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Hilal English

Indian Supreme Court’s Decision and the International Law

February 2024

The Supreme court of india’s decision definitely fails to achieve its purposes and merely serves to vindicate the chauvinistic agenda of the ruling BJP, whose avowed aim has been to restore Ram Raj in India.



On December 11, 2023, the Supreme Court of India (SCI) approved the decision taken by the Government of India in August 2019, which ended the special status and internal sovereignty of the Indian Illegally Occupied Jammu and Kashmir (IIOJK). Additionally, the decision resulted in the termination of its position as a constituent State of the Union of India, as it was divided into two parts and annexed as Union Territories. The judgment and decision of the SCI are not only against the Constitution of India, especially Articles 3 and 370, domestic opinion, and sentiment in India and IIOJK, but also contradict the binding norms of international law related to the right of peoples to self-determination and the consent given by the Indian State before the United Nations Security Council (UNSC) when it passed numerous resolutions in the 1940s and 1950s.


Article 370 was included in the COI as it sought to formalize the sovereignty of IIOJK as asserted in clause 8 of the IoA. By virtue of this sovereignty, IIOJK had its own Constitution, which was framed in 1956, while no other Indian State had its own Constitution ever.


The 1949’s Article 370 of the Constitution of India (COI) recognized the principle of special status or internal sovereignty of the IIOJK by incorporating by reference the so-called Instrument of Accession (IoA) dated October 26, 19471 executed by the Maharaja at that time. The clause 8 of the IoA clearly mentions that, "Nothing in this Instrument affects the continuance of my Sovereignty in and over this State or, save as provided by or under this Instrument, the existence of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State”. Article 370 was included in the COI as it sought to formalize the sovereignty of IIOJK as asserted in clause 8 of the IoA. By virtue of this sovereignty, IIOJK had its own Constitution, which was framed in 1956, while no other Indian State had its own Constitution ever. The internal sovereignty and permanent status of Article 370 as not subject to repeal was recognized by the SCI itself in such decisions as Prem Nath Kaul vs. State of Jammu & Kashmir2 and State Bank of India vs. Santosh Gupta3. The bench validating Indian government’s action of August 2019 was not constitutionally competent to reconsider and review the earlier decisions accepting internal sovereignty of IIOJK as permanent and not subject to repeal the status of Article 370. To overturn the earlier decision, the constitution of a larger bench was required. Failing to do so rendered the decision of December 11 per incuriam, meaning it was not valid in law.
Article 3 of the COI4 guarantees the status and territorial integrity of each State of the Union of India. No change in the status, territorial area, or name of any State may be effected without prior consultation with the legislature of the concerned State. India, however, promulgated the Jammu and Kashmir Reorganization Act 2019 on August 5, 2019, without prior consultation with IIOJK’s legislative assembly, clearly violating the mandatory provisions of Article 3 of the COI. By virtue of the said Act, the IIOJK was bifurcated in two parts called Jammu and Kashmir and Ladakh, its State status revoked and both parts annexed as Union Territories to India. This clear and unconstitutional step, however, was blatantly condoned by the SCI when it very surprisingly refused to rule upon the vires of the Jammu and Kashmir Reorganization Act 2019. This refusal to exercise a jurisdiction constitutionally vested in the apex court of the country in relation to a vital issue directly arising in the case is highly egregious and clearly establishes malice and bias in the members of the bench, thus further undermining the validity of the decision.


Since the SCI refused to decide the vires of the Jammu and Kashmir Reorganization Act 2019 on the verbal assurance of the Solicitor General of India that the State status of IIOJK shall be restored "in due time"–a clear admission that the Reorganization Act was in stark violation of Article 3 of the COI–it is therefore not clear when the elections in the IIOJK shall be possible.


IIOJK was placed under Governor's rule in June 2018 and thereafter without restoring the democratic government, Presidential rule was imposed in December 2018, which continued until August 5, 2019. Since the SCI refused to decide the vires of the Jammu and Kashmir Reorganization Act 2019 on the verbal assurance of the Solicitor General of India that the State status of IIOJK shall be restored "in due time"–a clear admission that the Reorganization Act was in stark violation of Article 3 of the COI–it is therefore not clear when the elections in the IIOJK shall be possible. IIOJK still stands divided as two Union Territories of Jammu and Kashmir and Ladakh as the Jammu and Kashmir Reorganization Act 2019 is still in force. Since the SCI did not fix any firm date for the restoration of State status of the current Union Territories, technically speaking, the repeal of the Jammu and Kashmir Reorganization Act 2019 can be delayed for indefinite time on one pretext or another. Likewise, elections may be delayed indefinitely in a similar manner. In the meantime, in the absence of a representative and democratic government and a free press and media, human rights violations in IIOJK will continue with impunity.
Commenting on the decision of SCI, a conservative newspaper, The Hindu, observed,5 "The Supreme Court of India’s verdict upholding the abrogation of Jammu and Kashmir’s special status under Article 370 of the Constitution represents not merely judicial deference, but a retreat from the Court’s known positions on federalism, democratic norms, and the sanctity of legal processes. It is undoubtedly a political boost to the ruling BJP and an endorsement of its audacious move in August 2019 to strip Kashmir of its special status and bring it at par with the other States. However, it is also a verdict that legitimizes the subversion of federal principles, fails to appreciate historical context and undermines constitutional procedure. The most potent attack on federal principles is the Court’s unconscionable conclusion that Parliament, while a State is under President’s Rule, can do any act, legislative or otherwise, and even one with irreversible consequences, on behalf of the State legislature. This alarming interpretation comes close to undermining a basic feature of the Constitution as enunciated by the Court itself and may have grave implications for the rights of States". 


