The Constitutional Conundrum of Article 370 and Case Law Research

My earlier blog posts on the vexatious issue of abrogation of Article 370 have focused on the following elements:

1. A textual assessment of the provisions of the Article;
2. The Constituent Assembly of India debate on the Article;
3. The United Nations resolutions on the Jammu and Kashmir issue; and,
4. The historical backdrop leading to the accession of the erstwhile princely State of Jammu and Kashmir with India. 

In this piece, I look at Supreme Court judgments related to Article 370 of Constitution of India to glean insights on its interpretation and the ramifications thereof.

Value of Precedents

The Hon’ble Supreme Court has observed [by quoting Maxwell in Vishnu Pratap Sugar Works (Private) Ltd. v. Chief Inspector of Stamps, UP; AIR 1968 SC 102] that "a statute is an edict of the Legislature". Further, the Apex Court has stated [in RMD Chamarbaugwala v. Union of India; AIR 1957 SC 628] that the court has "to ascertain the intent of them that make it." As Salmond has espoused, the "duty of judicature is to act upon the true intention of the legislature - the sententia legis."

Indeed, the essence of law lies in its spirit, not in its letter; for the letter is significant only as being the external manifestation of the intention. Besides, Pattanaik, J. has opined [in District Mining Officer v. Tata Iron & Steel Co. in SLP(Civil) 13102 and 13107 of 1996 judgment] that "if a statutory provision is open to more than one interpretation, the Court has to choose that interpretation which represents the true intention of Legislature". MN Venkatachalliah, J., who has referred [in Dinesh Chandra Jamanadas Gandhi v. State of Gujarat, AIR 1989 SC 1011] to such true intention of Legislature as the ‘legal meaning’ of statute, has eloquently distinguished it from literal meaning.

Thus, it has been observed [in State of Haryana v.Sampuran Singh, AIR 1975 SC 1952] that courts, faced with special case situations, have "creatively to interpret legislation."

The marginal moulding or fine-tuning of legislation during adjudication forms a vital source of law. Judicial decisions on such "gray areas" of statute not only eliminate ambiguity, but also establish precedents. Precedents possess the force of law and are binding in subsequent proceedings, if only till such time that the precedent is either over-ruled or made superfluous through legislative amendment.

Few Principles of Interpretation of Statutes

In general, Courts strongly lean against a construction which reduces the statute to a futility. Thus, the Apex Court had held [in CIT v. S. Teja Singh, AIR 1959 SC 352] that: "A statute or any enacting provision therein must be so construed as to make it effective and operative ‘on the principle expressed in the maxim: ‘ut res magis valeat quam pereat.’" Consequently, courts, while pronouncing upon the constitutionality of a statute, start with a presumption in favour of constitutionality and prefer a construction which keeps the statute within the competence of the Legislature.

Yet, it may be possible to declare a ‘statute void’ theoretically in case of "absolute intractability of the language used" [M Pentiah v. Veeramallappa Muddala, AIR 1961 SC 1107], or when "it is impossible to resolve the ambiguity," or when "the language is absolutely meaningless" [Tinsukhia Electric Supply Co. Ltd., v. State of Assam, AIR 1990 SC 123].

Other rulings have declared an "enactment as void for vagueness" [Kartar Singh v. State of Punjab, JT 1994 (2) SC 423]. The same sentiment has been expressed in cases where "...persons applying it (the law in question) are in boundless sea of uncertainty" [KA Abbas v. Union of India, AIR 1971 SC 481]

The Apex Court too has given up its earlier rigid view that "...Constituent Assembly... debates... cannot be admitted as extrinsic aid to the construction of the Constitution" [State of Travancore v. Bombay Co.Ltd., AIR 1952 SC 366] in its later judgments. Thus, it was observed [in Indira Sawhney v. Union of India; AIR 1993 SC 477] that, "the debates in the Constituent Assembly can be relied upon as an aid to interpretation..."

Interpretation of Article 370

With the above backdrop, let us take a look at the Article in question. The provisions of  the Article are in the picture below:

Non obstante Clause

As can be seen, Article 370(1) begins with the non obstante clause of:

"Notwithstanding anything in this Constitution..."

The question has been raised on whether a non obstante clause comes in the way of testing the provision against the touchstones of basic features of the Constitution. The Supreme Court has answered that question in the negative. It has ruled that in spite of such a clause, the principle that no constitutional amendment can be made so as to damage any basic feature of the Constitution shall prevail.

Accordingly, in P Sambamurthy v. State of Andhra Pradesh (AIR 1987 SC 663), Art. 371D (5) was declared unconstitutional in spite of the presence of the non obstante clause in Article 371D (10). Again it has been argued in RC Poudyal v. India (AIR 1993 SC 1804) that since Art.371F opens with a non obstante clause, other provisions of the Constitution cannot limit the power of Parliament to impose conditions under Clause (f). But, the SC rejected the contention.

