Article 370 and the Big Picture of Accession of Jammu and Kashmir

Article 370 is shrouded in so much controversy that it has, over the years, become a tabooed topic for many in the State of Jammu and Kashmir and out. Some consider it blasphemous to even question, in whispered tones, forget loud and bold voices, the relevance of the Article in our Constitution. Thus, I began an academic quest to understand the underpinnings of that Article in our constitutional framework.

My earlier blog-posts on the contentious Article have explored its provisions and ramifications from various angles. The very first post analysed the text of the Article to gain insights into the provisions and proscriptions thereunder. The next one scrutinized transcripts of the Constituent Assembly debate on Article 370 to discern the legislative intent behind its assimilation into our Constitution. The third piece explored the implications of UN resolutions on the accession of Jammu and Kashmir with India. The fourth one traced the historical origins of the erstwhile princely State of Jammu and Kashmir. Apropos of the accession, it also examined the validity of transfer of sovereignty. The fifth post researched case laws and interpreted their impact on Article 370. The sixth blog recounted the post-accession history of Article 370 to critically evaluate the integration of that State with the Union of India.

 

So the stage is set for this final piece, the swansong of my series on Article 370 and accession of Jammu and Kashmir. With all pieces of the "Article-370 puzzle" fitted, I hope to present herein a clear and comprehensive perspective of the accession of Jammu and Kashmir. That lucent picture will, I am sure, clear much of the confusion prevalent over the role of Article 370 in the integration of that State with the Union of India.

Creation of the princely State of Jammu and Kashmir

After the First Anglo-Sikh War was lost, the Sikh Durbar ceded, in perpetual sovereignty vide Article 4 of the Lahore Treaty, its rights and interests over all the territories of Kashmir to the British. The British later concluded the Treaty of Amritsar with Maharaja Gulab Singh‒ the then Maharaja of the present-day regions of Jammu, Ladakh, Gilgit-Baltistan, Trans Karakoram Tract and Aksai Chin‒ transferring all of Kashmir to the latter. This created the princely State of Jammu and Kashmir.

Some‒ e.g., K.M. Panikkar, as quoted by Justice AS Anand in his book, 'The Constitution of Jammu & Kashmir - Its Development & Comments'‒ have claimed that the British transfer of Kashmir to Maharaja Gulab Singh is invalid. Why? Because the British had paid no consideration to the Sikh Durbar for Kashmir! This is a ludicrous argument since the Sikhs agreed to cede Kashmir to the British out of volition. Reason: The war bankrupted the Sikh treasury and hence, they were unable to pay the Rs.10 million demanded as "war indemnity", or reparation. Thus, the British acquired Kashmir by conquest, and not by sale.

Others‒ for instance, Sheikh Abdullah in his speeches, as quoted by PN Bazaz in his book, 'The History of Struggle for Freedom in Kashmir: Cultural and Political, from the Earliest to the Present Day'‒ have questioned the moral and legal validity of this transfer of Kashmir in 1846 to Maharaja Gulab Singh (by the British), because it included people and property along with territory. This argument, nay, political rhetoric was the basis of the Quit Kashmir movement that the National Conference launched under the stewardship of Sheikh Abdullah against Maharaja Hari Singh in 1946. However, such cession due to conquest and sale of sovereign territory was a routine affair during that time. Classic examples include the Alaska and Louisiana Purchases of the United States of America.

Further, the ‘Rule of Inter-temporal Law’ forbids the retrospective application of more modem and progressive ideas (such as the right to self-determination), to acts and deeds that occurred before such ideas developed. Besides, it is a well-settled principle of international law that non-state actors have no explicit right to demand territorial change even though the right to self-determination is enshrined in the two International Covenants of 1966 that are the blueprint for the human rights regime.

Dogra Rule of Jammu and Kashmir during the British Raj

The erstwhile State existed as a "nominally sovereign" entity under the hereditary rulership of the Maharaja during the British Raj till 1947. It was not directly governed by the British, but rather by the Maharaja of Jammu and Kashmir under a form of indirect rule through a subsidiary alliance under the suzerainty or paramountcy of the British Crown.

Clauses (4) and (5) of Section 18 of the Interpretation Act, 1889 read as follows:

(4.) The expression "British India" shall mean all territories and places within Her Majesty's dominions which are for the time being governed by Her Majesty through the Governor-General of India or through any governor or other officer subordinate to the Governor-General of India.

