Article 370 and the Intention of the Framers of the Indian Constitution

My earlier post analyzed the “mechanics” of Article 370 by deconstructing its text syntactically and semantically.

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 9^th 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 15^th August 1947, the Constituent Assembly (of India) was expanded to include nominees from the princely states.

On 26^th November 1949, the Constituent Assembly of India adopted the draft Constitution, which took effect on 26^th 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 17^th 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.