SIBALISMS AND THE SUPREME ART OF DUPLICITOUS ARGUMENTATION

The Merriam-Webster Dictionary defines “Syllogism” as “a subtle, specious or crafty argument.” Such arguments are laced with fallacious or sophistic reasoning. Senior Congress leader and learned lawyer, Mr. Kapil Sibal used all his legal acumen, erudition and craftiness to extend arguments in the “triple-talaq” hearings before the Supreme Court of India. His arguments were so over-the-top, silly and syllogistic, that I think we need to coin “Sibalism” as a new word to describe such fallacies.

A compilation of the Top-14 Sibalisms (in my humble opinion) brought out during the triple-talaq arguments follows. I have named and explained the fallacy used in the learned counsel’s reasoning. Hope the list serves as a “1-on-1 Guide of Sibalisms”!

[Note: I have relied on media reports of Mr. Sibal’s remarks to prepare this list.]

1.    On May 11, 2017, Mr. Sibal, Counsel for the All India Muslim Personal Law Board (AIMPLB), told the Hon’ble Supreme Court:

“Triple talaq is a non-issue, as no prudent Muslim would wake up one fine morning and say 'talaq, talaq and talaq'.”

This is a ludicrous argument extended, a quintessential “Sibalism”. Not only does he imply that imprudent Muslim men do pronounce triple-talaq, but he also ignores the possibility of its abuse. Interestingly, the ambiguity/ambivalence towards gender in the sentence construction makes it appear as if Muslim women too have the right to practice it. The attempt is to downplay the seriousness of the issue and attempt legitimizing the practice. The classic “HASTY GENERALISATION” fallacy here is a tenuous inference on Triple Talaq based on an observation about a section of Muslims, namely, those who are prudent.

2.    On May 16, 2017, the Learned Counsel is report to have stated:

“The point is once you start interfering in it, where do you go? ...Consequences of this are enormous…We can’t even imagine the consequences”.

The “fear mongering” in the argument is typical of the “SLIPPERY SLOPE” fallacy, wherein Mr. Sibal has warned of the small first step of the Court “interfering in triple-talaq” could culminate in “significantly negative consequences”. Fortunately for us, the snowball effect though is not spelled out in black and white as a threat though. Thank God for small mercies!

3.    On the same day, that is, March 16, 2017, he posed in his submissions:

“Why is the Centre so keen to raise doubts about the constitutional morality of Muslims' faith in the 1400-year-old practice of triple talaq…Who is the government to say that triple-talaq, evolved through social and family norms, is “un-Islamic.”

It is a fact that many Islamic scholars believe that apostasy in or renunciation of Islam is punishable by death. Yet, Government (or, rather, the Constitution, to be precise) confers on all citizens the freedom to convert from one faith to another as a fundamental right. Then again, some Islamic theologians quote the Quran to incite Muslims into waging violent Jihad against non-Muslims (infidels). But, any such violence against other religions is proscribed under our Constitution. Passionate rhetoric aside, the Counsel’s attempt in his argument─ a great example of the “RED HERRING” fallacy─ is to divert attention from “constitutional validity” of triple-talaq to the unrelated issue of the powers of government to question “morality of faith” and “conformity of practice with religion.”

4.    Further, on the same day, he went on record to say:

"If I have faith that Lord Rama was born at Ayodhya, then it's a matter of faith and there is no question of constitutional morality. And why should court interfere? Similar is the case with triple talaq."

Courts indeed are seized of the matter on whether Ayodhya is the birthplace of Lord Rama. Be as it may, triple talaq is not a matter of faith, but of customary practice. Various practices (e.g., Dahi Handi, Jallikattu, entry of women into Haji Ali Dargah, etc.) have been repeatedly questioned by the courts. By citing the Ayodhya example, the “FALSE ANALOGY / EQUIVALENCE” fallacy here is to equate the “harmless belief about the birthplace of an avatar of God” with the “practice of triple-talaq, which infringes on gender equality”.