(5.) The expression "India" shall mean British India together with any territories of any native prince or chief under the suzerainty of Her Majesty exercised through the Governor-General of India, or through any governor or other officer subordinate to the Governor-General of India.

Thus, British India was a "dominion" within the British Empire, while the princely states were "internally autonomous states" under suzerainty, or paramountcy, of the British Crown. By treaty, the British had absolute control over the external affairs of the princely states. Yet, as the states were not British possessions, they had powers to govern their own internal affairs, subject to a degree of British influence which in many states was substantial. The armies of the princely States, which existed mainly for ceremonial use and internal policing, were bound by many restrictions that were imposed by subsidiary alliances. However, the Courts of princely states existed under the authority of the respective rulers of those states.

Thus, prior to partition and independence of India in 1947, the Maharaja of Jammu and Kashmir enjoyed "limited sovereignty", "internal autonomy" and "external protection" under the suzerainty of the British Crown.

Partition of British India and Creation of Two Dominions

On 14/15 August 1947, British paramountcy was abandoned and the Indian Empire dissolved. Once India attained independence, the British relinquished sovereignty to the Dominion of India (and Dominion of Pakistan) under the "Two Nation Theory". With the British pullout from the sub-continent, suzerainty of the British Crown 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 newly formed Indian Dominion.

Thus, sovereignty over British India was transferred to the self-governing Dominions of India and Pakistan, the immediate predecessors respectively of the modern-day Republic of India and Islamic Republic of Pakistan. King George VI continued as Head of State of the Dominion of India and was represented by the Governor-General of India till 26 January, 1950. The Constituent Assembly of India worked on the draft Constitution during this interim period. Eventually, the Republic of India came into existence after adoption of the Constitution of India by the Constituent Assembly on 26 January, 1950.

Earlier the Cabinet Mission‒ consisting of Lord Pethick-Lawrence, Sir Stafford Cripps and Mr. AV Alexander‒ had affirmed in its Memorandum dated 12 May,1946 that on termination of British paramountcy, the "rights surrendered by the States to the Paramount Power (i.e., the British Crown) would revert to the States". Thus it is unambiguous that once British India, or rather, India and Pakistan attained independence, absolute sovereignty over the State of Jammu and Kashmir vested in Maharaja Hari Singh.

The Indian Independence Act, 1947 further provided that the suzerainty of the British Crown over the princely states would simply be terminated with effect from 15 August 1947. In theory, the princely states became independent. Nevertheless, under the "Two-Nation Formula" conferment of dominion status on any princely State, that declared independence for itself, was never envisaged. Indeed a vast majority of princely States had signed the Instruments of Accession by 15 August 1947 based on the twin principles of: (a) wishes of the respective rulers of the state (in some instances, under the pressure of popular sentiment) and (b) the geographic compulsion of contiguity with either of the two dominions.

Signing of the Instrument of Accession

The gist of the foregoing section is that complete independence was never on the cards for the erstwhile princely State of Jammu and Kashmir at the time of British withdrawal. Maharaja Hari Singh, as the sovereign head of State of Jammu and Kashmir under British suzerainty, and in exercise of the supreme power and authority, which he had inherited by succession from Maharaja Gulab Singh, chose to sign the Instrument of Accession of India.

Lord Mountbatten, as the Governor-General of India counter-signed the Instrument thus making Jammu and Kashmir an integral part of India subject to the terms therein.

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...” But, the assertion is neither supported by a shred of non-hearsay evidence nor based on well-set legal principles. The assumption here indeed is that Mr. Noorani is not endowed with any clairvoyance or extra-sensory perceptions.

Others, such as Dr. Abdul Ahad, have been quoted as saying that the Instrument of Accession is a bogus document. Such fringe elements forget that Lord Louis Mountbatten endorsed and accepted the accession. He expressed no doubt about the authenticity of the Instrument. Maharaja Hari Singh too never once spoke of any illegal or fraudulent annexation of Jammu and Kashmir. Not once did even the United Nations raise any doubts about the authenticity of the accession during the efforts to resolve the Jammu and Kashmir issue. Therefore, it is truly amazing how such unsubstantiated, conjectural claims get parroted as the Gospel truth. And, to boot, these claims go unchallenged too!

Hence, any assertion that the Maharaja intended to assume independence is a matter of speculation and distortion of history. Indeed, neither the partition of India nor the lapse of British paramountcy over Jammu and Kashmir created a prior right for the Muslims of Jammu and Kashmir to exercise democratically their will over the destiny of the State, be it either total independence or accession to India or Pakistan.

