Daily Times

The British Indian Empire was divided into Pakistan and India, two sovereign states, in August 1947, which is when the Jammu and Kashmir dispute began. In addition to being a territorial dispute, this problem involves illegal occupation and violations of the political, religious, ideological, and fundamental rights of the Kashmiri people. The world has seen India’s violence and barbarism on several occasions. Muhammad Ali Jinnah, the Quad-e-Azam, referred to Jammu and Kashmir as Pakistan’s “jugular vein.” A fair and impartial plebiscite would be held in Jammu and Kashmir under UN auspices to allow the Kashmiri people to exercise their right to self-determination and join either Pakistan or India, as per resolutions passed by the UN Security Council.

With additional assurances from first Prime Minister Jawaharlal Nehru, Governor General Mountbatten, and other prominent figures, Jammu and Kashmir were granted a special constitutional status through Article 370 of the Indian Constitution in 1950. This status was later confirmed on several occasions, including the Dehli Agreement of 1952 and the Presidential Order of 1954 that introduced Article 35A into the Indian Constitution. This clause essentially transferred the larger authority to the state legislature of Jammu and Kashmir, thus restricting Parliament’s ability to enact laws on behalf of the State. These clauses ensured that the people of Jammu and Kashmir would have the final say over their sovereignty and that all laws, and they would finally decide their political fate.

Following that, on May 14, 1954, the Presidential Order of 1954-officially known as The Constitution (Application to Jammu and Kashmir) Order, 1954-went into effect. It was a comprehensive decree that sought to execute the 1952 Delhi Agreement and was arguably issued with the consent of the State’s Constituent Assembly. In certain ways, it even went beyond the Delhi Agreement.

Since the year 1950, No government or political party has ever altered Kashmir’s special status. Furthermore, the Indian Superior Courts have validated and upheld the constitutional framework on multiple occasions. But the first time the BJP under Modi took office, they included the repeal of Article 370 of the Indian Constitution in their electoral platform. In order to carry out this heinous and unlawful plan, they first established the governor’s rule in Kashmir in 2018 by forcibly toppling the state administration. The unique status of Jammu and Kashmir was eliminated by this measure. Additionally, on August 9, 2019, the Jammu and Kashmir Reorganisation Act, 2019, which divided the State of Jammu and Kashmir into Jammu and Kashmir and Ladakh, was passed by the Union Parliament; only the former kept its legislative assembly.

Soon thereafter, 23 separate petitions challenged the illegal Presidential orders issued on August 5 and 6, 2019 regarding the abrogation of Article 370 of the Indian Constitution under Article 32 of the Indian Constitution, on the grounds that: the procedure used to abrogate Article 370 is clearly arbitrary, in violation of the principles of the constitutional scheme of India and J&K, and a breach of the rule of law principle, which is a fundamental component of the Constitution; the Presidential Order C.O. 272 incorrectly invokes Article 370(1)(d) to amend the proviso to Article 370(3). Article 370(1) restricts the applicability of certain sections of the Indian Constitution to the State of Jammu and Kashmir.

Further grounds were taken as it prohibits the State from implementing “all provisions of the Indian Constitution” to the extent that the J&K Constitution is entirely superseded, and it also prohibits the addition of any new constitutional provisions, the inclusion of clause 4 to Article 367 (interpretation), which removes the effect of Article 370 by replacing “Constituent Assembly of the State” with the phrase “legislative assembly of the State.” this is an illegal use of power because Article 370(1) only permits the State of J&K to apply certain provisions of the Indian Constitution; it forbids the creation of new constitutional provisions (such as the addition of clause (4) to Article 367 (interpretation)) or the application of “all provisions of the Indian Constitution” to the State to the point where the J&K Constitution is completely replaced.

Though, the Indian President unilaterally abrogated Article 370 on August 5 and 6, 2019 without adopting the due process given in the Constitution despite Supreme Court admission, but Constitutional Bench delivered a judgment on December 11, 2023, ruling on 23 petitions contesting the validity of that action. The ruling stated that Article 370 was only meant to be a temporary provision, and as such, the President was authorized to abrogate it. The Court went on to state that after Jammu & Kashmir (J&K) joined the Union of India, it lost all internal sovereignty.

