Uedifying Legal revelations on Kashmir

A half century after the titles of the J&K Sadre Riyasat and Prime Minister were changed to Governor and Chief Minister,  J&K High Court in an order has termed the amendment that changed the nomenclature “against the basic structure of the (J&K) Constitution”. The order has played to a groundswell for the restoration of the state’s diluted autonomy among a large section of the Valley’s population.  And it has also further complicated the ongoing legal tug of war between the advocates of the revocation of Article 370 which grants J&K its autonomous status within Indian Union and the supporters in the state for undoing the extension of the federal laws from 1953-75 which eroded  Article 370, turning it into a “husk, with seed being taken away”.

“The elective status of Head of the State (Sadre Riyasat) was an important attribute of Constitutional autonomy enjoyed by the State, a part of “basic framework” of the State Constitution and therefore not within the amending power of the State Legislature,” a bench of Justice Hasnain Masoodi said while delivering a judgment in favour of a petition seeking hoisting of state flag on offices of constitutional authorities and their official vehicles. The court, however, has left the matter to State Legislature to take measures to uphold the J&K Constitution, stating that the Legislature is “under a constitutional obligation” to uphold the Constitution and rectify the error. “To perpetuate an error is no heroism and to rectify it is compulsion of conscience,” the court observed.

The court drew a parallel between Constitution of India and Constitution of J&K, stating that both  were framed through same process and have same origin. “What is true about Constitution of India as regards Basic Framework of the Constitution is true about the Constitution of Jammu and Kashmir,” the court observed.

Incidentally, the three interlocutors – Dilip Padgaonkar, Radha Kumar and  M M Ansari – appointed by the previous UPA Government had in their report recommended the revival of nomenclature of Sadr-e-riyasat and Wazir-e-Azam for the state.   The report had suggested that Centre must respect the terms under which Kashmir historically agreed to accede to India, including special treatment to its citizens. 

Earlier on October 9, a Division Bench of the High Court headed by Justice Hasnain Masoodi and Justice Janak Raj Kotwal had ruled that Article 370, granting special status to the state, has assumed place of permanence in the Constitution of India and the feature is “beyond amendment, repeal or abrogation”.

On the other hand, an RSS-linked Think Tank J&K Study Group has filed a petition in Supreme Court against Article 35A. The Article 35A was extended to the state through a 1954 Presidential Order which gives protection to the state subject laws in J&K whereby outsiders are not allowed to settle or acquire property in the state.  The Think Tank seeks the repeal of the “unconstitutional provision” since it was added by Presidential Order and not by approval of the parliament.

This recent legal wrangling has only added to the contentious political and ideological debate over the status of Kashmir within Indian Union. But as it is, while court rulings point out the illegal erosion of the J&K’s autonomy over time, exposing the fraudulent ways in which the constitutional safeguards have been done away with, they can do little to restore the status quo ante.  To undo historical wrongs or forge a new constitutional relationship between Srinagar and New Delhi is something that belongs in the domain of politics. One thing that the recent court judgements have proved beyond any doubt is the arbitrariness of the wrongs done to the state. The first step to right them is to acknowledge these have happened.

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