Thus, in view of the above precedents, it is clear that Article 370(1) is not etched in stone. All of Article 370(1) indeed must to be interpreted within the framework of the Constitution. And, if the Constitution in its entirety permits abrogation of the Article 370(1), then the non obstante clause imposes no fetters on such an endeavor.

Exemptions and Modifications of the President

Interpretation of the phrase "...other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications..." has been another hotbed for legal argument. The Supreme Court has refused to subscribe to the view that the word ‘modification’, as used in Article 370(1) (d), is to be interpreted in a ‘narrow or pedantic sense'. A Constitution Bench has held [in Puranlal Lakhanpal v. President of India; AIR 1961 SC 1519] that "...the word 'modification' used in Article 370(1) must be given the widest meaning in the context of the Constitution and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any 'radical transformation'."

In the opinion of the Hon'ble Court, the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. Hence, if the President has the power "to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir", then the power to make modifications must be considered in its widest possible amplitude.

Indeed, the ratio decidendi behind the judicial decision of the Hon'ble Court in the Puranlal Lakhanpal case is impeccably rock solid!

The Supreme Court of India has further bolstered this view in a subsequent case [Sampat Prakash v. State of Jammu & Kashmir; AIR 1970 SC 1118], wherein it held that the power under the Article 370 includes the power to add, amend, vary or rescind. The rationale provided for the decision was based on the provisions of Article 367, which references the General Clauses Act, 1897. Under Section 21 of that Act, a power to issue a notification or order includes a power to add, amend, vary or rescind such notification or order.

Thus, Article 370 confers the President of India with wide-ranging powers to alter the powers and privileges applicable to the State of Jammu and Kashmir under the Constitution of India.

Consultation with the Government of the State

Article 370(1) stipulates 'consultation with the Government of the State' as a pre-requisite for any exception or modification of provisions of the Constitution that relates to the matters specified in the Instrument of Accession. As Chandrachud, J., has explained [in Union of India v. Sankal Chand Himatlal Sheth; AIR 1977 SC 2328], "deliberation is the quintessence of consultation." Further, the Apex Court has elaborated [in MM Gupta v. State Of Jammu & Kashmir; AIR 1982 SC 1579] that "consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views."

Consequently, so long as the view of the Governor of the State of Jammu and Kashmir is elicited, the President is empowered to specify the applicability of provisions of the Constitution of India with regards to matters in the Instrument of Accession, with suitable modifications or otherwise.

Advice of the Council of Ministers

The Explanation to Article 370(1) dictates that the advice of the Council of Ministers is necessary. Some ambiguity exists on whether the term 'Council of Ministers' refers to the Union Government or to the State Government. Nevertheless, as I had pointed out in my earlier post, it is the President who accords recognition to the Governor of the State.

Article 74 of the Constitution of India indeed indicates that the President shall "act in accordance with the advice tendered" by the Council of Ministers and that such advice of the Council is binding.

Nevertheless, the Supreme Court examined, in Shamsher Singh v. State Of Punjab; AIR 1974 SC2192, whether the President or the Governor is bound to act on aid and advice of Council of Ministers. The seven-judge Constitution Bench in that case held:

"The President as well as the Governor is the constitutional head or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion."

The sum and substance of the above is that the power of Parliament, to make laws applicable to the State of Jammu and Kashmir, is not only wide-reaching, but also pretty much absolute. It further establishes the paramountcy of the Union Government over the State of Jammu and Kashmir.

Concurrence of the Government of the State

In Mohd. Maqbool Damnoo v. State Of Jammu and Kashmir; AIR 1972 SC 963, a five-judge Constitution Bench of the Supreme Court ruled:

“The essential feature of Article 370 sub-clause (1) (b) and (d) is the necessity of concurrence of the State Government or the consultation of the State Government. What the State Government is at a particular time has to be determined in the context of the Constitution of Jammu and Kashmir....There is no difficulty in holding that Article 370(1) (b) and Article 370(1) (d) place no limitation on the framing and amendment of the Constitution of Jammu and Kashmir. If there is a limitation it must be found in the Constitution of the State.”

Article 147 of the Constitution of Jammu and Kashmir though prohibits amendment of the following Articles:

1. Article 3, which declares that "the State of Jammu and Kashmir is and shall be an integral part of the Union of India;"
2. Article 5, which stipulates that "the executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India;"
3. Article 147, which makes provisions for the Amendment of the Constitution (of Jammu and Kashmir); and,
4. The provisions of the Constitution of India as applicable, in relation to the State.

As can be seen above, the Constitution of Jammu and Kashmir imposes no constraints or restrictions on who can be or cannot be deemed as the State Government under the Constitution of India for according such concurrence to the "power of Parliament to make laws for the State of Jammu and Kashmir on matters not in the Union and Concurrent Lists."

Therefore, it is unfortunate that an eminent advocate like Mr. AG Noorani in his book, The Kashmir Dispute 1947-2012, has criticised the Hon'ble Supreme Court for validly and correctly holding (in the Mohd. Maqbool Damnoo case), as per the Sixth Amendment of the Constitution of Jammu and Kashmir, that "the Government of the State means...the Governor of the State".

