Abstract
This book is a bold attempt by an eminent Supreme Court lawyer, Anand Hingorani, to find a solution to the Kashmir imbroglio on the basis of domestic and international law. ‘It is imperative’, says Hingorani, ‘to first depoliticise the Kashmir and the appropriate way to depoliticise any issue is to subject it to a legal analysis.’
The first half of the book is devoted to a recital of the historical and political background of the case. Basing himself on these facts (and his interpretation of the facts), the author proceeds to offer detailed recommendations for resolving the Kashmir problem.
In Hingorani’s opinion, the Princely Indian States became sovereign entities with the lapse of British paramountcy on 15 August 1947. As sovereign states, it was open to them to accede to either India or Pakistan or to remain independent. Since sovereignty vested in the princely ruler, the question of a provisional acceptance of an instrument of accession did not arise. Thus, the Government of India had no authority to make its acceptance of the ‘Raja’s’ accession conditional to a future reference to the will of the people. (The author refers to the Maharaja of Jammu and Kashmir as the ‘Raja’ of the ‘PIS of J&K’ throughout the book.) Attaching this provision to the acceptance of the state’s accession was not only a political but also a legal blunder. In the author’s words,
‘the wishes of the people’ were alien to the question of accession of a princely Indian state to either of the dominions of India or Pakistan under the Indian Independence Act of 1947, and the Government of India Act of 1935, as amended…New Delhi was not legally competent to require that this accession be further ‘settled’ by a ‘reference to the people’ of the PIS of J&K. Nor could it regard the accession as being ‘provisional’. The accession…was unconditional, final, irrevocable and complete in view of the provisions of the said British statutes.
Hingorani goes on to argue that a solution based on the conversion of the Line of Control (LOC) to an international border would violate constitutional provisions. Moreover, in his view, ‘New Delhi’s policy since 1948 of territorial status quo in its constituent state of PIS of J&K is legally misconceived as well.’ In his opinion, ‘the Indian parliament lacks the power to cede national territory’. He concedes that it is a ‘well-settled principle of international law that the right to cede territory flows from the sovereign character of a state’ but he argues that ‘there is nothing to prevent a sovereign state from imposing upon itself a limitation on the power of ceding territory’. His seems to interpret the reference to the ‘unity and integrity of the Nation’ in the Preamble to the Indian Constitution as amounting to such a self-imposed limitation of the powers of Parliament to cede territory.
He also points to the absence of any specific provision in the Constitution permitting Parliament to cede national territory. Without going into the legal merits or demerits of this somewhat strained argument, we may note that Seervai, the eminent constitutional authority, among others, takes a very different view, maintaining that its residual legislative powers give Parliament the competence to cede territory.
Hingorani rejects any approach based on maintaining the territorial status quo in Jammu and Kashmir, pending a peaceful solution. Thus, he deplores the Tashkent Declaration, which called for observance of the ‘cease-fire terms on the cease-fire line’. His condemnation of the Simla Agreement is even stronger. In his words, at Simla, India ‘expressly restricted itself from unilaterally altering the status quo and reiterated the inviolability of the LOC’ [emphasis in original]. Hingorani is opposed to the underlying notion of gradually converting the LOC in Jammu and Kashmir to the international border.
So what is the way forward? Hingorani believes that the key to a solution lies in a reference to the International Court of Justice (ICJ). He lists a set of eight propositions on which India should seek a ruling by the ICJ. Among these propositions are the following:
‘3. That “the wishes of the people” of a princely Indian state were alien to the question of accession of such princely Indian state to either of the dominions of India or Pakistan.’
‘5. That the Government of India was not competent to propound or accept, whether in the UN or outside, that the accession of the PIS of J&K to the dominion of India by its sovereign ruler be further determined by a plebiscite or referendum.’
‘6. That the UN, and every state, including Pakistan, “contracting” with India are held to have had the knowledge that representatives of the dominion of India exceeded their powers…by wishing or pledging to hold a plebiscite.’
‘8. That Pakistan and China have no legal right to be in the possession and control of the territory of the PIS of J&K presently occupied by them, and nor was Pakistan competent to negotiate and give away a part of such territory, being Indian territory, to China.’
Should the ICJ confirm the eight propositions, the Pakistani and Chinese presence in Jammu and Kashmir would be deemed to constitute ‘aggression’ and the international community ‘would have no option but to put an end to that illegal situation’. Hingorani launches into an examination of the legal issues and is most sanguine about a favourable ICJ ruling, in which case the ICJ is ‘bound to require Pakistan and China to withdraw from the territories of the PIS of J&K occupied by them’. ‘This’, he observes, ‘is, perhaps, the only means to compel Pakistan, and China, to restore the territories of the PIS of J&K to India’.
We may leave it to legal experts to debate the strengths and weaknesses of Hingorani’s case but we cannot fail to be awed by the author’s unquestioning faith in the supreme efficacy of international law as an instrument in international relations. Can the international and domestic dimensions of the Kashmir problem be so easily ‘depoliticized’ by a reference to the ICJ? What would be the public reaction in Kashmir if the Government of India were to suddenly assert that the wishes of the people had no bearing on the state’s status as an integral part of India, reversing its hitherto consistent position that the Maharaja’s accession was subsequently confirmed by the elected representatives of the people of Jammu and Kashmir? Can we really expect Pakistan and China to withdraw without demur from the territories they currently occupy in Jammu and Kashmir if the ICJ confirms Hingorani’s eight propositions? Few will agree that legal considerations prevail over power realities in relations between nations. When he finished reading the book, this reviewer was left with the feeling that he had accompanied a well-intentioned and learned jurist on a fascinating journey through a legal wonderland.