The Tussle for Territory- International Law and PoliticsOctober 19, 2020
Tribal atrocitiesOctober 22, 2020
The framers of the Constitution of India inserted Article 370 in the Constitution for providing special status to the State of Jammu & Kashmir (hereinafter ‘Kashmir’). The region of Kashmir came under the territorial conflict between India and Pakistan after Kashmir executed a stand-still agreement with armies of both the countries holding their post. Therefore, said framers provided special status to them.
The headnote of Article 370 distinctly denotes the temporary nature of Article 370, which was embedded in the Constitution to give temporary special status to the State of Jammu & Kashmir, till the said territorial conflict gets over. However, as time passes, the question of the territorial conflict for the Kashmir Region got vanished. Consequently, under the umbrella of Art. 370, Pakistan, being a member of the U.N., transgresses the most vital international norm, i.e., Article 2(4) of U.N. Charter, which prohibits any Member-State from causing threat or using force against the territorial integrity or political independence of any other State. Therefore, the national security of India gets hampered.
II. No question of Territorial Conflict for Kashmir Region
a) The whole territory of Kashmir has acceded to the Union of India.
The whole territory of Jammu & Kashmir has acceded to the Union of India through the Instrument of Accession (hereinafter ‘I.O.A.’) which was signed and ratified by Maharaja Hari Singh on 26th October 1947 and further accepted by Lord Mountbatten of Burma as the Governor-General of India on 27th October 1947. The I.O.A. is the binding legal document which makes Kashmir as an integral part of India. While executing this I.O.A., Maharaja himself declared that he acceded to Dominion of India. The Schedule annexed to the I.O.A. empowers the Parliament of India to legislate Kashmir on the matters of Defence, External Affairs and Communications. Therefore, if India has the power to legislate the region of Kashmir on such imperative issues related to Defence, External Affairs, and Communication, then it distinctly depicts that Kashmir is an integral part of India.
Further, under Constituent Assembly Debates (India) of 27th May 1949 (para. 8.93.39), K.T. Shah, a renowned professor, had taken the position that the accession of the State of Jammu & Kashmir by Maharaja Hari Singh (the Constitutional head of the State at that time) has been the declaration of the highest authority in India. Thus, the same was subject to confirmation by the result of the referendum. Moreover, in Para. 8.93.42; 8.93.44 & 8.93.45 of the said debates, it clearly states that certain political authorities, including Dr Rajendra Prasad (President of India at that time), agreed with the Prime Minister in pointing out that the accession was unconditional, absolute and complete without any reluctance on the part of the Maharaja. Therefore, the question of the plebiscite had no bearing as the Maharaja already ratified the I.O.A. Further, the former Chief Minister also expressed that Kashmir Region, under his leadership, had voluntarily acceded to India, without any inducement from India (A.G. Noorani, 227). Hence, the said debates evince that the whole region of Kashmir had wilfully acceded to the Union of India through I.O.A.
b) The Union of India has treated Kashmir Region as one of its states.
Article 1 of The Constitution of India states that “India shall be a Union of States & the States and the territories thereof shall be as specified in the First Schedule.” Further, Serial No. 15 of the Schedule I of The Constitution of India specifies the name of the State of Jammu & Kashmir as the State of India, which denotes that the Kashmir Region is a part of the Union of India.
c) The State of Kashmir has been an integral part of India.
Thirdly, the Preamble of the Constitution of Kashmir effectively states that – Constitution of Kashmir itself has acceded to India absolutely and completely, notwithstanding what is written in Article 370 as it is a temporary provision. Moreover, Section 3 of the said Constitution distinctly declares that “The State of Kashmir is and shall be an integral part of the Union of India.” So, the moment the Constitution of Kashmir had taken its absolute position and the people of Kashmir had taken their view, it’s their voice which is represented in the Constitution of Kashmir, as its Preamble starts with the statement – “WE THE PEOPLE OF THE STATE OF KASHMIR, having solemnly resolved,……..”
So, once the Constituent Assembly of Kashmir had taken the view that it will become an integral part of India, no question of any plebiscite or referendum is required. Therefore, the relations of the State with the Union were bonded equally from both sides, i.e., State of Kashmir and Union of India. Hence, the fear that the removal of Article 370 could lead to the questions of succession is entirely futile and fundamentally ignorant.