Recommendation of the Constituent Assembly

Another contention of Mr. Noorani is that, "Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution which apply to all the other States; namely, Article 368. For, in relation to Kashmir... that (read: such amendment) requires the concurrence of the State's government and ratification by its Constituent Assembly."

Once again Mr. Noorani is on the wrong side of the legal argument. My reasoning is based on the Doctrine of Impossibility (a common tenet of Contract Law), which has been eloquently explained by the Supreme Court in the Narmada Bachao Andolan v. State of MP judgment on 11 May, 2011, as follows:

"The Court has to consider and understand the scope of application of the doctrines of "lex non cogit ad impossibilia" (the law does not compel a man to do what he cannot possibly perform); "impossibilium nulla obligatio est" (the law does not expect a party to do the impossible); and impotentia excusat legem in the qualified sense that there is a necessary or invincible disability to perform the mandatory part of the law or to forbear the prohibitory. These maxims are akin to the maxim of Roman Law, “nemo tenetur ad impossibilia (no one is bound to do an impossibility) which is derived from common sense and natural equity and has been adopted and applied in law from time immemorial. Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse....

...Thus, where the law creates a duty or charge, and the party is disabled to perform it, without any fault on his part, and has no control over it, the law will in general excuse him. Even in such a circumstance, the statutory provision is not denuded of its mandatory character because of the supervening impossibility caused therein."

Now, let us assume obtaining the 'ratification of Constituent Assembly of Jammu and Kashmir' is a duty cast on the President, under the Constitution of India, for any amendment or abrogation of Article 370. Then, by virtue of the Doctrine of Impossibility, the President cannot be expected to comply with a provision that is rendered impossible because of the dissolution of the Constituent Assembly of Jammu and Kashmir. A point to be noted here is that the Constituent Assembly of Jammu and Kashmir passed a resolution on 17 November, 1956, “declaring that the Assembly will stand dissolved on 26 January, 1957, having completed the work (i.e., the drafting of the Constitution of Jammu and Kashmir) entrusted to it."

Indeed, the President of India cannot be faulted for the dissolution of the Constituent Assembly of Jammu and Kashmir.

Article 370 and the Basic Structure of the Constitution

The Hon’ble Apex Court of the country held [in the seminal Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461] that the power to amend the Constitution is to be found in Article 368 itself. It was emphasized that provisions relating to the amendment of the Constitution are some of the most important features of any modern Constitution.

Further, the Full Bench of the Supreme Court, which decided the case (split verdict), did not concede an unlimited amending power to Parliament under Article 368. The amending power was subjected to one very significant qualification, viz., that the amending power cannot be exercised in such a manner as to destroy or emasculate the basic or fundamental features of the Constitution. A constitutional amendment which offends the basic structure of the Constitution is ultra vires.

The following features of our Constitution were identified by their Lordships as constituting the 'basic foundation and structure of the Constitution':

1. Supremacy of the Constitution; 
2. Separation of powers between the legislature, the executive and the judiciary; 
3. Republican and democratic form of Government; 
4. Secular and federal characteristics of the Constitution; 
5. Dignity of the individual secured by the various fundamental rights and the mandate to build a welfare state contained in the directive principles; 
6. The unity and integrity of the nation; and 
7. Parliamentary system.

Subsequent judgments of the Supreme Court have added 'protection and sustenance of the purity of the electoral process' [in Kihoto Hollohon case; AIR 1993 SC 412] and 'rule of law' [in Indira Gandhi v. Raj Narain; AIR 1975 SC 2299]. In a plethora of other cases, the Hon'ble Court has asserted that the independence of judiciary is not only a basic feature of the Constitution [Indian Hotel & Restaurants v. The State of Maharashtra; 2006(3) BomCR 705], but also a most essential characteristic of any free society [MB Sanghi, Advocate v. High Court of Punjab and Haryana; AIR 1991 SC 1834]

Any objective study of the various aspects, identified by Courts as comprising the basic structure of our Constitution, will show that no way can Article 370 be treated as a basic characteristic, which can neither be amended nor abolished.

Amendment of Article 370 under Article 368

There is no doubt that Article 370 was designed to be of a temporary nature. It was included, as explained by Sri. Gopalaswami Ayyangar, due to special circumstances prevailing in that State at that time (refer my post on the Constituent Assembly of India debates).

Article 370(3) states that the President, by public notification, may declare that Art. 370 shall cease to be operative, or shall be operative only with such exceptions, and modifications, and from such date as he may specify. But, the proviso to Article 370(3) provides that before the President can issue any such notification, the recommendation of the Constituent Assembly of the State 'shall be necessary'.

Since the Constituent Assembly of the State exists no more, Article 370(3) is no longer operative. Therefore, if any modification is to be made to Article 370, recourse will have to be had to Article 368, which pertains to amendment of the Constitution of India.

Needless to say, reconvening the Constituent Assembly of Jammu and Kashmir, for ratifying any constitutional amendments which relate to that State, is preposterous. It is tantamount to claiming that to amend the Indian Constitution one needs to resurrect the Constituent Assembly of India.

