Daily Times

The repeal of the Article 370 of the Indian Constitution, which reflected the covenants contained in the “Instrument of Accession” signed between the Indian Government and the then Maharaja of the State of Jammu & Kashmir, and the resultant revocation of the special status conferred on the people of the State, has tremendously shaken the status quo and re-ignited the simmering issue in a manner that even India had not envisaged.

The Article 370 originally vested the Indian Parliament with the power to legislate upon the subjects of foreign affairs, defence and communication on the behalf of the State, which enjoyed complete autonomy to legislate upon rest of the subjects, apart from having its separate constitution and flag. This status was further augmented in 1954, when a Presidential Order, under the Article 370, introduced a new Article 35-A in the Indian Constitution, thus conferring a special status upon the permanent residents of the State to protect their demographic make-up and property. However, subsequent Presidential Orders have eroded the independence of the State by ensuring most of the subjects, and the Articles of the Indian Constitution are applied to the State.

Recently, a similar Presidential Order, which has been issued purportedly with the “concurrence of the Government of the State of Jammu and Kashmir,” has applied all the provisions of the Indian Constitution to the State, apart from superseding the Presidential Order of 1954. Interestingly, the said “concurrence” of the State of Jammu and Kashmir, which, as per Article 370, means the concurrence of the “Governor… acting on the advice of the Council of Ministers of the State for the time being in office,” seems to be dubious; given the fact that the State is under Presidential rule ever since Mehbooba Mufti resigned as the Chief Minister of the State in June 2018. This meant that there didn’t exist any “Council of Ministers”/government in the State. Later on, the legislative assembly of the State had also been dissolved.

Most importantly, the modifications introduced in this Article, through the Order, under the purported powers conferred by the Article itself–especially the replacement of the recommendation of the “Constituent Assembly” with that of a non-existent “Legislative Assembly” in sub-article 3 thereof in order for the President to repeal the Article through a notification–has paved the way for the Indian Parliament to pass a resolution to scrap the Article 370. It could also hurriedly pass a bill to re-organise the State into two regions of Jammu & Kashmir and Ladakh. Thereafter, the public notification of the Indian President to completely repeal the existing text of Article 370 and replace it with a new one was a foregone conclusion.

Pakistan had never acknowledged the Article 370 in the Indian Constitution from the very outset, as doing so would have been akin to admitting that Kashmir had become a part of India

Now, to apply all the provisions of the Indian Constitution to the State and replacement of the Constituent Assembly with Legislative Assembly, without the advice of the Council of Ministers of the State and then doing away with the recommendation of the Legislative Assembly because of its non-existence in order to repeal Article 370 is something that may attract the ire of the Indian Supreme Court. The top court has recently held that the Article 370 could not be repealed, owing to the non-existence of the Constituent Assembly, which dissolved itself in 1956 after drafting the Constitution of the state of Jammu and Kashmir.

Interestingly, Pakistan had never acknowledged the Article 370 in the Indian Constitution from the very outset, as doing so would have been akin to admitting that Kashmir had become a part of India. Further, the UN Security Council’s resolutions, especially the Resolution No 47–passed on the behest of India Itself, owing to its fear that the tribesman and Pathans from across the border would annex the whole of the State with Pakistan– categorically direct to hold a plebiscite in the region, whereby the indigenous population could decide either to join India or Pakistan or to remain independent.

On the other hand, the starting point of Article 370 was the partial annexation of the State of Jammu and Kashmir by India, albeit with a special status, and the culmination, thereof, is the full annexation, which has now been achieved by hook or by crook–through constitutional adventurism of a sinister sort that the Late Shareef-u-din Peerzada, a known author of similar extra-constitutional documents in order to legitimise the military dictatorship in Pakistan, would have been proud of. It is in the context of the complete annexation of Jammu & Kashmir that the extreme reaction of Pakistan ought to be understood.

Finally, the remedies of the International Court of Justice (ICJ) and International Criminal Court (ICC) are unavailable to Pakistan for various reasons: the jurisdiction of ICJ, which is a principal organ of UN, depends on the consent of both the parties, which is lacking in the instant dispute. On the other hand, the ICC only prosecutes individuals for certain crimes that took place after the coming into force of the Statute of Rome in 2002, and especially, when the national courts are incapable and unwilling. Further, both Pakistan and India are not parties to this statute.

Therefore, the only remedy available to Pakistan is to knock afresh at the door of the UN Security Council, citing the world-wide threat of annihilation, an impending war between the two neighbouring countries could lead to.

In the meantime, and as an interim measure, the actions already taken by Pakistan would suffice, i.e., lowering of the diplomatic relations, expelling of the Indian high commissioner, alerting the Armed forces, celebrating August 14 as a day of solidarity with our Kashmiri brethren, and denouncing August 15 as a Black Day. However, if the collective world conscience in the shape of the Security Council refuses to wake from its deep slumber, the only solution to this long-standing dispute may be a limited war, which may, in all likelihood, climax at a “nuclear solution” of this ailing dispute.

The writer is an advocate, practising constitutional and international law