Daily Times

The five petitions filed in the Supreme Court of India as public interest litigation, asking to strike down article 35A of Indian Constitution which empowers the State legislature to define ‘state subjects’, their privileges, and in particular does not allow any non-Kashmiri (Indian) to own any property, and withholds other rights in Jammu and Kashmir, has been relisted on 27 August.

The petitioners namely, “We the Citizens”, “West Pakistan Refugees Action Committee, Cell 1947”, “Dr Charu Wali Khanna”, “Kali Dass” and “Radhika Gill” are contesting in favour of a non-Kashmiri influx. It seems like a serious situation because around ninety-one lawyers are involved in the case. We could turn the tables, if we argue according to the jurisprudence of UN Resolutions on Kashmir.

There is a collective feeling in Kashmir that radicals in India are behind these five petitions. They want to use the Supreme Court to change the demography of Kashmir. The Indian Supreme Court has a dodgy record when it came to adjudicating matters involving Kashmiri Muslims. The Court has been overtaken by ‘popular sentiment’ and has wronged the administration of justice.

It is easy to explain that the Constitutional history of India starts from 1948 and the constitutional history of Kashmir dates back to 1934. The Constitutional Order 1954 which brought in article 35A itself is a nullity. It can’t credit or wrong the ninety-one year old law of the people of Kashmir. A law this old, has a freedom of its own. Moreover the Supreme Court of India has no jurisdiction of the matter, and is also fettered by the UN Resolution of 30 March, 1951.

The Indian SC has a dodgy record when it came to adjudicating matters involving Kashmiri Muslims

Indian schools need to understand that the accession of 27 October, 1947 has been surrendered by the Government of India at the UN Security Council on 15 January, 1948 for a UN supervised vote. The Indian Government and the Government of Jammu and Kashmir at Srinagar remain under the UN Security Council caution.

The common inference from this caution in March, 1951, is that any Presidential Orders under the Indian constitution or any actions by the Kashmir Assembly after March, 1951, would have no merit, if these violate the principles set out by the UN. The President of India can’t create an authority for himself over and above the UN package on Kashmir.

Article 35A of the Indian Constitution on state subject laws and article 3 of the Constitution of Jammu and Kashmir, declaring “The State of Jammu and Kashmir as an integral part of the union of India” have no merit. Both these articles were introduced post the March 1951, caution of the UN Security Council and the Indian assurances given at the UN Security Council.

The UN Security Council could be called as a witness at the ICJ if Indian actions are challenged by the people of Kashmir through the Government of Pakistan or any other country. The Government of India has admitted at the 533rd meeting of the UN Security Council that, “So far as the Government of India is concerned, the constituent assembly is not intending to prejudice the issues before the security Council, or to come in its way.” On 9March 1951 at the 536th meeting of the UN Security Council the representative of the Government of India has stated that, “provision was made in the Indian Constitution for a constituent assembly for settling the details of the Kashmir constitution. Will that assembly decide the question of accession? My government’s view is that, while the constituent assembly may, if it so desires, express an opinion on this question, it can take no decision on it.”

The Indian representative was challenged at the 548th meeting of the UN Security Council on 29 May 1951 in regard to its position on the convening of a constituent assembly in Kashmir. Indian representative Mr. Dayal reiterated that, “Let me recall what Sir Benegal Rau stated to the Council on the subject of proposed constituent assembly in Kashmir. On 1 March 1951, he said (533rd meeting), “So far as the Government of India is concerned, the constituent assembly is not intended to prejudice the issues before the security Council, or to come in its way.”

The Supreme Court of India does not have a jurisdiction to interfere in defining the title of ‘state subjects’. Article 370 and article 35A of the Indian constitution have no merit since after 15 January 1948 when India surrendered the accession at the UN Security Council for a UN supervised vote and after the UN Security Council caution of 30 March 1951. There is a need to defend the jurisprudence of Kashmir case and argue that the Indian Supreme Court would be coram non judice in the matter.

The author is President of London based NGO JKCHR, which is in special consultative status with the United Nations. He is an advocate of the Supreme Court and specialises in Peace Keeping, Humanitarian Operations and Election Monitoring Missions.

The writer is the President of JKCHR — NGO in Special Consultative Status with the United Nations. He is on UN Register as an Expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. He is a senior advocate of the Supreme Court. Author could be reached at dr-nazirgilani@jkchr.com

Published in Daily Times, August 8^th 2018.