Indeed the Supreme Court of India too has held in State of Seraikella v. Union of India (AIR 1951 SC 253) that the "act of the execution of the Instrument of Accession by the Ruler and its acceptance by the Governor-General are both Acts of State into whose competency no court can enquire." The Apex Court reiterated this position in the judgement of Virendra Singh v. State of Uttar Pradesh (AIR 1954 SC 447).

Pakistan’s Refusal to Recognise Accession

Despite the lawful accession of Jammu and Kashmir with the Dominion of India, the Pakistani leaders refused to accept. In fact, Mr. Liaquat Ali Khan was quoted in the Dawn of 5 November, 1948 as having said that the accession was fraudulent. A wild allegation indeed on several grounds:

1. To begin with, India did not coax or coerce the Maharaja into signing the Instrument. Neither did India use any deceptive means or nefarious schemes to obtain the Ruler’s consent. It was in fact Pakistani aggression that pushed the Maharaja into acceding to the Indian Dominion. 
2. It is even more bizarre if the implication is that Government of India should have accepted the accession only after the people of Jammu and Kashmir had endorsed it. Any Indian insistence on such a precondition for accession would have amounted to interference with the internal affairs of another State. After all, the Government of India lacked the authority to question the right or the power of the Maharaja to accede to either India or Pakistan. 
3. Finally, India had no claim over Jammu and Kashmir prior to the execution of the Instrument of Accession by the Maharaja and its subsequent acceptance by the Governor-General.

The Texan Analogy

In many ways, the accession of Jammu and Kashmir to India is analogous to the annexation of Texas by the United States of America. Texas was an integral part of the independent Republic of Mexico, which had separated from the Spanish Empire. Later, Texas declared independence and was recognised by the United States of America and the principal powers of Europe. In 1844, the State of Texas encountered predatory incursions from Mexico. So, Texas proposed accession to the United States of America. The US Congress sanctioned the annexation in a joint resolution in March 1845. The American army was then deployed to protect US sovereignty over the territories of Texas.

The US Government rebuffed Mexican protest with: "...the Republic of Texas was an independent power, owing no allegiance to Mexico, and constituting no part of her territory or rightful sovereignty and jurisdiction."

Isn't this surely the exact justification that India ought to be giving for Jammu and Kashmir’s accession?

The Question of Plebiscite

A noteworthy point is that the Instrument makes no pre- or post-condition, express or otherwise, of either a separate Constitution for or a plebiscite in the State of Jammu and Kashmir.

Further many believe that the Maharaja negotiated special terms for Jammu and Kashmir. This is patently false. The Maharaja’s Instrument of Accession was no different from the "standard template with boilerplate terms" that all princely States signed.

Sri. V.P. Menon (Secretary of Ministry of States in post-independence India under Sardar Vallabhbhai Patel), in his book titled "The Story of the Integration of the Indian States", has documented interestingly that Pandit Nehru had orally agreed to Lord Mountbatten's "strong opinion" that, "in view of the composition of the population, accession should be conditional on the will of the people being ascertained by a plebiscite after the raiders had been driven out of the State and law and order had been restored."

Clearly, there was neither any understanding, overt or covert, nor any binding agreement, verbal or written, with the Maharaja himself as part of, or as a precondition to, the accession process. Indeed, despite such opinion expressed or observation made during the course of a confidential Defense Committee meeting, the "pious and moral obligation" is not legally binding on the Ruler of Kashmir. On top, the Indian Constitution has no provision for such a referendum to ascertain the wishes of the people of Kashmir.

Relevance of UN Security Council Resolutions

After Maharaja Hari Singh had signed the Instrument of Accession, India flew its troops into the Kashmir Valley in October 1947 to drive the foreign tribesmen out of Jammu and Kashmir. The Indian Army soon discovered that the invaders enjoyed active assistance of Pakistani authorities. Such escalation of hostilities to engage directly in combat with the Pakistani armed forces ran contrary to Pandit Nehru’s pacifist policies. Hence, India formally complained to the Security Council against the Pakistani aggression under Article 35 of the UN Charter, which enables a Member to bring before the Security Council a situation which imperils international peace. India’s complaint was lodged against the illegal act of aggression of Pakistan, which alone fell within the competence of the Security Council.

