My
earlier post analyzed the “mechanics” of Article 370 by deconstructing its text
syntactically and semantically.
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My conclusion in that post was that the text of the Article is plain and
straightforward enough to permit its abrogation. Others, howeer, use abstruse, convoluted arguments to obfuscate the issue.
For instance, Sri. Mani Shankar Aiyar in his book, ‘Confessions of a Secular Fundamentalist’ cites four reasons that Sri. N. Gopalaswami Ayyangar, Member of the Drafting
Committee, had given during the Constituent Assembly debates to justify the existence of Article 370. Yet, he runs with the hares and hunts with the hounds by concluding speciously that the
Article is “primarily of symbolic rather than substantive value...”
While
it is difficult to fathom Sri. Aiyar and his ilk’s lopsided “symbolic, yet
special” characterization of Article 370, one cannot argue against the attempt
to peep into the minds of our Founding Fathers, the framers of the Constitution,
to understand the true legislative intent behind the provisions thereunder. Indeed, careful
scrutiny of the transcripts of the Constituent Assembly (of India) debates is an accepted, prudent practice for gleaning the true intention and purpose behind any
constitutional provision.
What
is a Constituent Assembly?
A
constituent assembly (also referred to as a constitutional convention or assembly)
is a form of representative democracy. It is a body or assembly of
representatives composed for the specific purpose of drafting and/or adopting a constitution. The assembly is dissolved after a relatively short time once it
has drafted/adopted the constitution.
In this context, it
has to be borne in mind that constitutional law is created in many ways. At
times, a sovereign law-giver, say, a monarch, lays down the constitution for
all his subjects and later generations. Other times, a constituent assembly is
elected democratically through universal suffrage for the sole task of penning
a new constitution. There are, of course, all sorts of intermediate arrangements
between those two democratic and non-democratic extremes of the spectrum.
The Constituent
Assembly of India
The
Constituent Assembly was set up while India was still under British Rule.
Provincial Assembly elections were conducted early in 1946. In turn, the
Provincial Assemblies elected representatives to the Constituent Assembly.
Thus, the Constituent Assembly, an indirectly elected body, was comprised of
representatives from the Indian National Congress, Muslim League, Communist
Party of India, the Unionist Party, Scheduled Caste Federation, etc. The first
session of the Constituent Assembly was held on 9th December 1946.
After
all parties concerned accepted and agreed to the “Two-Nation Theory” for the partition of erstwhile
India, the delegates from the provinces in modern day Pakistan and Bangladesh
withdrew to form the Constituent Assembly of Pakistan. Subsequent to the transfer of
sovereignty and the creation of Dominion of India on 15th August 1947, the Constituent Assembly (of India)
was expanded to include nominees from the princely states.
On
26th November 1949, the Constituent Assembly of India adopted the
draft Constitution, which took effect on 26th January 1950.
Thereafter, the Constituent Assembly continued to function as the Provisional
Parliament of India till the first general elections took place in 1952.
Article
306A of the Draft Constitution
Article
370 was denoted as 306A in the Draft Constitution of India. It was inserted as
a new article after Article 306, with reference to Amendment No. 379 of List XV
(Second Week), as follows:
Much
of the text of the draft Article 306A is the same as that of Article 370. It
confirms the territorial integration of the State of Jammu and Kashmir with the
Dominion of India. It has a few contextual differences though vis-à-vis Article
370, which are highlighted below.
Firstly,
sub-clause (a) of Clause (1) refers to Article 211A of the Draft Constitution,
which corresponds to Article 238 of the Constitution of India.
Secondly,
the “Government of the State” in the draft refers to the “Maharaja of Jammu and
Kashmir, acting on the advice of the Council of Ministers....under the
Maharaja’s Proclamation,
dated the fifth day of March, 1948...” This was eventually amended to “Governor
of the State”. Further, by virtue of that Proclamation, a “popular Interim
Government...pending the formation of a fully democratic Constitution” had
become operational in Jammu and Kashmir.