As is well known, a constituent assembly (also referred to as constitutional convention or assembly) is a body of representatives assembled for the purpose of drafting and adopting a constitution. A constituent assembly, a form of representative democracy, is usually set up for its specific purpose, which it carries out in a relatively short time. The assembly is then dissolved. Subsequent to such dissolution of the Constituent Assembly, constitutional amendments are accomplished through procedures specified in the Constitution itself.

Conclusion

To recapitulate the foregoing review of applicable case law, it is amply clear and certain that no precedent either restricts the amendment or prohibits the abrogation of Article 370. Nonetheless, given the political milieu within the country, the Union Government needs a tenacious spine and copious spunk to broach the subject of Article 370’s utilitarian value.It would be a major achievement if the Government could force a frank and forthright debate on the topic.

But, does the Prime Minister have the fortitude to stop pussyfooting and take the bull by its horns?

I, for one, surely hope so!!

The Pre-Independence History and Geography of Jammu and Kashmir - A Legal Perspective

Despite seeming farfetched, the history and geography of Jammu and Kashmir are intricately intertwined in the lead-up to the Instrument of Accession. Hence, a clear understanding of the 'geo-historical' backdrop is a conditio sine qua non for any meaningful dialogue on the legality, and the morality too if you like, or otherwise of Article 370.

In this piece, I analyze the legal issues surrounding the geopolitical landscape of the State of Jammu and Kashmir, if only to debunk the absurd, unfounded claims and notions of some about the validity of its accession to India. Questions are often posed on even the terms of transfer of sovereignty to the ruler of the State during the British Raj.

'Confuse, if you cannot convince' is seemingly the modus operandi of some of these intellectuals and thought leaders. Nevertheless, they have sullied and muddied the waters so much that many wrongly believe that the accession of Jammu and Kashmir is somehow faulty and flawed.

So then, for starters, let me begin with a description of the geographic region subjected to the exposition herein. The erstwhile princely State of Jammu and Kashmir, which existed in India from 1846 to 1947 during British rule, consisted of the present-day Indian State of Jammu and Kashmir (inclusive of the Ladakh region); the territories of Azad Kashmir and Gilgit-Baltistan under Pakistani control currently; and, Aksai Chin, a part of the Xinjiang Autonomous Region, which is under Chinese administration now.

Brief History of the Region

Till 1846, the Jammu, Kashmir and Ladakh regions, of the modern-day Indian State of Jammu and Kashmir, were separate and distinct areas under different rulers.

Most historians trace the history of Kashmir to the third Century BC. During the second and third century BC, it was part of Emperors Asoka (of the Mauryan dynasty) and Kanishka's (of the Kushan dynasty) empires. Later, Kashmir became the target of several attacks and invasions. So, it was under the rule of several kings and dynastic rulers, including the White Huns (Hephtalite Empire), Karkotas, Utpalas, etc.

In the 14^th century AD, Shah Mir ascended the throne of Kashmir as its first Muslim Ruler. The Shah Mir dynasty ruled the region for a couple of centuries followed by the Chak dynasty.

Then in 1586 AD, the Mughal potentate, Emperor Akbar invaded and conquered the valley. Mughal rule of Kashmir lasted for over a century and half. The Nadir Shah invasion of India in 1738 AD weakened Mughal control over Kashmir.

Then in 1753 AD, a general of Ahmed Shah Abdali’s army conquered Kashmir, including the Gilgit-Baltistan region. This brought it under the rule of Afghan / Pathan governors, whom the Durranis of Kabul appointed. Finally in 1819 AD, Maharaja Ranjit Singh of Punjab invaded Kashmir and wrested it from the Pathans. For the next couple of decades, Governors appointed by the Sikh Durbar at Lahore ruled Kashmir.

Jammu: Around the time of the Afghan / Pathan rule of Kashmir, the Jammu region was under Ranjit Deo, a Dogra chief of Rajput descent. Ranjit Deo’s death in 1780 AD sparked a succession dispute among his three grand-nephews. The Sikh Durbar of Lahore exploited the situation by annexing Jammu and turning it into a dependency in 1808 AD.

Thus, the three grand-nephews of Ranjit Deo served under Maharaja Ranjit Singh of Lahore till about 1820 AD. Pleased with the services rendered, the Sikh Durbar conferred the hereditary title of Raja on the eldest brother, Gulab Singh. Many principalities within the Jammu region were awarded to the three brothers. Eventually, whole of Jammu fell into the hands of Raja Gulab Singh.

Ladakh: The Ladakh region, on the contrary, had been a part of Tibet for centuries. Suzerainty over the province frequently changed hands between Chinese and Tibetan rulers. Then in the 17^th century AD, King Bhagan reunited Ladakh and founded the Namgyal dynasty. Despite suffering a defeat at the hands of the Mughals, Ladakh retained its independence, albeit severely restricted.

Later, in 1834 AD, Raja Gulab Singh, the ruler of Jammu conquered all of the Ladakh and Baltistan regions. The map above shows the territories under Maharaja Ranjit Singh in 1838 AD. The Jammu, Kashmir and Ladakh regions, as can be seen, were a part of the Sikh empire at that time.