Therefore, by virtue of I.O.A. of Kashmir, Article 1 read with Schedule 1 of The Constitution of India and Section 3 of The Constitution of Kashmir, it depicts that the territory of Kashmir Region is not in conflict as the whole territory of Kashmir had already been acceded to the Union of India with the free consent of its people and considered itself as an integral part of India. Therefore, there is no further requirement for the special status of Kashmir. Hence, the use of Article 370 is rendered futile.
III. Hindrance to the Territorial Integrity of India
The principle of Territorial Integrity of states is well-established and prohibits the interference of a state within the territorial jurisdiction of any other state. As discussed above, there is no question of territorial conflict for the Kashmir region because the whole Kashmir Region had wilfully acceded itself to the Union of India. Even the Union of India has always treated Kashmir as its integral part, which justifies the abrogation of Article 370.
However, Pakistan-based militant groups and terrorists made the adjoining boundaries of Kashmir (India controlled Kashmir) and Pakistan as a regular route for entering into the territories of India, which resulted in several terrorist attacks by them in last few decades (acc. to International Crisis Group). Therefore, Pakistan had interfered within the territorial jurisdiction of India through the territory of Kashmir and misrepresented it as conflicted territory due to Article 370. Thus, Pakistan had violated its international duty by using force, in the form of terrorist attacks, against the territorial integrity of India.
IV. Hampers the Political Independence of India
The principle of Political Independence refers to the autonomy in the affairs of the State concerning the political decision by Union and other matters on foreign affairs. In the present dispute, Pakistan played an important role in injecting militants and separatist elements in India and creating a fully developed insurgency.
Moreover, the Centre also stated that “Article 370 regime helped such militant and separatist elements, with the support of foreign forces, in sowing secessionist feelings among the populace of the state.” Therefore, such secessionist feeling among the citizens of the State of Kashmir hampers the political autonomy of the Union. Hence, it violates the political independence of India.
As a result of Article 370, Pakistan had wrongfully empowered itself in using force against the territorial integrity and political independence of India and, therefore, violates Article 2(4) of the U.N. Charter. However, over the years, Article 370 was treated as a permanent provision because under Article 370(3), the President cannot declare Article 370 as inoperative without the recommendation of the Constituent Assembly of the Kashmir and the said Assembly got dissolved in 1957. So, the Government of India (hereinafter ‘G.O.I.’) had inserted a new clause under Article 367 of the Constitution of India, i.e., Article 367(4), by the Constitution (Application to Jammu & Kashmir) Order, 2019. Clause (d) of Article 367(4) interprets the expression “Constituent Assembly of the State” as “Legislative Assembly of the State” under the proviso of Article 370(3). Hence, G.O.I. empowers the President to cease the operation of Article 370.
Further, according to Principle 29 of Siracusa Principles, the National security can also be invoked by the G.O.I. to protect the existence of the nation, its territorial integrity, and political independence against the force used by Pakistan and, therefore, justify the abrogation of Art. 370. Moreover, repealing Article 370 also enables the G.O.I. in bringing various developmental projects in Kashmir and paving the way for Kashmir’s expansion and evolution. Revoking Article 370 would ensure stability, market access, and predictable laws in the Kashmir, which could help it in gaining investment, especially in critical sectors like tourism, agriculture, etc. Thus, repealing Article 370 is an even-handed step taken by the G.O.I. for the betterment of both, i.e., the State and the Nation.
ABOUT THE AUTHOR
Jaskaran Singh Saluja is a 4th-year law student at the Institute of Law, Nirma University, Ahmedabad.
In Content Picture Credit: The Financial Express
Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.
Hey, you mention that Pakistan has violated its international obligation to not use force by using force in the form of terror attacks. Now, these terror attacks are primarily conducted by non state organisations, arguably with some form of support by the Pakistani state. However, in the Military and Paramilitary Activities case (Nicaragua v. USA), the International Court of Justice had laid down a very high standard for attributing the acts of non state actors to states, which was the Effective Control test, according to which a state can be held internationally liable for wrongful acts conducted by a non state group only if the state exercises control over each and every activity of the non state group, and that merely supplying arms or administrative support doesn’t make a state liable. This level of control, has neither been exercised by Pakistan and neither has India portended to prove this control. In this regard, while it might be politically correct to say Pakistan is “using force” against India in Kashmir, such a legal position, in my view, is entirely untenable.
Looking forward to hear your thoughts on this.