The
Maharaja’s Proclamation further empowered the Council of Ministers of that
“popular Interim Government” to take appropriate steps, on restoration of
normal conditions, for convening “a National Assembly based upon adult
suffrage...” in, and for “the work of framing the new constitution...” of the
State of Jammu and Kashmir. Thus, it was on the advice of that “popular Interim
Government” and in accordance with the “Instrument of Accession” that the
Maharaja of Jammu and Kashmir had consented to the insertion of Article 306A
into the Draft Constitution.
Finally,
Article 306A stipulates that, if the applicability of any provision(s) of
the Constitution of India to the State of Jammu and Kashmir were to be notified by such suitable Order
of the President prior to the convening of the Constituent
Assembly of Jammu & Kashmir, after properly obtaining the concurrence of the
Maharaja (i.e., either under the Instrument of Accession on consultation with or otherwise
on the recommendation of the Maharaja), then such provision(s) were later required
to be duly “placed before such Assembly for such decision as it may take
thereon.”
It
is noteworthy that this final condition in Article 306A was complied with
after the formation of the Constituent Assembly of Jammu & Kashmir, which unanimously ratified the Maharaja's Instrument of Accession to India and adopted a constitution that recognised a perpetual merger of Jammu and Kashmir with the Union of India.
The
Constituent Assembly Debate on Article 306A
It
is well-documented history that Sri. N. Gopalaswami Ayyangar drafted the
Article 306A at the behest of Sri. Jawaharlal Nehru and defended it in the Constituent
Assembly. It was then tabled on the floor of the Assembly for discussions on 17th
October 1949.
Sri.
Ayyangar justified the introduction of Article 306A on account of the “special”,
“unusual” and “abnormal” conditions prevailing in the State of Jammu and
Kashmir at that time. He asserted that conditions were “...not yet ripe
for...integration (of Jammu and Kashmir with the Union)”, because of the “war
going on within the limits of Jammu and Kashmir State” and the fact that part
of the state was still “in the hands of rebels and enemies”. Yet, another
reason cited was the fact that India was “entangled with the United Nations in
regard to Jammu and Kashmir”. This was a reference to the UN Security Council
resolution calling for a plebiscite in Kashmir. He also affirmed that it was not
possible to say when India would be free from that entanglement.
While
the foregoing were the reasons, several other averments of Sri Ayyangar, during
the course of his address, shed light on the intentions, assumptions and
pursued goals of the Drafting Committee that led to the incorporation of Article
306A in the Constitution. I detail hereunder some of Sri. Ayyangar's most important
and relevant statements on Article 306A.
Accession
and Integration of Jammu and Kashmir
For
starters, he proclaimed, “The Jammu & Kashmir State, therefore, has to
become a unit of the new Republic of India...accession to the Dominion (of
India) always took place by means of an instrument...this has taken place in
this case.” The declaration, whichever way you slice and dice the
interpretation of the text, or its phraseology, leaves no ambiguity or
uncertainty on Jammu and Kashmir’s accession to India. The issue at stake, in the conception of Article 306A, was about the State becoming a "federal unit" of India,
and not its accession per se. Sri. Ayyangar's remarks disprove the contention, in some quarters, that the
accession of Jammu and Kashmir is contingent upon Article 370 in the
Constitution. They also dispel the fallacious argument that Article 370 is the link that integrates Jammu and Kashmir with the rest of the country.
Sri.
Ayyangar further observed, “Instruments of Accession will be a thing of the
past in the new Constitution...,” thus implying that once the Constitution of
India was adopted, the Instrument itself would become redundant. Thus, the accession itself is irrevocable.
“It
is the hope of everybody here,” he continued, “that in due course even Jammu
and Kashmir will become ripe for the same sort of integration as has taken
place in the case of other States...” The clear implication of “same sort of
integration as....in the case of other states” is that the goal was to
integrate Jammu and Kashmir in the same manner as the rest of the rest of the nation.
Commitment
of Plebiscite
He
further confirmed, “Commitment given to people of Kashmir to decide...whether
they will remain with the Republic or wish to go out of it...by means of a
plebiscite provided that peaceful and normal conditions are restored...” It is anybody’s guess as to whether the phrase “...or wish to go out of it...”
implied going with Pakistan or becoming independent.