5.    He later proclaimed:

“Sharia is personal law and not subject to fundamental rights.” 

Some Islamic clerics claim stoning for adultery and murder is an integral, mandatory part of Sharia. So, should such inhumane punishment be incorporated in our justice system as a form of retribution and/or deterrence? Nevertheless, the linking of the two assertions, namely, “Sharia is personal law” and “it is not subject to fundamental rights,” in the same sentence is a logical jump, typical of a “NON-SEQUITUR” fallacy. Despite being personal law, Sharia can either be subject to fundamental rights or not.

Further, the argument is a “BEGGING THE QUESTION” fallacy, because it provides the conclusion that “Sharia is not subject to fundamental rights” as a premise.

6.    Then again, it is reported that he averred:

“There should be reform, but it has to come from within the community. Others cannot dictate to us how we should reform. Many customs and usages practised by the Hindus need to be kicked out. But leave it to the communities to do so.”

Oh boy, isn’t the validity of customs and usages tested on the touchstone of the Constitution day in and day out? I mean, haven’t degenerate practices like untouchability, devadasi, dowry prohibition, human sacrifice, etc. been stopped through judicial intervention and legislative reform? Nonetheless, the point here is who has decreed that “reform should come from within”? No statutory norm, constitutional tenet or governmental authority has endorsed or proclaimed such a mechanism for social and religious reform. Mr. Sibal’s anointment of community for driving reform is a fabricated source of authority. Consequently, he constitutes the “FALSE ATTRIBUTION” fallacy.

7.    On the same day, he also alleged as follows:

“When it comes to Hindu law, you protect all customs but when it comes to Muslims, you start raising questions over customs. Like when it comes to Dowry prohibition Act or Guardianship Act you follow customs and protect them…Hindu laws of divorce and succession are more discriminatory than triple talaq.” 

The argument comes across as a pathetic sob story no doubt. Nonetheless, invoking victimhood to gain sympathy is at the crux of the argument, which adopts a “yo-mama” kind of stance to deflect the discourse in the “APPEAL TO HYPOCRISY” fallacy. In this “Whataboutism” though, Mr. Sibal forgets that the Dowry Prohibition Act was actually enacted to counter the widespread practice of dowry in Hindu communities. Consequently, his allegation is wild and hollow

8.    Finally on March 16, 2017, Kapil Sibal noted as follows:

“Many women in the Hanafi School accept it as a valid form of divorce. Majority of the Prophet's companions considered it good…It may be bad, it may be sinful, but women accept it.”

Just because some women accept triple-talaq (indeed there is no evidential or objective basis for the claim) does not mean that it is acceptable to ALL Muslim women. Neither does it indicate that the practice does not infringe on fundamental rights of women enshrined in Articles 14 and 15. The farfetched claim of Mr. Sibal is characteristic of the “FALACY OF COMPOSITION”. Indeed, he has inferred that “all” Muslim women accept triple-talaq, based on the presumable fact that the practice is acceptable to “some” Muslim women.

9.    On the next day, that is, May 17, 2017, Mr. Kapil Sibal submitted as follows:

“Just because a certain section of people was aggrieved by their personal laws, does not warrant a case to seek reform in the area.” 

Preposterous! Mr. Sibal had only declared the previous day that reform must come from within the community. But, with regard to the voices of dissent/reform raised from within the Islamic community against triple-talaq, he makes a complete U-turn by stating that it does not warrant the seeking of reform! Such selective use of facts is referred to as “CARD-STACKING” fallacy.  

10. Further, on the same day he noted:

“The Muslim community is like small birds on which golden eagle preys…the community's nests must have the Supreme Court protection."

An absolute shocker of a remark! Those comments are appropriate for a political harangue, not an argument in a judicial proceeding. What has the size of a section of society got to do with the legality or otherwise of its practices. It is patently clear that Mr. Sibal’s attempt here is to take the focus away from the “lawfulness or unlawfulness of a customary practice” to the “protection of minorities and their interests” in this “STRAW MAN ARGUMENT”, yet another fallacy in his submissions before the Apex Court.  

