By rescinding the Constitution of Jammu and Kashmir, the territorial integrity of India has been impaired. For the last 30 years, the ideologically secessionist armed insurgency in Kashmir has been threatening the territorial integrity of India. The Indian state with all its might has been successful in not only containing it but in also getting the international community to by and large endorse its position. Ironically, the solution of the present BJP government to the long-standing problem of Kashmir — abrogating its special status in the Constitution of India which they see as the main cause of separatist sentiment — may have ended up not only compromising the territorial integrity of India, but also rekindled the intrusive interest of the international community in the happenings in Kashmir.
Constitution of India, Clause 3 of Article 1 states, “the territory of India shall comprise of the territories of the states”. The First Schedule lists out all the states in the Union and defines their individual territorial limits. In the process, it defines the territory of India. There is no other definition of the territory of India as a whole in the Constitution save as a sum of its parts. As the 15th state in the Union, the territorial boundaries of J&K are defined in the First Schedule as, “The territory which immediately before the commencement of this Constitution was comprised in the Indian State of Jammu and Kashmir”. Unlike all other states whose boundaries are precisely defined, this territorial definition of Jammu and Kashmir is not only ambiguous but also contentious.
There are two parts to this definition: First, the phrase “immediately before the commencement of this Constitution”. Which precise date does this refer to? And second, is the term “Indian State of Jammu and Kashmir”. This is the only place in the Constitution of India, where the prefix “Indian” has been added to the state of Jammu and Kashmir or for that matter to any other state. In all other references to it in the Constitution, the word used is “State of Jammu and Kashmir”. Nowhere does the Constitution of India define what comprises the “Indian State of Jammu and Kashmir”. Even historically, Maharaja Hari Singh signed with India the instrument of accession on October 26, 1947 for the entire state; and not the “Indian State of Jammu and Kashmir”. So where did the term emanate from and what does it signify? More importantly, what does it connote in terms of its physical boundaries?
The Constituent Assembly of India used this term in the context of the government of India’s reference to the UN on its territorial dispute with Pakistan over Kashmir in January 1948. The Constituent Assembly chose not to pre-empt the UN settlement by including the entire state of Jammu and Kashmir as a part of India. The UN had mediated the cessation of hostilities in 1949 and drew a ceasefire line that left 35 per cent of the total area under control of Pakistan. This became the de facto border, the Line of Control with Pakistan Occupied Kashmir, under the Simla Agreement in 1972.
Indeed, the Constituent Assembly debates and the correspondence between the main dramatis persona discussed the eventuality of the state deciding to join Pakistan post the promised plebiscite and its implication on the Constitution of India. As such, the territory mentioned in the Seventh Schedule of the Constitution means the territory of Jammu and Kashmir under the control of India. Hence, also, the qualification “Indian”.
The phrase “immediately before the commencement of this Constitution” can either mean when the Constituent Assembly of India formally adopted the Constitution, that is, November 26, 1949. Or it can be January 26, 1950 when it was promulgated. Taking either date, more than one-third of the state, was under the “illegal” occupation of Pakistan. Did the Constitution of India, then, forego its claim on Pakistan Occupied Kashmir, then? The answer is no.
The reason why the territory of J&K has been ambiguously defined in the Constitution of India is because the Constituent Assembly of India did the politically correct thing of leaving it to the Constituent Assembly of Jammu and Kashmir to discuss, deliberate and define it. The territory of Jammu and Kashmir is defined comprehensively in the now rescinded Constitution of Jammu and Kashmir. The Constitution of Jammu and Kashmir, Part II, para 4, states that “The territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State”. By this definition, the territory of the state of Jammu and Kashmir includes not only the existing state but also the areas occupied by Pakistan (what they call Azad Jammu and Kashmir and Gilgit-Baltistan) and those areas were ceded to China in 1963 (Shaksam tract, now a part of the Xinjiang Uygur autonomous region).
This, read with Part II, para (3) of the Constitution of Jammu and Kashmir — which states, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India” — amplifies the definition of the “Indian state of Jammu and Kashmir” mentioned in the Constitution of India. The point is that it was the Constitution of Jammu and Kashmir and not the Constitution of India which made the full territory of Jammu and Kashmir an integral part of the Union of India. In other words, the Constitution of India was dependent on the Constitution of Jammu and Kashmir in this regard.
The Constitution of Jammu and Kashmir even provided 25 seats in the state legislature for the elected representatives of the “occupied” areas. It was stipulated, under Section 48 (I) of the Constitution of Jammu and Kashmir, that these seats would remain vacant (and reserved) and would not be taken into account for reckoning the total membership of the assembly, till these areas of the state remain under occupation. Significantly, the J&K State Reorganisation Act 2019, had reduced the number of these vacant seats to 24. Is this formalising the Aksai Chin ceding?
The significance of the territorial definition goes beyond the boundaries of J&K. It is on the basis of this definition of the territory of J&K in the Constitution of Jammu and Kashmir that the territorial limits of India got axiomatically defined. Now, with the Constitution (Application to Jammu and Kashmir) Order 2019, the Constitution of Jammu & Kashmir has been rendered infructuous. Along with that goes away the constitutionally defined territorial limits of J&K. What this also means is that the Government of India has, constitutionally speaking, given up its claims on Pakistan Occupied Kashmir and also the territories that Pakistan illegally ceded to China.
Given the fact that the territory of India is an aggregation of the territories of the states, the Constitution Order 2019 has effectively changed the territorial boundary of India. While the Constitution explicitly provides for expansion, “such other territories as may be acquired”, there is no provision for Parliament to reduce the territory of India. Yet that is precisely what the Constitution Order 2019 has done. This in itself is a sufficient ground for it to be struck down by the Supreme Court.
This article first appeared in the print edition on September 12, 2019 under the title ‘Consequences of abrogation.” The writer is former Finance Minister, Jammu and Kashmir.