Thanks to Article 370, Kashmir is Not Yet Independent

Adhir Ranjan Chaudhury has raised an important question in Lok Sabha: Is Kashmir an internal matter of India? The question has been raised in the context of the dispute raised by India before the United Nations, which makes Pakistan an interested party in Kashmir. This is indeed a factual position and the UN still monitors Kashmir. However, even if there was no involvement of the UN in Kashmir, it wouldn’t have been an internal matter of India.

Kashmir was an independent state, which relinquished its sovereignty only partially to India. It formed a separate constituent assembly, which was formally dissolved after fulfilling its purpose. The Indian Constitution applies to Kashmir only through the operation of Article 370 of the Indian Constitution. There is no other legal way for India to interact with Kashmir. The constituent assembly of Jammu & Kashmir (J&K), however, didn’t have the power to declare Kashmir a fully independent state not forming part of Union of India under Article 1 of the Indian Constitution. The power to declare Kashmir free rested solely with the Indian president on the recommendation of the constituent assembly of J&K under Article 370(3) of the Indian Constitution. However, since there was still a scope of Kashmir gaining freedom from Indian control under Article 370(3), Article 370 was deemed to be a temporary provision. The constituent assembly of Kashmir dissolved in 1956. Since there was no scope of Kashmir gaining a completely independent status in 1956, for the external aggression threat that Kashmir faced continued unabated, the constituent assembly didn’t recommend abrogation of Article 370 before its dissolution, and Article 370 thus gained permanent status. This was a boon for India because India then became the master-cum-guardian of Kashmir, which fiduciary relationship it has used persistently to keep Kashmir dependent upon itself. However, the separatist voices in Kashmir, who never accepted Article 370 at the first place, continued to militate against India. Now let us look at what has changed in India-Kashmir relationship after 5th August, 2019.

Well, fortunately for India, nothing has changed, and that’s only because the less intelligent people of BJP, the ruling party, have committed so many illegalities that all their executions have been rendered null and void. Had they acted legally, Kashmir would have gained independence from India yesterday. So, let me first state what was the legal way of making Kashmir independent. First and foremost, Kashmir should have constituted a new constituent assembly, which should have then recommended the abrogation of Article 370 of the Indian Constitution to the president of India. Thereafter, the president should have declared Article 370 quashed. Now let us see what has been done. The president of India vide “The Constitution (Application to Jammu and Kashmir) Order, 2019” superseding “The Constitution (Application to Jammu and Kashmir) Order, 1954” extended the whole of Indian Constitution to Kashmir and, of course, quashed Art 35A giving power to the J&K legislative assembly to define permanent resident of Kashmir. The above also claimed to amend the Indian Constitution by substituting “legislative assembly” for “constituent assembly” in Article 370(3) in Indian Constitution, by construing reference to Sadar-i-Riyasat of J&K as reference to Governor of J&K, by internalizing the external reference to Indian Constitution in reference to J&K, and by enlarging the scope of the word “Government” in reference to J&K.

First, “The Constitution (Application to Jammu and Kashmir) Order, 1954” is under challenge in Supreme Court of India for being illegal, for it amended the constitution by a mere presidential order. Now that litigation would become infructuous, but “The Constitution (Application to Jammu and Kashmir) Order, 2019” would be challenged on the very same ground. Secondly, the extension of the whole of Indian Constitution to J&K and the amendments in the constitution thereof tantamount to implied annulment of J&K Constitution, which is non-est as no constitution of the world can annul another constitution by making changes in itself. Thirdly, the substitution of “constituent assembly” with “legislative assembly” in Article 370(3) of the Indian Constitution is complete non-sense. The role of the two is entirely different. Constituent assembly cease to operate after fulfilling its function whereas legislative assembly has to pass laws perennially. If legislative assembly is to be equated to constituent assembly, there would be a new constitution everyday. This amendment is laughable. Only a BJP minister could have though of it. I think they thought they would surreptitiously revive the constituent assembly of J&K though its legislative assembly and make it recommend abrogation of Article 370 to the president, which, ironically, would have meant complete independence of Kashmir. However, the present Indian government has no respect for law. Their sole aim is to fully acquire J&K without the will of Kashmiris. This they intended to achieve by re-organising J&K into two union territories; i.e., Ladakh and J&K. The re-organisation of J&K has no legal basis whatsoever. If India thinks their deemed abrogation of Article 370 has given them authority to change the territorial boundaries of J&K, they are sadly mistaken. Abrogation of Article 370, which I repeat has not happened, would have rather made Kashmir independent from the control of India.

However, at the same time, India does have the power to do whatever it wants to do with Kashmir. That is only because it has successfully run an international propaganda that Kashmir is an internal matter of India even though the true legal position is altogether different. Another reason for Indian success is an almost non-existent political leadership in Kashmir. All moderate leaders of Kashmir, whether separatists or otherwise, are under the protection of Indian government, and those who are not, are mostly closely connected to Pakistan. Even militants have meagre presence in Kashmir irrespective of Indian claims. However, the general public in Kashmir is badly dissatisfied. India wants to patronize them, and they snub any such Indian attempt. The latest by India is also in sync with the same patronizing attitude. They first want to rape and then marry assuming that the bride is always faithful. This will not end soon. You can’t isolate anybody for too very long however much the targeting. Kashmiris are even otherwise smart people. It is generally difficult to lead smart people. But, sooner or later, the smarter among the smart become leaders, and a strong Kashmiri leader would also emerge, sooner or later. The carrot and stick patronizing of India can’t succeed for too long. Most of the ill-feelings perpetrate as a result of denial of justice. There is still hope because the recent actions of India have not been tested in a court of law. I hope the better sense will prevail there.

P. S. Please read the following tweet thread in conjunction with the above article:

About the Author

Ankur Mutreja
Ankur Mutreja is an advocate-cum-writer, and his blogs are amongst his modes of expression. He has also authored number of books, which can be downloaded from the links on the top menu.

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