Post-Accession Constitutional Relationship of Jammu and Kashmir with the Union of India

My earlier post had traced the flow of sovereignty over the erstwhile princely state of Jammu and Kashmir. As I explained in that piece, Maharaja Hari Singh was the head of the sovereign State of Jammu and Kashmir under the paramountcy of the British crown at the

time of India’s independence. Enjoying plenary powers over the territories and subjects of the State, the Maharaja exercised that authority vested in him to sign the Instrument of Accession with India on October 26, 1947.

Terms of Accession

The accession was “unconditional, voluntary and absolute” as can be discerned from the operative part of the said Instrument, which reads: “I, Shriman... Maharajadhiraj Shri. Hari Singh..., Ruler of Jammu and Kashmir, in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession....” The said Instrument was of a permanent nature too since it stipulated no provisions or procedures for Jammu and Kashmir to either withdraw from or terminate its relationship with India.

Besides, in Clause 1 of the said Instrument, the Maharaja further covenanted that the accession was intended to confer on and concede to the Dominion the authority to exercise, in relation to the State of Jammu and Kashmir, such functions vested in the Dominion by or under the Government of India Act, 1935, as in force on the 15^th Day of August, 1947.

Clause 3 then goes on to state that the Dominion Legislature may make laws for the State of Jammu and Kashmir with respect to the matters “specified in the schedules”, i.e., defence, external affairs, communications and other ancillary matters.

Then again, in Clause 5 of the said Instrument, the Maharaja retained his right to accept (or, on the flip side, to reject) any variance to the terms of the said Instrument “by any amendment of the (Government of India) Act or of the Indian Independence Act, 1947...”

Clearly, any interpretation of the Instrument of Accession, and the powers retained by the Maharaja therein, needs to be made necessarily within the ambit of the List I (Federal Legislative List), List II (Provincial Legislative List) and List III (Concurrent Legislative List) of the Seventh Schedule of the Government of India Act, 1935. Interestingly, List I of that Act enumerates a total of 59 matters on which the 'federal government' was empowered to enact laws.

The Indian Independence Act, 1947 too vested the Dominion with certain additional functions, such as regulation of the monetary system and matters pertaining to the Reserve Bank of India.

No Special Provisions

It is noteworthy that the two enactments (that applied to the Instrument of Accession) neither envisaged a scenario of nor made express provisions for independence of any of the princely states under the British Raj. Furthermore, the Instrument made no reference, in express terms or by implication, of either a separate Constitution for the State of Jammu and Kashmir or a plebiscite in that State as a precondition for the accession.

Hence, those who claim that the Instrument of Accession conferred comprehensive autonomy on the State of Jammu and Kashmir for managing its internal affairs are either ill-informed or perhaps have hidden agendas in spreading falsehood.   

All the same, the historical account of accession of Jammu and Kashmir in “The Story of the Integration of the Indian States”, the memoirs of Sri. V.P. Menon (Secretary of Ministry of States in post-independence India under Sardar Vallabhbhai Patel), bespeaks little or no negotiation of terms during the hurried execution of the Instrument. Thus, the terms of the Instrument, that Maharaja Hari Singh agreed to and signed, show no variance with those that, say, the Maharaja of Mysore or the Maharaja of Travancore executed. In fact, a careful scrutiny shows that the Instrument of Accession was pretty much a "template version", with boilerplate terms, used for integrating all other States.

Yet, as documented by Sri. V.P. Menon in his book, Pandit Nehru had orally committed (hence morally-binding, if not legally-binding) the holding, subject to a conducive law and order situation, of a plebiscite for determining public sentiment towards accession in the State.

So much for all the false, fictitious talk of special provisions negotiated at the time of accession!

Post-Accession Discretionary Powers of the Maharaja

Nevertheless, Clause 7 of the Instrument of Accession executed by the Maharaja outlined:

“Nothing in this Instrument shall be deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangement with the Governments of India under any such future Constitution.”

Similarly, Clause 8 of the Instrument stipulated:

“Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or save as provided by or under this Instrument the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.”