However, the Security Council expanded the terms of reference to include the issue of "accession of Jammu and Kashmir", which was ultra vires the UN Charter. Reason: Once Maharaja Hari Singh signed the Instrument of Accession, the State of Jammu and Kashmir became an integral part of India. All Indian actions, military or otherwise, within the territories of Jammu and Kashmir were internal affairs. Hence, all deliberations and resolutions of the Security Council on Jammu and Kashmir were violative of Article 2; Para 7 of the UN Charter.

Nevertheless, all resolutions on Jammu and Kashmir were adopted under Chapter VI of the Charter and not Chapter VII. Hence, all Security Council resolutions on Jammu and Kashmir are intended to be followed and implemented through negotiations and peaceful settlement between the conflicting parties. In effect, Chapter VI resolutions are advisory in nature. In contrast, resolutions adopted under Chapter VII invest the Security Council with the power to make stringent demands that mandatorily require nations to comply with the terms set forth therein.

Further, UN Resolution 47  recommended appropriate measures to "bring about cessation of the fighting", "create proper conditions" for a free and impartial plebiscite to "decide whether the State of Jammu and Kashmir is to accede to India or Pakistan." Thus, 'independence' of Jammu and Kashmir was not an option contemplated at all.

Further, the conduct of an impartial plebiscite was contingent on the Government of Pakistan undertaking to secure the "...withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein...and to prevent any intrusion into the State of such elements and any furnishing of material aid to those fighting in the State." But, the fact of the matter is that Pakistan failed to comply with its obligations towards “restoration of peace and order” in the State of Jammu and Kashmir. 

Nonetheless, let us still suppose, hypothetical as it is, the international community miraculously prevails upon Pakistan and gets it to repudiate claims over Gilgit-Baltistan and Azad Kashmir, the two territories of the erstwhile princely State of Jammu and Kashmir under Pakistani control. How do we get China to (a) relinquish its territorial claim over; and, (b) restore control to India of the Trans Karakoram Tract, which Pakistan ceded to China in 1963 under the Sino-Pakistan Frontier Agreement of 2 March, 1963?

Unification of all of Jammu and Kashmir into one territorial entity for the purpose of a plebiscite is a notion that is implausible and inconceivable. Therefore, demands for a plebiscite on the issue of accession in the erstwhile princely State of Jammu and Kashmir, are untenable and inexpedient in the present. Indeed it is farfetched and totally in the realm of a delusional illusion. A pipe dream in a fantasy world, if you will!!

Moreover, if the "concept of referendum" was such a cardinal principle underlying the UN Movement, why did the Security Council refuse that "right of self-determination" to the people of erstwhile Palestine? And, why was the artificial, arbitrary carving of the modern State of Israel within the erstwhile British Mandate State of Palestine permitted?

If this isn't UN double-standards, then what is?

Formation of the Constituent Assembly of India

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, which it carries out in a relatively short time. The assembly is then dissolved. Subsequent to such dissolution of the Constituent Assembly, constituent power passes on to the Legislature. That means constitutional amendments are then accomplished through procedures specified in the Constitution itself.

The Constituent Assembly of India 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 Assembly met at its first session on 9 December, 1946.

After all parties concerned accepted and agreed to the "Two-Nation Theory" for the partition of British 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 August, 1947, the Constituent Assembly (of India) was expanded to a total of 299 members, including nominees from the princely states.

Post-Accession Political Developments in Jammu and Kashmir

Praja Sabha, the unicameral legislature set up under the Jammu and Kashmir Constitution Act, 1939, had ceased to exist just before accession of the State. Through a Proclamation dated 5 March, 1948, Maharaja Hari Singh had replaced an earlier Emergency Administration (headed by Sheikh Abdullah) with a proper Interim Government that consisted of a Council of Ministers. Sheikh Abdullah had been appointed the Prime Minister of that Interim Government of Jammu and Kashmir by Royal Warrant.

The Proclamation of March 1948 made absolutely NO mention of any plebiscite. Yet, if provided for the framing of a Constitution by a National Assembly, which was to be convened based upon adult suffrage

It can be inferred that even after its accession to the Dominion of India, the internal administration of Jammu and Kashmir was being governed by the Jammu and Kashmir Constitution Act, 1939. In effect, the accession transferred to the Dominion of India the earlier relationship with the British Crown, the suzerain power under which the State of Jammu and Kashmir was administering its internal affairs.

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. 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?