Creation of the Princely State of Jammu and Kashmir

In 1845, the First Anglo-Sikh war broke out between the Sikhs and the British at Sobraon in Taran-Taran District. Despite owing allegiance to the Sikhs and being asked to extend help, Raja Gulab Singh remained aloof. He avoided attacking the British under one pretext or the other. This earned him the gratitude of British diplomats.

The British eventually routed the Sikh Durbar. Raja Gulab Singh negotiated the terms for surrender of the Maharaja of Lahore. By the Treaty of Lahore of 1846, concluded between the British and Maharaja Dhuleep Singh of Lahore, the Sikhs transferred Kashmir besides the payment of a war indemnity to the British. 

Thus, the Sikh Durbar ceded (vide Article 4 of the said Treaty), to the “Honourable Company, in perpetual sovereignty, as equivalent of Rs.10 million, all its forts, territories, rights and interests in the hilly regions situated between Rivers Beas and Indus....”

The map below shows the Sikh territories after the Lahore Treaty and cession of Kashmir in 1946. 

By dint of Article 12 of the Treaty of Lahore, the Maharaja of Lahore also agreed to “...recognize independent sovereignty of Raja Gulab Singh, in such territories...as made over to the said Raja Gulab Singh, by separate Agreement between himself and the British Government...”

A week after the conclusion of the Treaty of Lahore, the British concluded the Treaty of Amritsar with Maharaja Gulab Singh. By Article I of that treaty, the British Government transferred and made over “for ever in independent possession to Maharaja Gulab Singh and the heirs male of his body...” all of Kashmir (as defined in Article IV of the Treaty of Lahore).

Thus, the princely State of Jammu and Kashmir attained sovereignty in 1846. The 1919 AD map of the State above shows the territories that belonged to the monarchic State.

The Acquisition of Sovereignty

Before examining the legal and moral issues encompassing Raja Gulab Singh’s ascent to the throne― and their impact on the accession of the erstwhile State of Jammu and Kashmir in 1948 to the Union of India― it is pertinent to summarize the international laws related to the acquisition of territorial sovereignty.

Many methods of acquisition of sovereignty are presently recognised under international law. Some were deemed lawful in the past. These methods include:

1. Accretion: it is the physical expansion of an existing territory through geological and other natural processes, such as alluvion (the deposit of sediment) or volcanism (i.e., eruption of a volcano).
2. Cession: The acquisition of sovereignty over territory through a transfer to it by another state is cession. Typically, cession is brought into effect through treaties (of cession or accession). Examples include the transfer of Hong Kong Island to United Kingdom under the Treaty of Nanking, 1842; the United States’ purchases of Alaska and the Louisiana territory through treaties with Russia (1867) and France (1803) respectively. Another example is the Convention of 1917 between the United States and Denmark for cession by transfer (i.e., sale / purchase) of the Danish West Indies (i.e., Virgin Islands). 
3. Conquest: It refers to acquisition of territory by way of force or through armed aggression. If such military intervention entails territorial cession, then there is often a peace treaty or settlement. However, on occasion, wars end in an armistice without any formal peace treaty covering it, e.g., the Korean War. Title to territory by conquest specifically involves: (a) possession of territory by force; (b) display of intention to hold; and (c) ability to retain the territory as its sovereign power. A most recent example of conquest is Israel’s capture and annexation of the Golan Heights in 1967. 
4. Occupation: It is the acquisition (or attribution) of territory either in defiance of or due to the absence of a proper sovereign. Effective occupation is the control of free, newly-discovered territory. The occupying power has typically no sovereign title or right to such land. E.g., Spain’s colonization of the Americas. Undoubtedly, by immemorial usage having the force of law, besides the animus occupandi, the actual (and not the nominal) taking of possession is a necessary condition of occupation. It usually requires that there be an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis. 
5. Prescription: It connotes the effective control of territory of another acquiescing state. Similar to occupation, it refers to the acquisition of sovereignty by way of the actual exercise of sovereign functions, over the territory in question, for a reasonably prolonged period of time. It involves the open encroachment by the new sovereign upon a territory, without either protest or other contest by the original sovereign or objection from other states. This doctrine legalizes de jure the de facto transfer of sovereignty caused by the original sovereign's extended negligence and/or neglect of the area in question. E.g., In Grisbadarna Case (1909), both Sweden and Norway based their claims on maritime territories on prescription. 
6. Adjudication: Sometimes, sovereignty over a territory is determined through legal or quasi-legal proceedings. Such adjudication is, at times, judicial. For instance, in 1908 AD the International Court of Justice transferred the Bakassi peninsula to Cameroon (from Nigeria). Other times, such adjudication is made through arbitration. For e.g., an arbitral award was made in 1899 to settle the boundary dispute between British Guyana and Venezuela.

