnecessary, and it is not going to make an impact on the ground.

Now, India may be a very ancient civilisation, but modern-day India and Pakistan are creations of a political agreement: the Partition Plan of June 3 (1947), which was announced by the British, accepted by the Muslim League, and eventually by the Indian National Congress, for partitioning the subcontinent. That political agreement was crystallized in law; the British Parliament amended the Government of India Act of 1935; it enacted the Indian Independence Act of 1947.

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This law talked about partitioning the provinces, etc. But at that point of time, about 45% of the subcontinent was made up of 562 princely states, and Jammu and Kashmir was one of them. Externally, they owed allegiance to the British Crown; internally they were sovereign. The British statutes said that as of August 15, 1947, British sovereignty would lapse, the states will become legally sovereign. So you had, in theory at least, 560-odd countries in the continent.

As of August 15, 1947, Jammu and Kashmir was sovereign; it was not part of India. Jammu and Kashmir did not want to go to India or to Pakistan. The ruler was Hindu. He did not want to go to Islamic Pakistan. He did not want to come to India either, because Jawaharlal Nehru had said excellencies did not count in the new mood of India.

Then the tribal invasion, etc. happened, a strategy employed by the British and Pakistan to get J&K to accede to Pakistan, which boomeranged. The ruler acceded to India on October 26, 1947. With that accession, in terms of the law which created India and Pakistan, the entire state of Jammu and Kashmir became an integral part of India — the Northern Areas that has Gilgit-Baltistan, PoK, Jammu, Ladakh, Kashmir.

The Accession Instrument was identical, the template was given by New Delhi to all the princely states to accede in three areas unconditionally, external affairs, communications, defence, and ancillary matters. The other states executed supplementary instruments ceding further powers, or adopting the future Constitution of India. They executed instruments of merger merging their territory, but Jammu and Kashmir refused to do so. The four representatives sent by the ruler of J&K to the Constituent Assembly of India said we want to limit the accession of the state to the terms of the accession. That is, we are giving only external affairs, communications, and defence, for which, if you want to legislate, take the consent, or consult the state. If you want to talk about matters other than the Instrument of Accession, you need the consent of the state.

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Audience interacting with the speaker at the Express Explained Conversation.

This position was reflected in Article 370. It said the President can apply powers of the Indian Constitution to the state in respect of matters mentioned in the Instrument of Accession after consulting the state; on matters outside the Instrument of Accession, with the consent of the state. Article 370 identified the body that could recommend this particular provision to be inoperative — the state Constituent Assembly, which would frame the state Constitution.

Thereafter, came the Delhi Agreement of 1952… There had to be a transition from monarchy to a form of government, which was to be decided by the state Constituent Assembly, which was to further define the constitutional relationship of the state with India. (But) the state Constituent Assembly was yet to be set up, that constitutional relationship was yet to be decided. And that was the purpose of making this provision (Article 370) transitional or temporary.

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The engaged audience at the Express Explained Conversation.

The state Constituent Assembly was set up in 1951. It was an elected body. The chairperson defined the constitutional relationship of J&K as being an autonomous republic within the Union of India. The Delhi Agreement was ratified not only by the state Constituent Assembly, but by the Indian Parliament in 1952. Then there was the 1954 Order, which talked about giving certain preferential rights to the citizens or the residents of the state, some of them were prejudicial also…

Article 370(1) talked about applying provisions of the Indian Constitution, with or without modification, to the state. This started a process of eroding the state’s autonomy, and executive action was considered good enough to do that. And here I am talking about regimes right from the 1950s onward.

Before the events of August 5 (2019), virtually the entire Constitution of India was any way applicable to the state. Article 370 was an empty shell, the contents had been emptied long ago. Article 370 has never come in the way of New Delhi dealing with the state in the way it wanted to deal with the state.

On what really has changed in Jammu and Kashmir now

In my doctoral research, which was published as a book in 2016, I had pointed out that Article 370 is quite irrelevant. New Delhi had all the powers it wanted qua the state… If there was a particular law which was discriminatory, it could be struck down; that does not justify making the Article itself inoperative. Many states have restrictions on people buying land; what’s so special about it? You challenge the law, you don’t get rid of the Article! Accession is an act of state, it binds everybody. An organ of the Indian state cannot reopen the terms of accession. But I’ll come back to this point later.

I mentioned that the state acceded unconditionally to India in three areas and ancillary matters. New Delhi said, we’ll accept this accession provisionally; let the people of the state decide the future of the accession.

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Audience interacting with the speaker at the Express Explained Conversation.

And then what did we do? [We said] let us go to the United Nations. Bring in the world community to comment on the happenings of the state. We went to the United Nations complaining of aggression, and committed to a plebiscite there. We are the only country in history to have gone to the United Nations saying there is aggression on our territory, and come back with the promise to have a plebiscite to see whether it is even part of our territory! It is New Delhi which has made Kashmir disputed territory. We can say it is an integral part of India, it is an integral part of India, but outside the borders of India, it is till date marked as a disputed territory. This is because we have cast doubts on our own title to the state by accepting the accession provisionally, internationalising it, and then following a policy… of territorial status quo. Now we say it’s a bilateral issue, and that the UN’s got nothing to do with it, forgetting that each time we say it is a bilateral issue, we are conferring a standing on Pakistan other than that of an aggressor.

Here is a state which is Indian territory. But more than 50% of it is occupied by China and Pakistan. China has no claim to J&K, but it occupies about 20% of J&K… In 1963, another part of Jammu & Kashmir — Indian territory — was gifted by Pakistan to China. 35% of the state is with Pakistan.