Nonetheless,
there is hardly any doubt about such a plebiscite being contingent upon the
restoration of “normal conditions”, i.e., external forces withdrawing from
Kashmir and restoring sovereignty over all of Jammu and Kashmir to the Maharaja.
Article
306A: Special, Temporary or Permanent?
Moving
on, Sri. Ayyangar clarified, “Till a constituent assembly (of Jammu and Kashmir) comes into being, only
an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangement that exists in the
case of the other States...it is an inevitable conclusion that, at the present
moment, we could establish only an interim system. Article 306A is an attempt
to establish such a system.”
This
categorically implies that Article 306A/370 was intended to be a temporary
measure. No two thoughts about it!!
Besides,
that interim arrangement (of Article 306A/370) was meant to be in place only till
the Constituent Assembly (of Jammu and Kashmir) came into being. Hence, it is
evident from Sri. Ayyangar’s words that our Founding Fathers had indeed envisaged
abrogation of Article 306A/370 in the due course of time.
Later
in his speech, Sri. Ayyangar confirmed, “...it is one of our commitments to the
people and Government of Kashmir that no such additions should be made except
with the consent of the Constituent Assembly which may be called in the State
for the purpose of framing its Constitution...” Thus, in the case of Jammu and
Kashmir, the Drafting Committee deviated from a tiered, federal structure
inherent in the Indian Constitution, which, some have opined, provides for a
“unitary State with subsidiary federal features”. The departure mirrors, to
some extent, the “dual federalism” of the United States - a schema distinctly
different from that of the Indian Constitution.
In
short, Article 370 ushers in asymmetry in the federal structure of India. It is
an aberration to the fundamental principle of “paramountcy of national interest
despite federalism” enshrined in our Constitution.
Abrogation of Article 370
Finally,
Sri. Ayyangar declared in his speech, “The effect of this article is that the Jammu
and Kashmir State which is now a part of India will continue to be a part of
India, will be a unit of the future Federal Republic of India and the Union
Legislature will get jurisdiction to enact laws on matters specified... it (i.e.,
Constituent Assembly of Jammu & Kashmir) will make a recommendation to the
President who will either abrogate article 306A or direct that it shall apply
with such modifications and exceptions as the Constituent Assembly may
recommend.”
These remarks
pf Sri. Ayyangar make it amply clear, certain and unambiguous that the accession of Jammu and
Kashmir is final and complete. It also spells out that the Framers of the
Constitution envisaged either the abrogation of Article 370 or its modified
application. The latter was to be on the Constituent Assembly’s recommendation,
which, as we now know, never came to pass.
Hence, given our ex post facto knowledge that the Constituent Assembly of the State of Jammu and
Kashmir was convened and disbanded after accomplishing its purpose, i.e.,
the framing of Jammu and Kashmir’s Constitution, the only option left on the
table today is the abrogation of the Article.
The
Bottom-line
Article
370 was always meant to be a temporary provision. It has outlived its
usefulness. The Framers of the Constitution intended that it be abrogated (or
appropriately modified) eventually.
The
argument that abrogation of Article 370 would require reconvening of the
Constituent Assembly of Jammu and Kashmir is preposterous and mischievous. It is akin to
claiming that any repeal or amendment of an Article in the Indian Constitution
requires the re-institution of the Constituent Assembly of India. As has been
highlighted earlier in this article, all Constituent Assemblies are always dissolved
after adoption of the respective Constitutions, which then provide for
corresponding mechanisms for constitutional amendments.
Nevertheless,
with the Constituent Assembly of Jammu and Kashmir disbanded on completion of
its task of framing the J&K Constitution, what purpose is Article 370
serving? What is the need for, as Mani Aiyar puts it, the "symbolic presence" of
Article 370 in the Constitution?
On
the flip side, if indeed the Article was really meant to be a necessary provision, and
not temporary, why hasn't Parliament made it permanent?
Needless to say, any
objective evaluation of the Constituent Assembly debates proves that Article 306A was meant to be transient and that its abrogation does not present any problem whatsoever about Jammu and Kashmir's accession to or integration with India.