Constituent Assembly of India Proceedings on Article 306A/370

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). Much of the text of the draft Article 306A was the same as that of Article 370 in the adopted Constitution.  

Article 306A was then tabled on the floor of the Assembly for discussions on 17 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 mentioned that the, "...meaning of this accession is that at present that State is a unit of a federal State, namely, the Dominion of India." Thus, not only the territorial integration of the State of Jammu and Kashmir with the Indian federation, but also its irrevocable nature was confirmed.

A provision like 306A was needed, as Sri. Ayyangar elaborated, since the quasi-democratic legislative body of Praja Sabha had been wound up earlier; instead, an Emergency Administration under Sheikh Abdullah, appointed by Royal Warrant had been put in charge. Hence, it was felt that a body of representatives, duly elected through democratic means in Jammu and Kashmir, had to ratify the Constitution of India.

Nevertheless, our founding fathers felt that neither a legislative assembly be elected, nor a constituent assembly could be convoked till peace returned to the State. Hence, Article 306A was introduced as an interim arrangement or a temporary measure till the formation of a Constituent Assembly in Jammu and Kashmir. Pertinently, the Merriam-Webster Dictionary gives the connotations of the adjective 'interim' as, "used or accepted for a limited time" and "not permanent". When used as a noun, as per the same lexicon, the word means, "an intervening time" or "interval". Thus, it is crystal clear that Article 306A/370 was meant to be operative transitionally. And, in the context, the use of the term 'interim' could have ONLY MEANT: "TILL THE RATIFICATION OF ACCESSION WAS ACCOMPLISHED".

Besides, during the Constituent Assembly of India debate on temporary provisions for the State, none of the four members ever mentioned that the State of Jammu and Kashmir was either contemplating independence or pursuing a plebiscite to determine the will of the people.

Adoption of the Constitution of India

Eventually on 26 November, 1949, the Constituent Assembly of India adopted the draft Constitution. Thus, when the Constitution took effect on 26 January 1950, India became a Democratic Republic. Thereafter, the Constituent Assembly continued to function as the Provisional Parliament of India till the first general elections took place in 1952.

It is pertinent to note that all the four hon'ble representatives of the State of Jammu and Kashmir (besides 280 other members) in the Constituent Assembly of India appended their respective signatures to the adopted Constitution on 24 January, 1950. Of course, this adoption affirms 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 in Part III certain fundamental, non-violable rights.

Constitution of India vis-à-vis Jammu and Kashmir

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 of America - a schema distinctly different from that of the Indian Constitution. This asymmetry in our federal structure is an aberration to the fundamental principle of "paramountcy of national interest despite federalism" enshrined in our Constitution.

Thus, the only conclusion that one can draw is that the framers of our Constitution envisaged either the abrogation of the Article or its modified application, as provided for in Article 370(3). The latter was to be on the Constituent Assembly’s recommendation, which never came to pass, as we will see a little later.

It is vital to also remember that the founding fathers constituted our nation as a representative democracy and not as a pure or direct democracy. Hence, the Constitution makes no provision for a referendum or a plebiscite for any legislative or executive action of the government. Since Sheikh Abdullah et al. were member-representatives of Jammu and Kashmir in the Constituent Assembly of India and co-signatories to the adoption of the Indian Constitution, it is a valid inference that a plebiscite was never visualised, despite the UN Resolutions and Nehru’s promises, verbal or otherwise, on the same.

Indeed, if a plebiscite were so sacrosanct, would the Jammu and Kashmir representatives in the Constituent Assembly not have refused to affix their signatures to the adopted Constitution of India? Or, for that matter, if the Maharaja had contemplated the option of independence for Jammu and Kashmir, would he have even nominated his representatives for the Constituent Assembly of India? After all, when the Indian Constitution was eventually adopted on 26 January, 1950, United Nations’ resolutions calling for a plebiscite were very much in the public domain and the geopolitical arena.

Therefore, as a unit of the Dominion of India post-Instrument of Accession, Jammu and Kashmir became a federal unit of the Republic of India after adoption of the Constitution by the Constituent Assembly of India, subject to the provisos in Article 370.

Special Status Accorded to Jammu and Kashmir

Many claim that Article 370 confers Jammu and Kashmir with special status. Nothing can be farther from the truth.