Principles of International Law for Treatment of Territory

Roman property regime and its equitable principles of uti possidetis juris (Latin for ‘as you possess under law’) and terra nullius (again Latin for ‘land belonging to no one’) have been applied in so many different contexts that they have truly become the bedrocks of modern international law for the treatment of territory.

In the past only unoccupied territory could be legally acquired. Yet, the Americas were colonized in contravention of this prevailing principle. So, the ‘Rule of Inter-temporal Law’ was conceived to prevent judging of past actions with contemporary standards. This rule of prospective application is vital since it deems that all actions need to be judged in the strict temporal context in which they occurred. The prime aim is to prevent the finding of past injustices (e.g., colonization) against the vagaries of legal evolution. Thus, retrospective application of more modem and progressive ideas, to acts and deeds that occurred before such ideas developed, is proscribed.

Further, the doctrine of uti possidetis, which solidifies the sanctity of boundaries, does allow territorial adjustment due to consent. Yet, this consent is required between existing sovereign states. Non-state actors have no explicit right to demand territorial change even though the right to self-determination is enshrined in the two international covenants of 1966 that are the blueprint for the human rights regime.

Therefore, existing states have sought to minimize the impact of the right of self-determination by declaring it as a right that only exists in an 'internal' guise. So, in bid to access the right to self-determination, groups (of unrepresented people) often seek secession by attempting to pierce the veil of domestic sovereignty and internationalizing their conflicts with their respective state governments.

In view of the foregoing, it is clear that sovereignty over the territory of Kashmir was acquired, first by the British, through conquest and then, by Raja Gulab Singh, through a purchase. By virtue of Article 12 of the Treaty of Lahore, Raja Gulab Singh also acquired absolute sovereignty over the dependencies of Jammu, Baltistan and Ladakh too, which he already possessed.   

Critics of the Kashmir Transfer

KM Panikkar, in his 1953 book “The Founding of the Kashmir State”, says (as Justice AS Anand quotes in his book), "in discussing this question of the transfer of Kashmir, it is... important to remember (that) there was no sale of Kashmir at all." Thus, he implies that the transfer of Kashmir to Maharaja Gulab Singh was null and void because of the anomaly, to quote him, of ‘...no sale of Kashmir...’ simply because ‘no consideration’ was offered by the British (to the Lahore Durbar).

That is a preposterous argument. The Lahore Durbar relinquished its sovereignty over Kashmir in the Treaty of Lahore, thus, paving the way for the British to negotiate the terms of sale of Kashmir to Raja Gulab Singh. Hence, the transfer of sovereignty over Kashmir can be deemed to consist of two phases: (a) the cession of Kashmir to the British (as reparation for the First Anglo-Sikh War); and, (b) the sale of Kashmir to Raja Gulab Singh.

The Treaty of Lahore left it to the British Government to enter into a separate arrangement with Raja Gulab Singh for the Kashmir sale. In effect, the purchase of Kashmir (by Raja Gulab Singh) was a tripartite arrangement that was executed through two bipartite agreements, viz., the Treaty of Lahore and the Treaty of Amritsar.

Indeed Justice AS Anand submits rightly (in his book, "The Constitution of Jammu and Kashmir - Its Development & Comments")... “When you accept money in consideration for a transfer of a material thing, the transaction is nothing but ‘sale’. Undisputedly, a person cannot purchase something unless it has been sold to him and if it is sold...the transaction is a sale...”

However, Justice Anand goes on to allege that, “...at the time of the ‘sale of Kashmir’ no consideration was given to the moral effects of the deed. Millions of people were sold like sheep and cattle and the whole transaction was made behind their backs... The Treaty of Amritsar consisting of 10 articles made no mention whatsoever, of the rights, interests or the future of the people of the State. Unlimited power was transferred to a Dogra Hindu Ruler to rule over the Muslim majority population.”

With due respect to the former Chief Justice of India, this argument is untenable too. It is a red herring in toto. The Hon’ble Justice perhaps missed the forest for the trees. Indeed, from a “contracts law” perspective, the sale being of territory, the argument has some validity. However, we are talking acquisition of sovereignty over territory, not just title over property here.

The Hon’ble Justice adds, “Since, in the Indian Native States, absolute autocracy was the principal characteristic of the political life at that time; no voice was raised against this transaction in the State...but outside the State sympathy was shown towards the masses in Jammu and Kashmir.”

Again, the rationale does not hold water, if one were to go by the many examples (the Virgin Islands purchase; Alaskan purchase, etc.) cited above for acquisition of sovereignty over territory.

Concluding Remarks

It is abundantly clear that Raja Gulab Singh’s acquisition of sovereignty over Jammu and Kashmir was absolute once the Treaty of Amritsar was signed and the territory ceded to him by the British.

Thus, as the monarch of the erstwhile kingdom, he wielded supreme power and authority over the territories, resources and people of the State. As can be seen from the text of the Treaty of Amritsar, that inheritable right was passed on to Raja Hari Singh by succession (i.e., through “...the heirs male of his body...,” as specified in Article 1 of the Treaty of Amritsar).