The sum and substance of the above two Clauses of the Instrument is that the Maharaja:

1. Reserved for himself the discretion over the acceptance, and the conditions for such acceptance, of the Constitution of India being drafted at that time;
2. Ensured the continuance of his sovereignty in and over the State of Jammu and Kashmir, subject to the relinquishment of law-making powers to the Dominion Legislature of India (i.e., the Indian Parliament after the adoption of the Constitution of India), in various matters, as prescribed in the Schedule of the Instrument of Accession; and,
3. Retained all existing laws of the State of Jammu and Kashmir, except those laws applicable to areas specified in the Instrument.

In effect, the accession of the princely State of Jammu and Kashmir with the Indian Dominion was subject to no erosion or abrogation of either the authority or the autonomy of the Maharaja over the State’s “internal affairs and administration”. Nevertheless, these terms were analogous with those of accession of other princely states.

Fallout of the Instrument of Accession

The outcome of the British pullout from the sub-continent was that that the suzerainty of the British Crown had expired over the State of Jammu and Kashmir on August 15, 1947. And, with the signing of the Instrument of Accession, a new “international relationship” emerged between the erstwhile princely State of Jammu and Kashmir and the Indian Dominion.

In other words, not only did the Indian Dominion (the superior power) protect and support (as is typically expected of a “suzerain power”) the State of Jammu and Kashmir in its 1947 war against external aggressors, but it also concluded international treaties that were binding (in contrast to the scenario with a “protectorate”) on the State of Jammu and Kashmir too. Besides, neither did the Instrument of Accession make any provisions for withdrawal from or termination of the arrangement (as would, perhaps, have been the case in an “associate states” relationship).

Powers of Maharaja Hari Singh after Instrument of Accession

The execution of the Instrument of Accession would prima facie imply the transfer of sovereignty to the Dominion of India. However, in Prem Nath Kaul v. State of Jammu and Kashmir (AIR 1959 SC 749), the Supreme Court of India observed that the execution of the Instrument did not affect “in any manner the legislative, executive and judicial power in regard to the Government of the State, which then vested in the Ruler of the State.”

Again, in the case of Rehman Shagoo v. State of Jammu and Kashmir (AIR 1960 SC 1), a Five-Judge Constitution Bench of the Supreme Court confirmed that the State of Jammu and Kashmir did retain “power to legislate on even those subjects (over which law-making power had been conveyed to the Indian Dominion by virtue of the Instrument of Accession) so long as the State law was not repugnant to any law made by the Central Legislature.”

Thus, in the view of the judgments of the Supreme Court, Maharaja Hari Singh retained control over the State of Jammu and Kashmir even after accession. Hence, the Jammu and Kashmir Constitution Act, 1939 continued to be valid and subsisting. 

So too was the Proclamation of the Maharaja dated March 5, 1948.

Post-Accession Proclamations of Maharaja Hari Singh

The Proclamation dated March 5, 1948 was made in the lawful exercise of the powers vested and subsisting in the Maharaja after accession. It signified another step towards the establishment of a “fully democratic constitution based on adult franchise with a hereditary Ruler...as constitutional head of an Executive responsible to the legislature.”

The Proclamation was for the constitution of a Council of Ministers consisting of a Prime Minister. By Royal Warrant, the Maharaja appointed Sheikh Mohammad Abdullah as the Prime Minister. He also promised to set up a Constituent Assembly for the purpose of framing a Constitution for the State and its people.

The State though, continued to be governed under the Jammu and Kashmir Constitution Act, 1939.

Then again on June 20, 1949, Maharaja Hari Singh issued another Proclamation for abdicating power and nominating his son and heir-apparent, Yuvraj Karan Singh as the Ruler of the State. Thus, courtesy the abdication, all powers and functions of Maharaja Hari Singh, whether legislative, executive or judicial, including in particular the “right and prerogative of making laws, of issuing proclamations, orders and ordinance...,” passed on to the young prince, albeit temporarily.

As rightly held in the Prem Nath Kaul case (AIR 1959 SC 749), Maharaja Hari Singh, like his predecessors in the Dogra dynasty, was an absolute monarch and therefore there can be no question on either his power of delegation or the authority that Yuvraj Karan Singh derived from that Proclamation.  

Representation in the Constituent Assembly of India

Soon after assuming power from his father, the Yuvraj nominated four representatives‒ Sheikh Muhammad Abdullah; Motiram Baigra; Mirza Mohammad Afzal Beg; and Maulana Mohammad Sayeed Masoodi‒ to the 299-member Constituent Assembly of India.