For starters, a review of the transcripts of Constituent Assembly proceedings will show that Sri. Ayyangar referred to Article 306A of the draft Constitution (i.e., Article 370 of the Constitution of India) as an "interim system/arrangement" four times. He also made a mention thrice of the "special conditions" in Kashmir, which mandated the need for such "interim or temporary provisions". Under no stretch of one’s imagination, as explained above, can such distinctly "temporary provisions" be deemed to confer "special privileges ad infinitum".

Indeed as Sri. Ayyangar pointed out during the Constituent Assembly proceedings, Article 306A/370 was an interim arrangement till "the will of the people, through the instrument of a constituent assembly...determine the Constitution of the State (of Jammu and Kashmir) as well as the sphere of Union jurisdiction over the State."

The Instrument, with its standard, boilerplate terms, did confer certain post-accession discretionary powers on the Maharaja of Jammu and Kashmir. In effect, the accession of that princely State 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". Indeed the Supreme Court too has held in the Prem Nath Kaul (AIR 1959 SC 749) and Rehman Sagoo (AIR 1960 SC 1) cases that 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.

However, the terms in the Instrument were analogous with those of accession of other princely states.

Constituent Assembly of Jammu and Kashmir

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. A total of 100 Constituent Assembly segments were assumed for the whole of the State. In view of vast tracts of the State being under Pakistani control, the working strength of the Assembly was kept at only 75.

Elections to the Constituent Assembly of the State of Jammu and Kashmir were completed by August, 1951. The National Conference swept the elections; it secured a massive mandate winning all 75 seats in the Constituent Assembly. On February 15, 1954, the Constituent Assembly members who were present cast a unanimous vote ratifying the State’s accession to India.

The first meeting of the newly formed Constituent Assembly was held on 31 October, 1951.

Crystallisation of the Constitutional Relationship

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".

Indeed, the Central Executive agreed to many concessions. The question arises as to who authorised those talks? Were the representatives of the Indian government empowered by the Indian Parliament to hold parleys with their Jammu and Kashmir counterparts? If not, isn't it safe to conclude 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? Or, that no concession extended to Jammu and Kashmir, courtesy this "understanding", casts a lawful 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.

Constitution (Application to Jammu & Kashmir) Orders

The President promulgated the Constitution (Application to Jammu and Kashmir) 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. It also vested the State Government with residuary powers of law-making.

The Order was later repealed by the Constitution (Application to Jammu and Kashmir) Order, 1954 dated 14 May, 1954. This '1954-Order' enhanced 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.

The Order of 1954 also introduced Article 35A to the Constitution of India, which defines the classes of persons, who were, are and shall be permanent residents of the State of Jammu and Kashmir. Article 35A 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.

A series of later 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 still, certain core aberrations continue to haunt the constitutional relationship of Jammu and Kashmir with the Union of India.

Ratification of Jammu and Kashmir Accession

The “Basic Principles Committee”, set up under the aegis of the Constituent Assembly of Jammu and Kashmir 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.

The Constituent Assembly (of Jammu and Kashmir) thereafter worked on the draft Constitution, which was tabled on the floor of the Constituent Assembly on 10 October, 1956. Thereafter the draft was deliberated upon in great detail. Finally, on 17 November, 1956, the Assembly approved and adopted a version, which declared the whole of the former Princely State of Jammu and Kashmir to be 'an integral part of the Union of India'. Later, the Constitution of Jammu and Kashmir came into force on 26 January, 1957.

It is also relevant to note that Part II, 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. 

So then, do naysayers, or separatists for that matter, still have any legal legs to stand on for pushing their agenda of secession? I think not!

Constitutional Relationship between the Jammu & Kashmir and India

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, as crutches, of Article 370, a temporary provision.

The Union indeed acquired the power to legislate not only on all matters in the State List, but others not mentioned in the Union List or the Concurrent List - the residuary power. How? By getting the President to promulgate Constitution (Application to Jammu and Kashmir) Orders, which only require the Governor’s consent, period!

In relation to other States, an amendment to the Constitution would require a two-thirds vote by both Houses of Parliament plus ratification by the States (Article 368). For Kashmir, executive orders have sufficed since 1953 and can continue practically forever. Doesn't such a legislative process diminish the status of the State's powers?

Powers of the President under Article 370

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 unilaterally "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 other characteristics of the "basic structure" of the Constitution as delineated in a plethora of Supreme Court judgments [e.g., Kesavananda Bharati (AIR 1973 SC 1461), Raj Narain (AIR 1975 SC 2299), Kihoto Hollohon (AIR 1993 SC 412) and other cases].

