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Kashmiris react to Article 370, high court’s ruling
Some parties welcome judgment, others call ruling incomplete and a supportive to Indian rule in state
LAHORE – Reacting to the Jammu Kashmir High Court’s ruling that the Indian-held state never merged with India, some Kashmiri political parties in both parts of the disputed state welcomed the judgment while some politicians called the high court’s ruling incomplete and not according to the historic resolutions passed by the UN Security Council.
In a 60-page judgment, the high court ruled that the Article 370 of the Indian constitution that deals with the status of Jammu Kashmir was beyond abrogation, repeal or even amendment. “Article 35A gives protection to existing laws. Article 370 though titled as ‘temporary provision’ and included in Para XXI titled ‘temporary, transitional and special provisions’ has assumed place of permanence in the constitution,” it said.
The political parties asked the government of Chief Minister Mufti Mohammad Sayeed to make Article 370 even stronger, but others called the judgment incomplete, saying the disputed state is not part of any neighbour state. Paying rich tribute to Justice Husnain Masoodi and Justice Raj Kotwal, Azad Jammu Kashmir President Sardar Muhammad Yaqoob Khan welcomed the court’s ruling.
“We welcome this decision (by the high court) as this proved India’s ‘integral part’ theory wrong,” Basharat Mahboob, press secretary to the president, quoted him as saying. “We believe that both the Kashmiri judges presented truth in their judgment,” he said. President Yaqoob urged the world community to press India to implement the UN resolutions on Jammu Kashmir. “India is violating international laws and is involved in massive human rights violation in the disputed state,” he said.
Talking to Daily Times, former Azad Jammu Kashmir prime minister Sardar Attique Ahmed pointed out that Article 370 reshaped a temporary relation between the disputed state and India into a relatively permanent connection. “We must know that there is no law-making institution or Constituent Assembly in the (Indian side of) state,” he said, adding that the other part of the state now has a Legislative Assembly.
“Any judgment against Article 370 can create further problems for India as there is no Constituent Assembly to give any constitutional support to Indian rule in the state,” said Attique – who heads the Muslim Conference party. Basically, the court has reaffirmed importance of the Article 370 and showed how abrogating it would weaken the legal basis for the disputed state to be part of India, as the ‘accession’ was linked to its getting special status, he said. “I personally appreciate the judges for doing their job according to the rules,” he said.
– Limited accession –
But Abdul Majid Malik – a retired judge who heads Jammu Kashmir Liberation League party – told Daily Times that a limited accession has been accepted through this ruling that states Article 370 is a permanent provision of the Indian constitution. The court’s ruling should be seen in a limited context in which it was made, he said, adding that the verdict has not broken any new ground as it was a reiteration of earlier Supreme Court of India’s rulings that Article 370 continues to be operative.
The court observed that the (Indian) president under Article 370(1) was conferred with power to extend any provision of the constitution to the (disputed) state with such exceptions and modifications as may be deemed fit subject to ‘consultation’ or ‘concurrence’ with the state government. “And such power would include one to amend or alter the provision to be applied, delete or omit part of it, or make additions to the provisions proposed to be applied to the state. Such power would extend even in case of provisions of the constitution already applied,” it said.
“Article 370 is a ‘permanent’ provision of Indian constitution even if its title shows it as a temporary provision as the Constituent Assembly – which was dissolved in January 1957 – did not recommend that the article would cease to be operative,” said Abdul Majid Malik – a retired judge. To a question, he said that it was Pakistan’s responsibility to contact the UN Security Council rather than the General Assembly to resolve the Kashmir issue.
Former Azad Jammu Kashmir minister Khawaja Farooq Ahmed also welcomed the ruling. “I have great regard for Justice Husnain Masoodi and Justice Raj Kotwal for a bold decision,” said Farooq – who is leader of the state chapter of the Pakistan Tehreek-e-Insaf party. “All regional powers must know that Kashmiri people will decide what they want according to the UN resolutions,” he said. The court said that the state retained a ‘limited’ sovereignty and did not merge with India like other princely states.