11. Later on he observed:

“Only 0.4 per cent is practising it (triple-talaq) and this is not a ground to strike it down.”

Hey! Only 0.01 per cent of the population are murderers. So, should they all be given free passes and not punished? Laughable indeed! The attempt at trivializing the practice notwithstanding, it behooves Mr. Sibal to realise that just 0.4% of the population of 200-million Muslims is a humongous number. Indeed, triple-talaq affects almost a million people. It is as if Mr. Sibal is saying: “it cannot be imagined how a practice affecting only 0.4% of people can be struck down. Hence, it must not be struck down.” The reasoning in the statement indeed is anchored in the “APPEAL TO COMMON SENSE” fallacy.

12. Then during hearings on May 18, 2017, Mr. Sibal claimed as follows:

“If there is a consensus among Muslim scholars that it is a practice then it is valid.”

A cursory reading of the ludicrous assertion shows that in Mr. Sibal opinion Islamic experts should concur to declare triple-talaq as a “practice”. There is no need to qualify the practice as “valid”, mind you. That in and by itself is enough to accord validity or sacramental sanctity for the practice. Indeed there is no dispute that the practice exists. However, the controversy is about whether the practice violates the fundamental rights of Muslim women, as enshrined in our Constitution. Besides, there is no consensus per se among Muslim scholars (in particular, Shia clergymen have openly denounced the practice as sinful and invalid). Therefore, the argument falls under the “FALSE AUTHORITY” fallacy. Clearly, Muslim scholars cannot be the arbiters of constitutional validity of triple-talaq.

13. Furthermore, he declared:

“There is nothing in the Quran which says triple talaq is not valid.”

All that I can tell Mr. Sibal is that the Quran does not prohibit the use of loudspeakers for azaan either. Yet, the Apex Court has banned the practice since noise pollution in the wee hours of morning violates the fundamental rights of people in the neighborhood. Similarly there is nothing in the Quran that proves triple-talaq is valid either, for the practice began in 637 AD (as admitted by the learned Counsel himself) after the death of the Prophet. The ingenuity here lies in the implication that somehow there is divine sanction for the practice. Thus, the reasoning is logically flawed since it suffers from the “DIVINE FALLACY”.

14. On that day, he further pleaded: 

“Lots of thing are happening in the society which are protected by customs. The court is not here to decide what is a sinful practice in the world…We are talking about rule of law.”

Guess this is the most hilarious of them all. The Learned Counsel has tied himself into knots with his argument. Sure enough customary practices do exist in society, provided they are constitutional valid. Customs that are ultra vires the Constitution have been held to be unlawful. For example, restrictions on the entry of women to the Haji Ali Dargah have been done away with.  

Indeed it is the duty of the Court to decide whether a certain practice, sinful or kosher or otherwise, is in contravention of fundamental rights and the rule of law. It is admitted that triple-talaq is ‘sinful’. Consequently, the controversy before the Court is whether the customary practice in question curtails individual rights under the Constitution of India, the supreme law of the land. Mr. Sibal provides incomplete details/evidence in his statements. Consequently, his tenuous argument suffers from the “CHERRY PICKING” fallacy.

These “Sibalisms” may not be all. Perhaps more gems can be found if the entire transcript of Mr. Sibal’s arguments were to be scrutinised. And to tweak an expression borrowed from former Minister, Mr. Shashi Tharoor, the list does constitute a “farrago of deceptions, misinformation and outright lies”.

In the interest of not only gender justice, equality and dignity, but also constitutional supremacy, I am confident that the Apex Court will see through the fallacies in the arguments. Indeed, justice shall prevail eventually!

Jai Hind!