As is widely known, our Courts have identified the elements of the "basic foundation and structure of the Constitution" as: (a) supremacy of the Constitution; (b) Separation of powers between the legislature, the executive and the judiciary; (c) Republican and democratic form of Government; (d) Secular and federal characteristics of the Constitution; (e) Dignity of the individual secured by the various fundamental rights and the mandate to build a welfare state contained in the directive principles; (f) The unity and integrity of the nation; (g) Parliamentary system; (h) protection and sustenance of the purity of the electoral process; (i) rule of law; and (j) independence of judiciary.

Further, it must be said in this context that the President’s legislative powers under the Constitution 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.

Exemptions and Modifications of the Article

The Supreme Court has refused to subscribe to the view that the word ‘modification’, as used in Article 370(1) (d), is to be interpreted in a ‘narrow or pedantic sense'. A Constitution Bench has held [in Puranlal Lakhanpal v. President of India; AIR 1961 SC 1519] that "...the word 'modification' used in Article 370(1) must be given the widest meaning in the context of the Constitution and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any 'radical transformation'."

In the opinion of the Hon'ble Court, the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. Hence, if the President has the power "to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir", then the power to make modifications must be considered in its widest possible amplitude.

The Supreme Court of India has further bolstered this view in a subsequent case [Sampat Prakash v. State of Jammu & Kashmir; AIR 1970 SC 1118], wherein it held that the power under the Article 370 includes the power to add, amend, vary or rescind.

Thus, Article 370 confers the President of India with wide-ranging powers to alter the powers and privileges applicable to the State of Jammu and Kashmir under the Constitution of India.

Consultation with and Concurrence of the Government of the State

Consultation with and Concurrence of the Government of the State

Article 370(1) stipulates 'consultation with the Government of the State' as a pre-requisite for any exception or modification of provisions of the Constitution that relates to the matters specified in the Instrument of Accession. The Apex Court has opined in several cases [Union of India v. Sankal Chand Himatlal Sheth; AIR 1977 SC 2328; MM Gupta v. State Of Jammu & Kashmir; AIR 1982 SC 1579] that consultation implies making one’s point of view known to the other(s) examining relative merits of their views. Hence, so long as the view of the Governor of the State of Jammu and Kashmir is elicited, the President is empowered to specify the applicability of provisions of the Constitution of India with regards to matters in the Instrument of Accession, with suitable modifications or otherwise.

The Explanation to Article 370(1) dictates though that the advice of the Council of Ministers is necessary. Article 74 of the Constitution of India too indicates that the President shall "act in accordance with the advice tendered" by the Council of Ministers and that such advice of the Council is binding. Hence, the power of Parliament, to make laws applicable to the State of Jammu and Kashmir, is not only wide-reaching, but also pretty much absolute. It further establishes the paramountcy of the Union Government over the State of Jammu and Kashmir.

In Mohd. Maqbool Damnoo v. State Of Jammu and Kashmir; AIR 1972 SC 963, a five-judge Constitution Bench of the Supreme Court ruled that "the Government of the State means...the Governor of the State". 

However, in the current scheme of things under Article 370, can't the President, acting in tandem with the Governor, pretty much amend the federal relationship between the State and the Union any which way? How can one still put Jammu and Kashmir on a higher pedestal by stating that it enjoys "special status"?

Recommendation of the Constituent Assembly of Jammu and Kashmir

Another contention of Mr. Noorani is that, "Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution which apply to all the other States; namely, Article 368. For, in relation to Kashmir... that (read: such amendment) requires the concurrence of the State's government and ratification by its Constituent Assembly."

Once again Mr. Noorani is on the wrong side of the legal argument. My reasoning is based on the Doctrine of Impossibility (a common tenet of Contract Law), which has been eloquently explained by the Supreme Court in the Narmada Bachao Andolan v. State of MP judgment on 11 May, 2011. Now, let us presume that obtaining the 'ratification of Constituent Assembly of Jammu and Kashmir' is a duty cast on the President, under the Constitution of India, for any amendment or abrogation of Article 370. Then, by virtue of the Doctrine of Impossibility, the President cannot be expected to comply with a provision that is rendered impossible because that Constituent Assembly of Jammu and Kashmir was dissolved after completion of the work entrusted to it (i.e., the drafting of the Constitution of Jammu and Kashmir). Indeed, the President of India cannot be faulted for the dissolution of the Constituent Assembly of Jammu and Kashmir.