Despite these findings, what’s most intriguing is that the Indian Supreme Court went on to hold in the ruling that although an interpretation clause can be used to define or provide context for specific terms, it cannot be used to change a provision without following the prescribed procedure. This would negate the need for an amendment process. Therefore, if the Indian Supreme Court rules that the President’s CO 272/2029 was issued without due process, there is no way that the President’s CO 273/2019 can be lawfully issued. This indicates that the Indian Supreme Court recognized that the status of Kashmir granted under Article 370 was permanent, and, as the Bench unanimously acknowledged, the special status could not be altered or revoked without adhering to the constitutional due process. As a result, neither the current ruling nor the special status granted to Kashmir by the Constitution can be upheld.

As there isn’t a Constituent Assembly today, therefore, the President is unable to repeal the article. Furthermore, because the Constituent Assembly and Legislative Assembly are not the same institutions, the way the Union has drafted its amendments to Article 370-replacing the former with the latter-will not stand. In the current ruling, the Indian Supreme Court declared that a portion of the President’s Constitutional Order (CO) 272, which initiated the abrogation process, was declared unlawful. Accordingly, the President could not have unilaterally issued a CO abrogating Article 370 by amending the proviso to Article 370(3) and substituting the term “Legislative Assembly” for “Constituent Assembly.” This means that it is legally prohibited to make an indirect amendment to Article 370 through CO 272. This implies that the President’s indirect alteration of Article 370 through CO 272 was not permitted by law, making the entire abrogation process unlawful. As a result, the current judgment will not stand on its own and would provide a compelling argument for future review in court.

The Presidential Order C.O. 272 lacks a proper constitutional basis for the concurrence upon which it is founded and as well admitted by the Indian Supreme Court. The powers under the President’s authority are “coterminous” with those of the State legislature, so the “consent” to the order was unlawful, the Legislative Assembly is prohibited from “seeking to make any change in the provisions of the Constitution of India in relation to the State,” nevertheless, by Article 147 of the State’s Constitution. Therefore, neither the legislative assembly nor the governor could have approved Presidential Order C.O. 272; on the other hand, the legislative assembly of J&K lacks the constituent authority to suggest changing Article 370. Moreover, Article 370 was “frozen in time” once the Constituent Assembly disbanded. Furthermore, because Article 370 was “frozen in time” when the Constituent Assembly dissolved, the transfer of power under the President’s administration is only momentary. Making significant federal changes during such a proclamation is unlawful, and dividing the State of J&K into two Union territories is against Articles 1 and 3 of the Indian Constitution, which forbid statehood retrogression, thus the Presidential Order C.O. 272 and 273 issued on 5th and 6th August 2019 was un- constitutional and could not be validated.

Given the foregoing, it can be legally concluded that the present Indian SC judgment is violation of Articles, 3, 360, 367,370 and 35A of the Indian Constitution and the procedure adopted in abrogating Article 370 by the President was manifestly arbitrary, contrary to the principles of the constitutional scheme of India and J&K, and is a violation of the principle of rule of law, which is part of the basic structure of the Constitution, thus the present judgment is not only legally self-contradictory, but against the law, facts and the commitment of Indian first Constituent assembly to the people of Kashmir, resultantly concluded in misinterprets and completely disregarded the true constitutional, legal, and historical history and will of Jammu and Kashmir as well as the promises and commitments made by its leaders even during the design of the instrument of accession on October 26, 1947, and Article 370 in 1949-50 and in 1954, though Pakistan has not even acknowledged the instrument accession because the state was a Princely State with Special Autonomous Status, and if Maharaja Sir Hari Singh ever signed the instrument of accession with Indian dominion, it was because he was no longer the state’s legitimate monarch. Pakistan should highlight the above before the international community and before the United Nations.

In conclusion, this present judgment will not affect at all the political and legitimate long-standing struggle of Kashmir. The peace and stability of the area depend on finding a long-term solution to the Kashmir problem. It is crucial for the entire region as well as the global society, not simply the people who are immediately impacted. To determine a future trajectory, conflict must yield to discourse, diplomacy, and commitment. The Kashmiri people’s goals and interests ought to be at the centre of any settlement through fair and transparent plebiscite as per Security Council resolutions. It is also important that the life and property rights of Kashmiris need to be ensured and respected, and their voices need to be heard at all levels. An early resolution that really represents their will must be passed in order to bring about lasting peace in the region.

The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. He can be reached at: hafizahsaan47@gmail.com