Once Maharaja Hari Singh ascended the throne and became the sovereign head of the State, he had all powers and authority, legally, morally or otherwise, to sign the Instrument of Accession on October 26, 1947, acceding the whole of his princely state (including Jammu, Kashmir, Northern Areas, Ladakh, Trans-Karakoram Tract and Aksai Chin) to the Dominion of India.

A careful reading of The Jammu and Kashmir Constitution Act, 1934 (in particular, Article 4), will further show that the aforementioned Act did not cut, limit or curtail any of the Maharaja Hari Singh’s rights or powers over the State.

So, I pose: “Why do some thought leaders present vague, convoluted logic to question the validity of the Kashmir purchase and subsequent accession?”

Counter-arguments welcome, please!

Article 370, Kashmir and UN Security Council Resolutions

My first post on Article 370 had deconstructed the syntax and semantics of its provisions. The second one had scrutinized the Constituent Assembly debates to draw inferences on the legislative intent behind the Article. Both assessments clearly and categorically indicated that:  

• A) Article 370 was meant to be a temporary provision; and, 
• B) There are no constitutional hurdles for the Article’s abrogation. 

Nevertheless, in every public discourse on the relevance of Article 370, there is a section of intelligentsia that bandies Kashmiri aspirations and their right for self-determination vociferously. The United Nations Security Council resolutions, calling for a plebiscite in Jammu and Kashmir, are often cited to support secession from the Union of India.

Are such separatist voices in consonance with the United Nations’ directives? Do the UN Resolutions invalidate Jammu and Kashmir’s accession to India? Or conversely, do they impose any restrictions on India’s sovereignty over Jammu and Kashmir?

I explore facts and facets of accession from a UN perspective in this piece, which is a part of a series of articles on the Article 370 imbroglio.

Backdrop to UN Intervention

The accession of Jammu and Kashmir with the Dominion of India took place post independence at a time when tribesmen from Pakistan had invaded the State. The Instrument of Accession imposed on India the obligation of defending the State of Jammu and Kashmir against external aggression. Hence, Indian troops were flown into the Kashmir valley in October 1947 to drive the aggressors out.

The Indian Army soon discovered that the invaders enjoyed active assistance of the Pakistani authorities. Therefore, the only option for completely removing the raiders from Kashmir was by attacking and neutralizing their bases and supply lines across the border. No doubt, such military action would have escalated hostilities even more between the two countries. Unfortunately though, such overt aggression ran contrary to Sri. Jawaharlal Nehru’s pacifist foreign policy. Hence, on 31 December 1947, India lodged a formal complaint with the United Nations against the Pakistani belligerence.

It is interesting - to cite Sayyid Mir Qasim, a J&K politician’s remarks on page 42 of his book, ‘My Life and Times’- that Sheikh Abdullah was “...not in favor of India seeking the UN intervention because he was sure the Indian army could free the entire State of the invaders...”

Nevertheless, with the ball in the United Nations’ court, the flurry of resolutions that followed was fait accompli.

Overview of Resolutions

The first UN Security Council resolution was adopted in 1948. Resolution No. 38 of 17 January 1948 called upon both India and Pakistan to take all measures to reduce tensions between each other.

The next one, Resolution No. 39 of 20 January 1948, authorised the establishment of a Commission of the Security Council, composed of representatives of three members of the UN (one to be selected by India, one to be selected by Pakistan, and the third to be designated by the two selected), for monitoring the situation in Jammu and Kashmir and for exercising mediatory influence to carry out the orders, advice and directions of the Security Council.

The third and most substantive resolution was No. 47 of 21 April 1948. It recommended the cessation of hostilities and the creation of conditions conducive for a free and impartial plebiscite in the State of Jammu and Kashmir. It also increased the size of the United Nations Commission for India and Pakistan (UNCIP) to five. The final resolution of 1948 was No. 51 of 3 June 1948, which issued certain instructions to UNCIP.

The subsequent resolution, No. 80 of 14 March 1950, pertained to the initiation of demilitarization programme in Jammu and Kashmir. While terminating the UN Commission for India and Pakistan (UNCIP), it appointed a UN Representative to observe, supervise, facilitate and report on the demilitarization process and, at an appropriate time, to arrange for the appointment of a Plebiscite Administrator.

The resolutions of 1951, No. 91 of 30 March 1951 and No. 96 of 10 November 1951, reiterated earlier steps taken and issued relevant operational directives to the UN Representative. Subsequent resolutions of 1952 and 1957 (No. 98 of 23 December 1952; No. 122 of 24 January 1957; No. 123 of 21 February 1952; and No. 126 of 2 December 1957) continued to work towards the goals, activities and objectives set out in earlier resolutions.

Indeed there are other India-Pakistan related resolutions of the Security Council. But, they all pertain to cessation of hostilities between the two nations during their armed conflicts of 1965 and 1971.

A Note on UN Resolutions

A review of the UN Charter will show that the powers of the UN Security Council are provisioned under Chapters VI and VII. While the former deals with “Pacific Resolution of Disputes”, the latter pertains to “Threats to Peace, Breaches of the Peace and Acts of Aggression.”