Amendment of Article 370 under Article 368

There is no doubt that Article 370 was designed to be of a temporary nature. My rationale follows.

The Article contains provisions which vest the President with: (a) the power to abrogate it; and, (b) to amend it during the interim period of the Article's existence. In particular, Article 370(3) states that the President, by public notification, may declare that Art. 370 shall cease to be operative, or shall be operative only with such exceptions, and modifications, and from such date as he may specify. 

But then, the proviso to Article 370(3) provides that before the President can issue any such notification, the recommendation of the Constituent Assembly of the State 'shall be necessary'. Since the Constituent Assembly of the State exists no more, the Proviso is not operative or applicable any longer. 

Some may argue (invalidly, in my humble opinion) that the non-existence of the Constituent Assembly of Jammu and Kashmir renders a certain degree of "immunity" for the repeal of Article 370. In that case too, if any modification is to be made to Article 370, recourse can be had to Article 368, which pertains to amendment of the Constitution of India.

Abrogation of Article 370

In view of several judgments of many Supreme Court precedents [e.g., P Sambamurthy v. State of Andhra Pradesh (AIR 1987 SC 663) and RC Poudyal v. India (AIR 1993 SC 1804)], it is clear that Article 370(1) is not etched in stone despite the non obstante clause [i.e., the “notwithstanding anything in this Constitution” clause]. All of Article 370(1) indeed must be interpreted within the framework of the Constitution. And, if the Constitution in its entirety permits abrogation of the Article 370(1), then the non obstante clause imposes no fetters on such an endeavor.

The Hon’ble Apex Court of the country held [in the seminal Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461)] that the power to amend the Constitution is to be found in Article 368 itself. Further, the Full Bench of the Supreme Court, which decided the case (split verdict), did not concede an unlimited amending power to Parliament under Article 368. The amending power was subjected to one very significant qualification, viz., it cannot be exercised in such a manner as to destroy or emasculate the basic or fundamental features of the Constitution. A constitutional amendment which offends the basic structure of the Constitution is ultra vires.

Any objective study of the various aspects, identified by Courts as comprising the basic structure of our Constitution, will show that Article 370 can in no stretch of one’s imagination be treated as a basic characteristic, which can neither be amended nor abolished.

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

1. The Instrument of Accession per se makes no promise or commitment of a separate Constitution of Jammu and Kashmir. Neither was such a separate Constitution agreed to in Article 306A/370 of Constitution of India. Ratification of the Constitution of India (by a Constituent Assembly of Jammu and Kashmir) does not automatically imply a separate Constitution for the State. Be as it may, subsequent geopolitical compulsions prompted the Government of India to agree to those demands.
2. 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. 
3. The special treatment for permanent residents of Jammu and Kashmir is indeed a violation of the generally accepted principle of ‘equality before law’. 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 the flow of private investment into the State. In turn, the loss of economic activity has severely curtailed job and wealth creation.  
4. 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. 

Therefore, isn't it a valid argument that Article 370 accords 'inferior status' to Jammu and Kashmir?

Final Observations

As has been highlighted earlier in this article, Constituent Assemblies are always dissolved after adoption of their respective Constitutions, which then provide for corresponding mechanisms for constitutional amendments. In fact, by definition, constituent power passes on to Legislature under the very Constitution that the Constituent Assembly adopts.

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 a resurrection or re-institution of the Constituent Assembly of India.  

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, what purpose is Article 370 serving? 

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? 

The long and short of my arguments is that a Frankenstein monster has been created ‒ one that is shrouded in smoke and surrounded with mirrors. 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.

In fact, the likes of Prof. Sheikh Showkat Hussain who claim that Article 370 is the constitutional bond linking Jammu and Kashmir with India, are misrepresenting facts. But, if one applies his mind to the provisions of Article 370, it will be apparent, through a process of logical deduction or rational construction or otherwise, that nothing in the text of the Article is so sacrosanct as to willy-nilly make its abrogation impossible. Indeed, the Instrument of Accession is the foundation on which the edifice of territorial integration of the State with the Union of India rests.

Besides, can’t the hand that 'giveth' also be the hand that 'taketh'? I mean, if the Constitution provides a certain relational bond between India and Jammu & Kashmir, can't the same Constitution modify or nullify that same bond?

You views, comments, remarks, observations, etc., on this post are all MOST WELCOME!