‘Team has studied all historical documents: relation of J&K with India rests on Article 35A’
Srinagar: Asserting that the petition seeking scrapping of Article 35A was a “serious issue”, Kashmir Bar Association President Mian Abdul Qayoom told Kashmir Reader that the lawyers’ body was “on standby mode, waiting for the right moment” to appeal in the Supreme Court.
“Since the day the Supreme Court accepted the petition, a team of the Bar has been present in all the court proceedings so far,” Qayoom said.
He said that Article 35A cannot be changed as it will have “serious impact” on the demography of J&K.
The Bar president informed that the lawyers’ body had formed a team which has studied the issue “minutely”.
“If need be,” he told Kashmir Reader on Sunday, “Bar will present its own stand on Article 35A. But we are waiting for the right moment.”
“We have prepared the application to move before the SC to become a party in the case, besides the governments of J&K and India,” he said.
He said that the Bar team has held 15 sittings on the “sensitive” matter.
“We have prepared a reply as to why the petition should be dismissed,” he said. “We are waiting till the SC starts hearing it. If the top court dismisses the petition, then we will not enter our application.”
When asked about the arguments that the J&K government has filed in the case, Qayoom said, “The preliminary statement filed by the (J&K) government counsel is simple: the issue raised is not maintainable as a Constitutional Bench of the SC has already decided the case in the past, and that, too, twice.”
Article 35A has been challenged twice in the SC earlier. In cases titled Puranlal Lakhanlal v/s President in 1962 and Sampat Prakash v/s State of Jammu and Kashmir and others in 1969, separate Constitution benches dismissed the cases each time.
Sharing details of the arguments prepared by the Bar, senior Bar member Advocate Arshid Andrabi told Kashmir Reader that the Bar team has studied all documents related to “independent J&K” since the time of the Treaty of Amritsar (ToA), signed in 1846.
“We have studied all the documents up to 1954,” he said. “When the ToA was signed, J&K became a full-fledged sovereign state. It was not part of British India since then.”
In the course of history, Andrabi said, “Under the constitution of 1939, the then British government in India envisaged a federal structure for Indian states. The princely states, which were not part of the British empire then, were invited to join the British federation.”
But, Andrabi informed, “the (British) federation was never formed.” “Thus,” he said, “Kashmir never acceded to British India.”
Andrabi further said that in 1947, Maharaja Hari Singh, then ruler of independent J&K, entered into a “standstill agreement” with Pakistan. “India refused to enter such an agreement,” he said.
The then Governor General of India, Lord Mountbatten, had given the choice to J&K either to join India or Pakistan or enter into a standstill agreement with any of the two. “However, it was subject to holding a referendum in J&K,” Andrabi said.
He said that the then state assembly under the Maharaja had a majority of members from the Muslim Conference, who on July 19, 1947, passed a resolution that “whenever the state of Pakistan is born, Kashmir will join it.”
“The resolution passed by the assembly made the Maharaja enter into a standstill agreement with Pakistan,” Andrabi said.
Andrabi said that the Bar’s research on the subject had yielded a strong case, as according to the claim made by the Union of India, “Instrument of Accession (IoA) was signed on October 26, 1947 only on three subjects: defence, communication and foreign affairs.”
Andrabi said that British author Alastair Lamb has even questioned this claim, asking, “How come the IoA was signed on 26th October when the Maharaja was fleeing Kashmir by road towards Jammu and his Prime Minister was in Delhi?”
Andrabi said that Mountbatten, however, accepted the IoA but on the condition that a referendum be held in J&K. “Next day, Indian army landed in Kashmir and on 1st January 1948, India took Kashmir (case) to United Nations (UN), where Pakistan lodged a counter complaint.”
“Five days later, a resolution was passed in United Nations Security Council (UNSC) in favour of referendum in J&K. Later, 28 such resolutions were passed and subsequently a plebiscite commissioner was appointed. The UN sent two missions (UNMOGIP) to the divided Kashmir,” Andrabi said. “All these things show that Kashmir is an international dispute on the floor of the UN.”
Andrabi argued that the Indian government “accepted this position by incorporating Article 370 and Article 35A in the Indian Constitution, till a referendum was held.”
“This is the legal position that we want SC to hear but we are waiting,” he said. “If these articles (370 and 35A) are scrapped, then the relation between J&K and Union of India ends by itself,” he said.