Resolutions of the Security Council adopted under Chapter VI are intended to be followed and implemented through negotiations and peaceful settlement between the conflicting parties.

In contrast, resolutions adopted under Chapter VII invest the Security Council with the power to make stringent demands that mandatorily require nations to comply with the terms set forth therein. This leaves no room to the party concerned to negotiate a mutual settlement.

Implications of Resolution 47

The Security Council in that Resolution recommended:-

“...to the Governments of India and Pakistan the following measures as those which in the opinion of the Council are appropriate to bring about a cessation of the fighting and to create proper conditions for a free and impartial plebiscite to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan”.

The point to note here is that the resolution calling for a “free and impartial plebiscite” was only a “recommendation”, not either a demand or a direction mandating compliance.

More noteworthy though is the phrase “...to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan.” This most certainly and unambiguously indicates that the ‘plebiscite’ envisaged was intended to determine the issue of 'accession' and that 'independence' of Jammu and Kashmir was not an option contemplated.

Indeed, voices in the valley and beyond, endorsing the inclusion of ‘independence’ as a third alternative to their demands of right to self-determination, need to necessarily rethink the matter.

The resolution goes on to recommend that the Government of India should institute a Plebiscite Administration body, with a nominee of the UN Secretary-General as Plebiscite Administrator, who would communicate directly with “....Commission of the Security Council...”, i.e., the UN Commission for India and Pakistan (UNCIP), which was constituted with (erstwhile) Czechoslovakia, Belgium, Colombia, Argentina and USA as its 5 members.

So then, after the termination of the UNCIP vide Resolution No. 80 of 14^th March 1950, this resolution, notwithstanding its recommendatory status, has lost much of its relevance.

Implications of Resolution 91

In Resolution No. 91, the Security Council took specific note of:

1. The resolution, adopted on 27^th October 1950 by the General Council of the ‘All Jammu and Kashmir National Conference’, recommending the “convening of a constituent assembly for the purpose of determining future shape and affiliations of the State of Jammu and Kashmir...”; and 
2. The fact that “...such a constituent assembly would be elected in only a part of the whole territory of Jammu and Kashmir.”

Hence, the Security Council affirmed:-

“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 in accordance with the above principle (i.e., of the will of the people expressed through the democratic method of a free and impartial plebiscite...”

What then are the implications of this recommendatory resolution of the Security Council?

On one hand, it means that, in the eyes of the Security Council, the “Constitution of Jammu and Kashmir”, drafted and adopted by the Constituent Assembly of Jammu and Kashmir, is really not an expression of the will of the people of the State.

On the other hand, it also means that any such expression of the will of people will only be valid post a plebiscite to determine the will of the people of all of Jammu and Kashmir - i.e., inclusive of the parts of Jammu and Kashmir under Pakistani and Chinese occupation. Needless to say, such a plebiscite, for determining accession to either India or Pakistan (and not for adopting a Constitution of Jammu and Kashmir under the Instrument of Accession), can only be held after the restoration to India of all territories currently under Pakistani and Chinese control.

Locus Standi of Security Council

For determining the applicability of the Security Council resolutions, it has to be borne in mind that Jammu and Kashmir, at the time of its accession to India, was an independent, princely state, which had neither joined the United Nations (by signing the UN Charter) nor had approached the UN for any assistance with regards to the matter of its accession. Indeed, the accession of the State was the fallout of (a) the termination of British rule in the Indian subcontinent; and, (b) the negotiations preceding the partition of India and Pakistan.

Hence, it can be argued validly that the Security Council lacked the competence to reopen the question of accession of Jammu and Kashmir either at the instance of India or Pakistan. The only party which might have had a right, to demand a reconsideration of the issue of accession, was perhaps the Ruler of Jammu and Kashmir, who had signed the Instrument of Accession, or his successor in interest.

Further, it is apparent that only the question of “external aggression in Jammu and Kashmir” had been brought to the notice of the Security Council for resolution through negotiated settlement. Needless to say, the Security Council exceeded its terms of reference when it called for a plebiscite in Jammu and Kashmir. 

So then, the million-dollar question: Why did the Nehruvian government meekly accept the terms laid down in UN Resolution No. 47. Confounding, indeed!

Conclusions

In view of the foregoing arguments, it is clear that the UN Security Council had no legal competence to broach the issue of accession per se and to 'unusually', if not 'invalidly or unlawfully', call for a plebiscite. Besides, the resolutions of the UN Security Council were all adopted under Chapter VI of the UN Charter and hence were advisory in nature. Finally, India is under no obligation to abide by those resolutions, either in letter or spirit.

Thus, the demand for a plebiscite made by certain sections in Jammu and Kashmir (and rest of the world) suffers from infirmities, legal or otherwise. Regardless of the UN resolutions, any such referendum is untenable, ineffectual and inexpedient.

In this context, it must be said that any suggestion to the effect that Article 370 is the link that is holding Jammu and Kashmir and (Rest of) India together is downright ridiculous and worthy of the scorn it deserves!