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 and the Intention of the Framers of the Indian Constitution

My earlier post analyzed the “mechanics” of Article 370 by deconstructing its text syntactically and semantically.

My conclusion in that post was that the text of the Article is plain and straightforward enough to permit its abrogation. Others, howeer, use abstruse, convoluted arguments to obfuscate the issue. For instance, Sri. Mani Shankar Aiyar in his book, ‘Confessions of a Secular Fundamentalist’ cites four reasons that Sri. N. Gopalaswami Ayyangar, Member of the Drafting Committee, had given during the Constituent Assembly debates to justify the existence of Article 370. Yet, he runs with the hares and hunts with the hounds by concluding speciously that the Article is “primarily of symbolic rather than substantive value...”

While it is difficult to fathom Sri. Aiyar and his ilk’s lopsided “symbolic, yet special” characterization of Article 370, one cannot argue against the attempt to peep into the minds of our Founding Fathers, the framers of the Constitution, to understand the true legislative intent behind the provisions thereunder. Indeed, careful scrutiny of the transcripts of the Constituent Assembly (of India) debates is an accepted, prudent practice for gleaning the true intention and purpose behind any constitutional provision.

What is a Constituent Assembly?

A constituent assembly (also referred to as a constitutional convention or assembly) is a form of representative democracy. It is a body or assembly of representatives composed for the specific purpose of drafting and/or adopting a constitution. The assembly is dissolved after a relatively short time once it has drafted/adopted the constitution.

In this context, it has to be borne in mind that constitutional law is created in many ways. At times, a sovereign law-giver, say, a monarch, lays down the constitution for all his subjects and later generations. Other times, a constituent assembly is elected democratically through universal suffrage for the sole task of penning a new constitution. There are, of course, all sorts of intermediate arrangements between those two democratic and non-democratic extremes of the spectrum.

The Constituent Assembly of India

The Constituent Assembly was set up while India was still under British Rule. Provincial Assembly elections were conducted early in 1946. In turn, the Provincial Assemblies elected representatives to the Constituent Assembly. Thus, the Constituent Assembly, an indirectly elected body, was comprised of representatives from the Indian National Congress, Muslim League, Communist Party of India, the Unionist Party, Scheduled Caste Federation, etc. The first session of the Constituent Assembly was held on 9^th December 1946.

After all parties concerned accepted and agreed to the “Two-Nation Theory” for the partition of erstwhile India, the delegates from the provinces in modern day Pakistan and Bangladesh withdrew to form the Constituent Assembly of Pakistan. Subsequent to the transfer of sovereignty and the creation of Dominion of India on 15^th August 1947, the Constituent Assembly (of India) was expanded to include nominees from the princely states.

On 26^th November 1949, the Constituent Assembly of India adopted the draft Constitution, which took effect on 26^th January 1950. Thereafter, the Constituent Assembly continued to function as the Provisional Parliament of India till the first general elections took place in 1952.

Article 306A of the Draft Constitution

Article 370 was denoted as 306A in the Draft Constitution of India. It was inserted as a new article after Article 306, with reference to Amendment No. 379 of List XV (Second Week), as follows:

Much of the text of the draft Article 306A is the same as that of Article 370. It confirms the territorial integration of the State of Jammu and Kashmir with the Dominion of India. It has a few contextual differences though vis-à-vis Article 370, which are highlighted below.

Firstly, sub-clause (a) of Clause (1) refers to Article 211A of the Draft Constitution, which corresponds to Article 238 of the Constitution of India.

Secondly, the “Government of the State” in the draft refers to the “Maharaja of Jammu and Kashmir, acting on the advice of the Council of Ministers....under the Maharaja’s Proclamation, dated the fifth day of March, 1948...” This was eventually amended to “Governor of the State”. Further, by virtue of that Proclamation, a “popular Interim Government...pending the formation of a fully democratic Constitution” had become operational in Jammu and Kashmir.