So then, if at all accession had been in dispute or if independence had been an option on the table, why would Yuvraj Karan Singh, who enjoyed plenipotentiary powers as the Regent of the State of Jammu and Kashmir, designate a team to partake in the proceedings of the Indian Constituent Assembly?

Besides, during the Constituent Assembly of India debate on Article 370 (i.e., Article 306A in the draft Constitution), none of the four members ever mention that the State of Jammu and Kashmir was either contemplating independence or pursuing a plebiscite for independence. Indeed, all the four hon'ble representatives of the State of Jammu and Kashmir in the Constituent Assembly of India appended their respective signatures to the adopted Constitution on 24 January, 1950 (besides 280 other members).

Of course, this adoption shows that the Constitution of India is the Supreme Law of the State of Jammu and Kashmir, an integral part of India. Consequently, the people of the State owe allegiance to the Union of India and its Constitution, through which they reserved for themselves certain fundamental, non-violable rights.

Therefore, the question that begs to be asked is: Why do some opinion leaders still cast misgivings about the validity of the accession and integration of Jammu and Kashmir and the applicability of the Constitution of India to that State?

Nevertheless, Article 370 of the Constitution of India the came into effect on 26 January, 1950 did envisage the convening of a Constituent Assembly of Jammu and Kashmir for finalising the constitutional relationship between the State and the Union of India.

Constitution (Application to Jammu and Kashmir) Order of 1950

The President promulgated the Order of 1950 on 26 January, 1950 in exercise of powers conferred through paragraphs (i) and (ii) of by Article 370(1) (b). In essence, the Order codified the Instrument of Accession and added some other matters over which the Union Parliament could legislate. The Order specified in its First Schedule matters with respect to which the Union Parliament would be competent to make laws for the said State. Also, anything not contained in the First Schedule was within the exclusive powers of the State. In effect, this meant that the residuary power which in the case of other Indian States vested in the Center, in the case of Kashmir was to belong to the State.

The Second Schedule of the said Order tabulated the provisions of the Constitution, which in addition to Article 1 and Article 370, that were to apply in relation to Jammu and Kashmir, subject to the exceptions and modifications specified in the said Schedule.

The Order was later repealed by the Presidential Order of 1954 dated 14^th May 1954.

Proclamation of Yuvraj Karan Singh

It is noteworthy that many other princely states too had retained sovereignty even after British India had gained independent dominion status on 15 August, 1947. For instance, the princely State of Mysore had set up its Constituent Assembly for the purpose of framing a Constitution for the State. However, this Assembly passed a resolution recommending that Mysore should adopt the Constitution framed by the Constituent Assembly of the Indian Union. Hence, the erstwhile State of Mysore merged with the Republic of India as a Part-B State on 26 January, 1950.

The political leaders of Jammu and Kashmir, such as Sheikh Abdullah, driven perhaps by the motive of holding authoritarian power over the State under the garb of democracy, were not in favour of such seamless integration with the Union of India. Hence, they continued to drive the agenda of convoking a Constituent Assembly of Jammu and Kashmir to frame a Constitution for the State.

Eventually, the Yuvraj, as the Regent of the State, issued a Proclamation dated 1 May, 1951 that set in motion the process for convening a Constituent Assembly, elected on the basis of adult franchise by secret ballot, with the purpose of framing the Constitution of the State, in accordance with the provisions of Article 370. Accordingly, elections were completed by August of 1951 and the first meeting of the newly formed Constituent Assembly was held on 31 October, 1951.

The Delhi Agreement, 1952

The Constituent Assembly of Jammu and Kashmir deliberated on various aspects of the State’s constitutional relationship with India. It was deemed necessary to consult with and seek the concurrence of the Indian government on the decisions taken. So, a team of representatives of the Jammu and Kashmir government conferred with representatives of the Indian government and arrived at an arrangement, which was later referred to as the “Delhi Agreement, 1952”.

Accordingly, the Union Government consented to:

1. Residuary powers being vested in the State; 
2. The State Legislature conferring special rights and privileges on ‘state subjects’; 
3. The State of Jammu and Kashmir having a separate flag;
4. Chapter III of the Indian Constitution on Fundamental Rights being inapplicable to the State of Jammu and Kashmir; 
5. The Supreme Court of India having only appellate jurisdiction with reference to that State; 
6. Modifying Article 352 of the Constitution to enable the declaration of emergency only at the request or with the concurrence of the State government in the event of any internal disturbance in the State; and, 
7. The Head of the State, Sadr-i-Riyasat, being elected by the State Legislature (instead of being appointed by the President of India, as applicable to Governors of other states). 
8. Articles 356 and 360 of the Constitution of India being inapplicable to the State.