Pakistan has rightly rejected the decision as irrelevant, as the issue of Kashmir is not a local or national matter of India but an international one. This implies that national legislation or judicial decisions by Indian courts cannot dispose of the rights of the people of IIOJK, which are admittedly of an international nature.


Pakistan has rightly rejected the decision as irrelevant, as the issue of Kashmir is not a local or national matter of India but an international one. This implies that national legislation or judicial decisions by Indian courts cannot dispose of the rights of the people of IIOJK, which are admittedly of an international nature. These rights can only be addressed under international law or the resolutions of the UNSC, which were passed with the agreement and consent of Pakistan and India. Therefore, they have a binding character in addition to the backing of the UNSC. In this view, the legal implications and relevance of the SCI decision regarding its effect on the disputed status of IIOJK are negligible. This is because the nature of the dispute is international, and as such, international law is applicable to the resolution of the conflict. Since the SCI's decision aligns with Indian law and the Constitution and not with reference to international law, the significance and impact of the SCI decision amount to naught.
Right of self-determination of the IIOJK people is recognized by Article 1 (2) of the United Nations Charter,6 which states that the purposes for the establishment of the United Nations Organization (UNO) inter alia is to “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. The sanctity of the right to self-determination extends to the right of armed resistance against the power violating the right of self-determination; such right of armed resistance is recognized by such United Nations General Assembly (UNGA) resolutions as 2649/1970, 3171/1973, 3314/ 1974 (Article 7) and 37/46 of 1982.
UNSC passed several resolutions7 recognizing the right of self-determination of IIOJK people after the issue was referred to it in 1948. Starting with resolution no. S/RES/38 of January 17, 1948, several other resolutions were passed by the UNSC. Resolution no. S/RES/39 of January 20, 1948 set up the UN Commission for India and Pakistan (UNCIP) to investigate the dispute between the two countries over Kashmir and exercise mediatory influence. Resolution no. S/RES/47 of April 21, 1948 enlarged the membership of UNCIP and recommended measures that would bring about a cessation of the fighting and create the proper conditions for a free and impartial plebiscite to decide whether the State of Jammu and Kashmir would accede to India or Pakistan. Resolution no. S/RES/96 of November 10, 1951 is important insofar as it recognized both India and Pakistan for their declaration of working for a peaceful settlement of Kashmir dispute, continuation to observe a ceasefire, and their acceptance of the principle that the accession of the State of Jammu and Kashmir should be determined by a free and impartial plebiscite under the UN auspices (i.e., the right of self-determination).


Right of self-determination of the IIOJK people is recognized by Article 1 (2) of the United Nations Charter,  which states that the purposes for the establishment of the United Nations Organization (UNO) inter alia is to “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”.


Resolution no. S/RES/122 of February 21, 1957 is very important as it states, “(UNSC) declares that the convening of a Constituent Assembly (in the IIOJK)… and any action that the assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire State or any part thereof, or action by the parties concerned in support of any such action by the assembly, would not constitute a disposition of the State in accordance with the above principle (i.e., the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite under the auspices of the United Nations)”. The decision of the SCI, therefore, cannot “constitute a disposition of the” IIOJK in view of the UNSC resolution no. S/RES/122 of February 21, 1957. In fact, India cannot in presence of resolution no. S/RES/122 of February 21, 1957 unilaterally dispose of any part of the state of Jammu and Kashmir under its illegal occupation by any legislative, judicial, or administrative action.
The SCI’s decision definitely fails to achieve its purposes and merely serves to vindicate the chauvinistic agenda of the ruling BJP, whose avowed aim has been to restore Ram Raj in India. The BJP has long worked towards the revocation of Article 370 of the COI, and it is not surprising that, with the aid of a conniving judiciary, it has ultimately achieved its long-championed objective. However, the fight in IIOJK for self-determination will continue, as the people of IIOJK have made significant sacrifices in pursuit of self-determination and a dignified life.

The writer has served as the Caretaker Federal Law Minister of Pakistan.
E-mail: [email protected]

1.   “The Backstory of Article 370: A True Copy of J&K’s Instrument of Accession.” n.d. The Wire. https://thewire.in/history/public-first-time-jammu-kashmirs-instrument-accession-india.
2.   AIR 1959 SC 749
3.   AIR 2017 SC 25
4.   Article 3 reads “Parliament may by law—(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
      (b) increase the area of any State;
      (c) diminish the area of any State;
      (d) alter the boundaries of any State;
      (e) alter the name of any State:
      Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.
5.   The Hindu. 2023. “Ominously Anti-Federal: On the Supreme Court’s Judgment on Article 370 and J&K’s Special Status,” December 11, 2023, sec. Editorial. https://www.thehindu.com/opinion/editorial/ominously-anti-federal-on-the-supreme-courts-judgement-on-article-370-and-jks-special-status/article67628150.ece.  
6.   United Nations. 1945. “UN Charter.” United Nations. 1945. https://www.un.org/en/about-us/un-charter.  
7.   “UN Documents for Jammu and Kashmir: Security Council Resolutions.” 2010. Securitycouncilreport.org. 2010. https://www.securitycouncilreport.org/un_documents_type/security-council-resolutions/?ctype=Jammu%20and%20Kashmir&cbtype=jammu-and-kashmir.

 



 

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