The Maharaja’s Proclamation further empowered the Council of Ministers of that “popular Interim Government” to take appropriate steps, on restoration of normal conditions, for convening “a National Assembly based upon adult suffrage...” in, and for “the work of framing the new constitution...” of the State of Jammu and Kashmir. Thus, it was on the advice of that “popular Interim Government” and in accordance with the “Instrument of Accession” that the Maharaja of Jammu and Kashmir had consented to the insertion of Article 306A into the Draft Constitution.

Finally, Article 306A stipulates that, if the applicability of any provision(s) of the Constitution of India to the State of Jammu and Kashmir were to be notified by such suitable Order of the President prior to the convening of the Constituent Assembly of Jammu & Kashmir, after properly obtaining the concurrence of the Maharaja (i.e., either under the Instrument of Accession on consultation with or otherwise on the recommendation of the Maharaja), then such provision(s) were later required to be duly “placed before such Assembly for such decision as it may take thereon.”

It is noteworthy that this final condition in Article 306A was complied with after the formation of the Constituent Assembly of Jammu & Kashmir, which unanimously ratified the Maharaja's Instrument of Accession to India and adopted a constitution that recognised a perpetual merger of Jammu and Kashmir with the Union of India.

The Constituent Assembly Debate on Article 306A

It is well-documented history that Sri. N. Gopalaswami Ayyangar drafted the Article 306A at the behest of Sri. Jawaharlal Nehru and defended it in the Constituent Assembly. It was then tabled on the floor of the Assembly for discussions on 17^th October 1949.

Sri. Ayyangar justified the introduction of Article 306A on account of the “special”, “unusual” and “abnormal” conditions prevailing in the State of Jammu and Kashmir at that time. He asserted that conditions were “...not yet ripe for...integration (of Jammu and Kashmir with the Union)”, because of the “war going on within the limits of Jammu and Kashmir State” and the fact that part of the state was still “in the hands of rebels and enemies”. Yet, another reason cited was the fact that India was “entangled with the United Nations in regard to Jammu and Kashmir”. This was a reference to the UN Security Council resolution calling for a plebiscite in Kashmir. He also affirmed that it was not possible to say when India would be free from that entanglement.

While the foregoing were the reasons, several other averments of Sri Ayyangar, during the course of his address, shed light on the intentions, assumptions and pursued goals of the Drafting Committee that led to the incorporation of Article 306A in the Constitution. I detail hereunder some of Sri. Ayyangar's most important and relevant statements on Article 306A.

Accession and Integration of Jammu and Kashmir

For starters, he proclaimed, “The Jammu & Kashmir State, therefore, has to become a unit of the new Republic of India...accession to the Dominion (of India) always took place by means of an instrument...this has taken place in this case.” The declaration, whichever way you slice and dice the interpretation of the text, or its phraseology, leaves no ambiguity or uncertainty on Jammu and Kashmir’s accession to India. The issue at stake, in the conception of Article 306A, was about the State becoming a "federal unit" of India, and not its accession per se. Sri. Ayyangar's remarks disprove the contention, in some quarters, that the accession of Jammu and Kashmir is contingent upon Article 370 in the Constitution. They also dispel the fallacious argument that Article 370 is the link that integrates Jammu and Kashmir with the rest of the country.

Sri. Ayyangar further observed, “Instruments of Accession will be a thing of the past in the new Constitution...,” thus implying that once the Constitution of India was adopted, the Instrument itself would become redundant. Thus, the accession itself is irrevocable. 

“It is the hope of everybody here,” he continued, “that in due course even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other States...” The clear implication of “same sort of integration as....in the case of other states” is that the goal was to integrate Jammu and Kashmir in the same manner as the rest of the rest of the nation.

Commitment of Plebiscite

He further confirmed, “Commitment given to people of Kashmir to decide...whether they will remain with the Republic or wish to go out of it...by means of a plebiscite provided that peaceful and normal conditions are restored...” It is anybody’s guess as to whether the phrase “...or wish to go out of it...” implied going with Pakistan or becoming independent.