Article 370 of Indian Constitution
(1) Notwithstanding anything contained in this Constitution,—
(a) the provisions of Article 238 shall not apply now in relation to the state of Jammu and Kashmir
(b) the power of parliament to make laws for the said state shall be limited to—
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
(c) the provisions of article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
Kashmiris react to Article 370, high court’s ruling
Some parties welcome judgment, others call ruling incomplete and a supportive to Indian rule in state
- Muhsen Ali
- October 20, 2015, 2:02 pm
LAHORE – Reacting to the Jammu Kashmir High Court’s ruling that the Indian-held state never merged with India, some Kashmiri political parties in both parts of the disputed state welcomed the judgment while some politicians called the high court’s ruling incomplete and not according to the historic resolutions passed by the UN Security Council.
In a 60-page judgment, the high court ruled that the Article 370 of the Indian constitution that deals with the status of Jammu Kashmir was beyond abrogation, repeal or even amendment. “Article 35A gives protection to existing laws. Article 370 though titled as ‘temporary provision’ and included in Para XXI titled ‘temporary, transitional and special provisions’ has assumed place of permanence in the constitution,” it said.
The political parties asked the government of Chief Minister Mufti Mohammad Sayeed to make Article 370 even stronger, but others called the judgment incomplete, saying the disputed state is not part of any neighbour state. Paying rich tribute to Justice Husnain Masoodi and Justice Raj Kotwal, Azad Jammu Kashmir President Sardar Muhammad Yaqoob Khan welcomed the court’s ruling.
“We welcome this decision (by the high court) as this proved India’s ‘integral part’ theory wrong,” Basharat Mahboob, press secretary to the president, quoted him as saying. “We believe that both the Kashmiri judges presented truth in their judgment,” he said. President Yaqoob urged the world community to press India to implement the UN resolutions on Jammu Kashmir. “India is violating international laws and is involved in massive human rights violation in the disputed state,” he said.
Talking to Daily Times, former Azad Jammu Kashmir prime minister Sardar Attique Ahmed pointed out that Article 370 reshaped a temporary relation between the disputed state and India into a relatively permanent connection. “We must know that there is no law-making institution or Constituent Assembly in the (Indian side of) state,” he said, adding that the other part of the state now has a Legislative Assembly.
“Any judgment against Article 370 can create further problems for India as there is no Constituent Assembly to give any constitutional support to Indian rule in the state,” said Attique – who heads the Muslim Conference party. Basically, the court has reaffirmed importance of the Article 370 and showed how abrogating it would weaken the legal basis for the disputed state to be part of India, as the ‘accession’ was linked to its getting special status, he said. “I personally appreciate the judges for doing their job according to the rules,” he said.
– Limited accession –
But Abdul Majid Malik – a retired judge who heads Jammu Kashmir Liberation League party – told Daily Times that a limited accession has been accepted through this ruling that states Article 370 is a permanent provision of the Indian constitution. The court’s ruling should be seen in a limited context in which it was made, he said, adding that the verdict has not broken any new ground as it was a reiteration of earlier Supreme Court of India’s rulings that Article 370 continues to be operative.
The court observed that the (Indian) president under Article 370(1) was conferred with power to extend any provision of the constitution to the (disputed) state with such exceptions and modifications as may be deemed fit subject to ‘consultation’ or ‘concurrence’ with the state government. “And such power would include one to amend or alter the provision to be applied, delete or omit part of it, or make additions to the provisions proposed to be applied to the state. Such power would extend even in case of provisions of the constitution already applied,” it said.
“Article 370 is a ‘permanent’ provision of Indian constitution even if its title shows it as a temporary provision as the Constituent Assembly – which was dissolved in January 1957 – did not recommend that the article would cease to be operative,” said Abdul Majid Malik – a retired judge. To a question, he said that it was Pakistan’s responsibility to contact the UN Security Council rather than the General Assembly to resolve the Kashmir issue.
Former Azad Jammu Kashmir minister Khawaja Farooq Ahmed also welcomed the ruling. “I have great regard for Justice Husnain Masoodi and Justice Raj Kotwal for a bold decision,” said Farooq – who is leader of the state chapter of the Pakistan Tehreek-e-Insaf party. “All regional powers must know that Kashmiri people will decide what they want according to the UN resolutions,” he said. The court said that the state retained a ‘limited’ sovereignty and did not merge with India like other princely states.
Article 370 of Indian Constitution
(1) Notwithstanding anything contained in this Constitution,—
(a) the provisions of Article 238 shall not apply now in relation to the state of Jammu and Kashmir
(b) the power of parliament to make laws for the said state shall be limited to—
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
(c) the provisions of article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
Kashmiris react to Article 370, high court’s ruling