The important point to note here is that the Central Executive agreed to the above concessions. It is clear that the representatives of the Indian government were not empowered by the Indian Parliament to hold parleys with their Jammu and Kashmir counterparts. Hence, it is a safe conclusion that, at best, the Delhi Agreement was an informal, non-legal and non-binding understanding between the State of Jammu and Kashmir and the Union of India. Therefore, no concession extended to Jammu and Kashmir in this understanding casts a duty or obligation on the Union of India.

In fact, it may well be argued that the Delhi Agreement, which forms the basis for several essential features of the Constitution of Jammu and Kashmir, is unconstitutional and ultra vires of the Constitution of India. Why? Article 370 does not empower “representatives” of the Union Executive to negotiate and conclude matters, which fall wholly and squarely within the purview of the Legislative.

Then again, Article 370(1) (d) of the Constitution of India vests the President only with power to “specify”‒ i.e., name, state or mention‒ by order, explicitly or in detail, the exceptions and modifications to the provisions of the Indian Constitution as applicable to Jammu and Kashmir. In other words, Article 370 only confers on the President powers to notify by order, which in the general schema of the Constitution does not include powers to “amend constitutional provisions” related to “distribution of powers” between the Union and any of the States in the Union. Besides, interpreting Article 370 so widely as to vest the President with such extensive legislative powers as to enable the altering ad infinitum of fundamental and constitutional rights of people of/in the State of Jammu and Kashmir runs contrary to the very essence of our Constitution and the tenets of “separation of powers” enshrined in it. Promulgation of Orders under the Article also violates many characteristics of the “basic structure” of the Constitution as delineated in a plethora of Supreme Court judgments [e.g., Kesavananda Bharati, Raj Narain, Kihoto Hollohon and other cases).

In fact, it must be said in this context that the President’s legislative powers are confined to: (a) assent for transforming Bills passed by the two Houses into an Act, (b) rule-making for prescribing detailed provisions, (c) declaration of emergency; and (d) ordinance-making. Clearly, “specifying” by order “exceptions and modifications” to constitutional provisions falls under none of these four broad areas of legislative functions of the President. Indeed, construing “exceptions and modifications...specify by order” in Article 370(1) (d) widely to imply “rule-making to prescribe detailed provisions” is a clear transgression, by the Union Executive, of powers of the Union Legislative.

Formulation of Constitutional Relations

On 20 October, 1953, committees were set up under the aegis of the Constituent Assembly of Jammu and Kashmir. The “Basic Principles Committee” presented its report, which was adopted on 15 February, 1954. The adoption of this report embodied the ratification of the State’s accession to India. According to The Statesman (Calcutta Edition), dated 17 February, 1954, of the 75 members in the Constituent Assembly, 64 were present and voted unanimously. Of the 11 absentee members, six were under detention.

A positive outcome of the “Basic Principles Committee” report was that the Customs barrier between Jammu and Kashmir and India was removed with effect from April 13, 1954, at the initiative of the State government.

Constitution (Application to Jammu and Kashmir) Order of 1954

Be as it may, the Delhi Agreement of 1952 formed the framework within which the Constituent Assembly of Jammu and Kashmir worked to draft the Constitution of the State. On May 14, 1954, the President of India, acting under Article 370, issued the Constitution (Application to Jammu and Kashmir) Order, 1954, endorsing the relationship of Kashmir with India as defined in the Delhi Agreement.

This Order superseded the earlier Constitution (Application to Jammu and Kashmir) Order of 1950.

The Order of 1954 enlarged the powers of the Union Parliament in relation to Jammu and Kashmir; yet, the internal autonomy and unique constitutional status of the State were not interfered with.

Subsequently, a series of amendments to the Constitution (Application to Jammu & Kashmir) Order, 1954 have further strengthened the bonds of harmonious association of the State with the rest of the country. But, certain core aberrations continue to haunt the constitutional relationship of Jammu and Kashmir with the Union of India.