Nonetheless, there is hardly any doubt about such a plebiscite being contingent upon the restoration of “normal conditions”, i.e., external forces withdrawing from Kashmir and restoring sovereignty over all of Jammu and Kashmir to the Maharaja. 

Article 306A: Special, Temporary or Permanent?

Moving on, Sri. Ayyangar clarified, “Till a constituent assembly (of Jammu and Kashmir) comes into being, only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangement that exists in the case of the other States...it is an inevitable conclusion that, at the present moment, we could establish only an interim system. Article 306A is an attempt to establish such a system.”  

This categorically implies that Article 306A/370 was intended to be a temporary measure. No two thoughts about it!!

Besides, that interim arrangement (of Article 306A/370) was meant to be in place only till the Constituent Assembly (of Jammu and Kashmir) came into being. Hence, it is evident from Sri. Ayyangar’s words that our Founding Fathers had indeed envisaged abrogation of Article 306A/370 in the due course of time.

Later in his speech, Sri. Ayyangar confirmed, “...it is one of our commitments to the people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the State for the purpose of framing its Constitution...” Thus, in the case of Jammu and Kashmir, the Drafting Committee deviated from a tiered, federal structure inherent in the Indian Constitution, which, some have opined, provides for a “unitary State with subsidiary federal features”. The departure mirrors, to some extent, the “dual federalism” of the United States - a schema distinctly different from that of the Indian Constitution.

In short, Article 370 ushers in asymmetry in the federal structure of India. It is an aberration to the fundamental principle of “paramountcy of national interest despite federalism” enshrined in our Constitution.

Abrogation of Article 370

Finally, Sri. Ayyangar declared in his speech, “The effect of this article is that the Jammu and Kashmir State which is now a part of India will continue to be a part of India, will be a unit of the future Federal Republic of India and the Union Legislature will get jurisdiction to enact laws on matters specified... it (i.e., Constituent Assembly of Jammu & Kashmir) will make a recommendation to the President who will either abrogate article 306A or direct that it shall apply with such modifications and exceptions as the Constituent Assembly may recommend.”

These remarks pf Sri. Ayyangar make it amply clear, certain and unambiguous that the accession of Jammu and Kashmir is final and complete. It also spells out that the Framers of the Constitution envisaged either the abrogation of Article 370 or its modified application. The latter was to be on the Constituent Assembly’s recommendation, which, as we now know, never came to pass.

Hence, given our ex post facto knowledge that the Constituent Assembly of the State of Jammu and Kashmir was convened and disbanded after accomplishing its purpose, i.e., the framing of Jammu and Kashmir’s Constitution, the only option left on the table today is the abrogation of the Article.

The Bottom-line

Article 370 was always meant to be a temporary provision. It has outlived its usefulness. The Framers of the Constitution intended that it be abrogated (or appropriately modified) eventually.

The argument that abrogation of Article 370 would require reconvening of the Constituent Assembly of Jammu and Kashmir is preposterous and mischievous. It is akin to claiming that any repeal or amendment of an Article in the Indian Constitution requires the re-institution of the Constituent Assembly of India. As has been highlighted earlier in this article, all Constituent Assemblies are always dissolved after adoption of the respective Constitutions, which then provide for corresponding mechanisms for constitutional amendments.

Nevertheless, with the Constituent Assembly of Jammu and Kashmir disbanded on completion of its task of framing the J&K Constitution, what purpose is Article 370 serving? What is the need for, as Mani Aiyar puts it, the "symbolic presence" of Article 370 in the Constitution?

On the flip side, if indeed the Article was really meant to be a necessary provision, and not temporary, why hasn't Parliament made it permanent? 

Needless to say, any objective evaluation of the Constituent Assembly debates proves that Article 306A was meant to be transient and that its abrogation does not present any problem whatsoever about Jammu and Kashmir's accession to or integration with India.