What did we do? In 1957, we informed the United Nations that we believe in letting sleeping dogs lie. In the 1965 War, we won back Haji Pir — Indian territory as per the Constitution of India. We returned Indian territory to Pakistan in Tashkent in 1966. Simla Agreement, 1972, [underlined] inviolability of the ceasefire line; Lahore Declaration, 1999, reiterated the same position. We may have a parliamentary resolution which says Pakistan must vacate, but our whole policy… has been territorial status quo…

The ‘Kashmir issue’ is not Article 370, focussing on the part of the territory with us; the ‘Kashmir issue’ is getting back our territory, getting back our citizens, and getting rid of the ‘disputed territory’ tag on J&K. Unless that happens, nothing will work in Kashmir.

Yes, you need to address the feeling of injustice which is there in the state. We keep saying we gave special status to Jammu and Kashmir, but isn’t it the other way round? It was a sovereign country, they gave us some powers… Here of course, there is a caveat. J&K is not a homogeneous state, people in Ladakh have been clamouring for Union Territory status, people in Jammu are welcoming (the government and Parliament’s move), there may be popular support in the state…

To be honest with you, nothing will change on the ground because the Indian Constitution was anyway applicable to the state. But is that a justification for doing what we did, and confining the Kashmir issue only to Article 370? Will that bring peace to the region when part of the state is not even with us?

On the move made by the government on August 5

I hope the government is right when it says it will help the nation. I have no reason to doubt what they’re doing. I am just examining the constitutional process, because we are a country which is supposed to follow the rule of law. Now, three things have essentially happened.

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Dr Aman Hingorani

Firstly, the 1954 Order been replaced by the 2019 Order, applying the entire Indian Constitution to the state. Secondly, the state has been broken into two Union Territories, one with a legislature, the other without. And thirdly, there has been a substitution as to the body that can recommend to the President to declare Article 370 inoperative. And this has happened at a time when there is Presidential Rule.

Now, Presidential Rule is an emergency provision. It is not meant for taking far-reaching decisions. It’s meant to be there when there’s a breakdown of the constitutional machinery, as a stopgap adjustment, as a temporary arrangement. The Centre steps in, takes over the power of the state government, takes over the power of the Legislative Assembly, and it is limited in scope and duration…

The entire Constitution of India has been applied to the state. That could have been applied with the consent of the state in matters not mentioned in the Instrument of Accession, or not subsequently given away by the state Constitution, etc. During Presidential Rule, the power of the state government is exercised by the Governor, who is New Delhi’s appointee. So, New Delhi’s appointee is giving consent to New Delhi to apply the entire Constitution to the state.

As per Article 3 of the Constitution of India, there is no guarantee of territorial integrity to any state… Parliament can by law alter the boundaries, change the name, etc. Of course, there is a proviso which says you must take the view of the state, but it is non-binding on Parliament, and after ascertaining the views of the state, Parliament can do so by law.

In the 1954 Order, a proviso had been added to Article 3, that if you want to do this with J&K, you need the consent of the state Assembly. Let us assume that the the application of the Constitution of India is valid on the state; that means Article 3 becomes applicable. But that still means you must take at least the views of the state Assembly. Now, when the Presidential proclamation is in force, Article 356 is applied, who takes over the power of the state Assembly? Parliament. So, what the government is doing is that it is consulting or taking the views of Parliament, where it has a majority, to dismember the state. New Delhi is taking a yes from itself.

Can you use emergency provisions to dismember and destroy the identity of a state? Tomorrow, if you don’t like a particular state, so can you just say we dismiss the government now, and it is a UT? We may not have a strictly federal Constitution, but we also don’t have a strictly unitary Constitution. The Supreme Court has held it to be quasi federal, and said that the federal character of the Constitution is part of the basic structure…

The third point is about substituting the state Constituent Assembly with the state Assembly. Now Article 370(1) said the President can apply parts of the Indian Constitution to the state with or without modification. The protection is in Article 370(3): that the same Constituent Assembly which framed the state Constitution is the only competent body that can recommend to the President to make Article 370 inoperative.

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Audience interacting with the speaker at the Express Explained Conversation.

That Constituent Assembly was set up, it framed the Constitution, it dispersed. It did not make any recommendation. And that’s the reason why the Supreme Court has been saying it has become permanent. Article 370 could have been made inoperative — but with the dispersal of the state Constituent Assembly, the competence of the organs of the Indian state ceases to declare 370 inoperative.

Now, Article 370(1) has been used to add a provision in Article 367, an interpretation clause, to replace the state Constituent Assembly with the state Assembly to be the competent body. And in a time of emergency provision — 356 — who exercises the power of the state Assembly? Parliament. So again, the power which was to be exercised by the state Constituent Assembly, has to be exercised by the state Assembly, which under President’s Rule will be exercised by Parliament, so New Delhi is again taking recommendation from itself to make 370 inoperative.

Therefore, you have exercised one constitutional provision in such a way that you have nullified the protection given by another constitutional provision. That’s an elementary proposition of law: what you can’t do directly, you can’t do indirectly.

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What has happened is this: It is New Delhi which has defined the constitutional relationship between India and the state, and not the state defining its constitutional relationship with India. The Instrument of Accession, Article 370, Delhi Agreement, Supreme Court decisions, notably Prem Nath Kaul (1959), all have emphasised that it is only the state that can define the constitutional relationship, and the Indian Constitution makers don’t have the competence to impinge on the powers of the state. That is something which the government would need to defend, and quite robustly, if it wants to get away with what they’ve done.

(Edited excerpts from the Conversation)