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UNDERSTANDING LEGAL ASPECTS OF THE KASHMIR DISPUTE

UNDERSTANDING LEGAL ASPECTS OF THE KASHMIR DISPUTE

UNDERSTANDING LEGAL ASPECTS OF THE KASHMIR DISPUTE

Kamran Adil

“To see an opportunity, we must be open to all thoughts.” — Catherine Pulsifer

Introduction

Hitherto, Kashmir was discoursed mostly in political, militaristic and strategic terms; the latest, legal engineering by India has, however, carved out an opportunity for the policymakers in Pakistan to, inter alia, understand and explore legal avenues related to this long-standing dispute in the context of conflict-resolution and conflict-management. The instant article is, therefore, an attempt to examine the legal aspects of the Kashmir Dispute; the examination so carried out will help broaden the understanding, which can, contribute to a more nuanced analysis of the facts thrown by the new situation. The carte du jour of the legal aspects is worth poring and is enumerated hereunder:

  1. Legal Engineering by India

India has long taken pride in its constitutionalism, which has been subjected to legal engineering by its ruling party, i.e. BJP. By tolerating two Presidential Orders and by passing one Act of the Parliament, the Indian Parliament witnessed legal engineering sans legality and legitimacy. The two Presidential Orders, which were apparently issued under clauses (1) and (3) of Article 370 of the Indian Constitution, did not fulfil the legal requirement(s); the Presidential Orders were illegal and illegitimate as they were in breach of the so-called Instrument of Accession that the very Indian Constitution had endorsed by acknowledging in its black letter and in form as the Constituent Assembly that was to provide concurrence for such order was not in existence. The two Presidential Orders, which were primarily of executive nature, were used to ‘cease’ the operation of constitutional provisions; the architecture of upending the constitutional legislation through executive orders without fulfilling the preconditions for using such power is blatantly unconstitutional. The edifice of the legal engineering was then garnished by the Jammu and Kashmir Reorganization Act, 2019, that, in suppression to all the legal obligations under the so-called Instrument of Accession and contrary to constitutional safeguards inbuilt in the Constitution of India, provided for division of the disputed territory of Indian-Occupied Kashmir (IOK) into two union territories to be controlled by the Central Government. As a consequence of the legal tinkering, Article 35-A, that was a constitutional guarantee for preserving the demography of the IOK was stated to have come to cease. This legalese punctuated by political considerations and backed by imposition of curfew and severing of communications in the IOK has provided the opacity to the issue. Popularly, the media reported legal engineering as ‘revocation’, whereas, legally it was ‘cessation of operation’ of the constitutional provisions; it was wrongly projected as ‘revocation’ to evince the factum of legal fiddling as a ‘fait accompli’. Constitutionally, Article 370 is still part of the Indian Constitution as the two Presidential Orders are pegged into it; conversely, if it is insisted that the constitutional provision of Article 370 stands revoked, then, the Presidential Orders will become non est. as their foundation will be lost. The challenge to constitutionalism was not welcomed by the civil society of India, which challenged many an action by the government and the very constitutionality of the acts has been challenged in the Supreme Court of India on the basis of its inconsistency with the constitutional fundamental rights and on the touchstone of the basic structure doctrine enunciated by the Supreme Court of India in Kesavananda Bharti Case and on the basis of earlier judgements of the Supreme Court of India.

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