The Order of 1954 also introduced Article 35A to the Constitution of India, which defined the classes of persons, who were, are and shall be permanent residents of the State of Jammu and Kashmir. Article 35A also confers special rights and privileges on such permanent residents and saves laws that impose upon other persons any restrictions with reference to: (a) employment under the State Govt; (b) acquisition of immovable property in the State; (c) settlement in the State and so on.

Constitution of Jammu and Kashmir, 1957

The task of framing the Constitution of Jammu and Kashmir entered a decisive phase towards the end of 1956. On 10 October, 1956, the draft was tabled on the floor of the Constituent Assembly, which then deliberated in detail, approved and adopted the Constitution on 17 November, 1956. Subsequently, the Constitution of Jammu and Kashmir came into force on 26 January, 1957.

It is pertinent to note that Section 3 of the Constitution of the State categorically declares that “the State of Jammu and Kashmir is and shall be an integral part of the Union of India.”

Further, Section 5 states that, “The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India.” On top, Section 147 of the Constitution of Jammu and Kashmir, which provides for the Amendment process, confirms that the Sections 3 and 5 are non-amendable.

The Constituent Assembly of Jammu and Kashmir was later duly dissolved after State Assembly elections were held in March 1957.

Concluding remarks

The twin pillars of (a) the Constitution of Jammu and Kashmir, 1957; and (b) the Constitution (Application to Jammu and Kashmir) Order, 1954, have come to govern the constitutional relationship between the State and the Union of India. Ironically, both pillars have been propped up through the flawed use of the temporary provision of Article 370 as crutches.

Some authors and legal professionals, like Mr. A.G. Noorani (in his book, 'The Kashmir Dispute, 1947-2012', claim that “Hari Singh intended to assume independence...,” which is neither supported by a shred of non-hearsay evidence nor well-supported on legal principles. It is amazing how such unsubstantiated, conjectural claims get parroted as the Gospel truth.

Then, “experts”, like Mr. B.A. Khan, Former Chief Justice of High Court of Jammu and Kashmir, and Mr. Rajeev Dhavan, a “constitutional expert”, who has been respectively quoted in the Kashmir Times as having said respectively that “...abrogation of Article 370 seems impracticable” and “...(abrogation) will put the accession (of Jammu & Kashmir) in jeopardy” are well advised to consider the following arguments:

1. The Union has used “temporary provisions” of Article 370 over the years to alter the Constitutional provisions vis-à-vis Jammu and Kashmir and to acquire power, residuary or otherwise, to legislate over matters in the State List and beyond through Executive Orders. On the contrary, under Article 368, a constitutional amendment on matters of "Union-State relations" requires a two-thirds vote by both Houses of Parliament plus ratification by the States concerned. 
2. The special treatment for permanent residents of Jammu and Kashmir is indeed a violation of the generally accepted principle of ‘equality before law’. With due respects, Justice A.S. Anand explains this anomaly with a convoluted: “The special treatment has been accorded to the ‘permanent residents’ to safeguard them from exploitation from outside...” It doesn’t take a financial wizard to figure out that this discrimination is a deterrent, which has reduced to a trickle private investment into the State. In turn, the loss of economic activity has severely curtailed job and wealth creation. 
3. The permanent residents of Jammu and Kashmir are also subject to curtailment of several distinct freedoms, otherwise guaranteed by Article 19 of the Constitution of India, on the additional ground of “security of the State”, a very wide term. Further, clause (7) has been added to Article 19, by virtue of which no judicial review is possible of such restrictions on the freedoms enshrined in clauses (2), (3), (4) and (5) of Article 19, if the Legislature of that State deems such restrictions imposed as reasonable.  

The long and short of my arguments is that a Frankenstein monster has been created. The Article-370-linked twists and turns in the Constitution of India make it seem like a classic case of the tail wagging the dog. 

So much so, that it is quite natural to ask if this great nation's Constitution indeed has served the people of Jammu and Kashmir as it should have. And, wonder, why some people in the Valley are dead against a discussion on Article-370's merits and demerits, let alone its abrogation.

Therefore, I am compelled to rhetorically pose: 

“Does Article 370 truly bestow special provisions on the people of Jammu and Kashmir? Or, is it just a red herring to use gullible people of the State as pawns and puppets for selfish motives?”

Any answers?