Legal aspects of repealing Article 370

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Dr Muhammad Khan
THE Indian Government’s ultimate step of revoking Article 370 of Indian Constitution which ends the special status of the state does not affect the disputed nature of the State of Jammu and Kashmir. The final disposition of entire state has to be made by the people of the erstwhile Princely State of Jammu and Kashmir as enunciated in United Nations Security Council (UNSC) Resolution No. 91 of 30 March 1951, which was reiterated by UNSC Resolution No.122 of 24 January 1957. These Resolutions were adopted by UNSC at two different timings, once it was anticipated that Indian Government is conspiring against the disputed status of the State. The origin of this conspiracy can be traced from the recommendations made by Jammu and Kashmir National Conference, the only leading political party of the Indian occupied Kashmir. National Conference through its resolution passed on 27 October 1950 recommended convening the Constituent Assembly of the state.
Elections of the First Constituent Assembly of occupied Jammu and Kashmir were held in August-September 1951 which was totally rigged. All Indian Prime Minister Nehru wanted from this puppet Constituent Assembly was to frame the State’s Constitution and to give a ‘reasoned conclusion for accession of Jammu and Kashmir with the Indian Union. Smelling a conspiracy of Indian Government right from ordering for such an Assembly, UNSC through its Resolution No.91 dated 30 March 1951 put restrictions to the mandate of the Constituent Assembly. Resolution No.91 of UNSC clearly stated, “The final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations. Affirming that the convening of a Constituent Assembly as recommended by the General Council of the “All Jammu and Kashmir National Conference” and any action that Assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State.
The unambiguous wordings of UNSC through its Resolution No.91 deterred India from taking an absolute step about the future status of the State of Jammu and Kashmir. While Nehru continued finding ways for the State’s accession with India, Sheikh Abdullah stressed on independence of the State. This difference of opinion between two close friends ultimately ended over the dismissal of Sheikh Abdullah as Prime Minister of Jammu and Kashmir by Indian Prime Minister Nehru in August 1953. This paved the way for Nehru to manipulate the Constituent Assembly of the State, which voted to ratify State’s accession with the Indian Union on 6 February 1954.
However, since the Constitution for the State was not yet finalized which took another two years by the Constituent Assembly to finalise. Finally, the Constitution of the Indian-occupied State of Jammu and Kashmir was formally adopted by the Constituent Assembly on 17 November 1956 which was to be entered into force on 26 January 1957. Before it could be done, UNSC passed another resolution; UNSC Resolution No.122 on 24 January 1957 barring any action by the Constituent Assembly from making any unilateral change in the status of Jammu and Kashmir. It was, indeed, a reiteration of UNSC Resolution No.91. Thereafter, India dared not to change the disputed nature of Jammu and Kashmir State, until the extreme step of BJP Government under Modi on 5 August 2019.
The above-mentioned debate was aimed to put the whole process of repealing Article-370 of Indian Constitution into a legal perspective. Indian Government repealed Article 370 of its own Constitution without consent or request of elected Government of occupied Jammu and Kashmir, since there is Presidential Rule in the IoK for the last one year. It was Indian occupied Jammu and Kashmir Constituent Assembly which adopted Article 370, as a temporary and transitional provision, until final disposition of the State as per wishes of its subjects through impartial plebiscite.
Logically speaking, after revoking Article-370 on 5 August 2019, IOK stands independent to take any decision about its future, as this was the only Article creating a linkage between India and occupied State of Jammu and Kashmir. It is only through massive military deployment with imposition of curfew in the entire (occupied) Jammu & Kashmir that India has just announced the repealing of Article 370. There is a serious legal challenge to unilateral Indian decisions of revoking Article 370 and dividing the occupied state into two separate entities; “Jammu and Kashmir will be a union territory with legislature while Ladakh will be a union territory without legislature”. This is a clear violation of all UN Resolutions. Over and above, it is violation to the Constitution of Indian occupied Jammu and Kashmir. Amit Shah saying that, all changes were agreed to by the state government is a big joke, since there exists no government in the occupied territory.
With Presidential Rule, imposed in the State, Indian President cannot take decision about the future status of State. As per Indian senior Supreme Court advocate Akhil Sibal, “If there is President’s Rule, then how does that work? Does it fulfil the requirement? That to my mind would be the legal fault line.” It means New Delhi is consulting New Delhi for making a non-entity as an Indian entity. It is nowhere in the world, not covered in the Indian Constitution even. Had there been such a provision the shroud Indian Prime Minister, Mr Nehru could have done it in the 1950s. Indeed, Modi’s BJP is doing all this for making the demographic changes in the State of Jammu and Kashmir with the aim to convert Muslim majority into a minority by depriving the Kashmiri nationals from their own properties and nationhood.
It will not be possible for India to do it by repealing Article-370. These rights of Kashmiris are protected in the Constitutions of Indian occupied Jammu and Kashmir which remains un-affected despite revoking Article-370 of the Indian Constitution. Pakistan must knock the door of United Nations and refer the developments in the IoK to UNSC forthwith. There already has been needless delay at Islamabad. Pakistan must seek for UN intervention and an arrangement on the pattern of UNSC Resolutions 91 and 122. The above-mentioned two UN Resolutions provide Pakistan with sufficient grounds, forcing India Not to change the current status of the occupied state, until a final disposition of the State as per its resolutions.
— The writer is Professor of Politics and International Relations at International Islamic University, Islamabad.

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