Four Glaring Mistakes in the Judgment of the J&K High Court

In a recent judgment, a two-Judge bench of the Hon'ble High Court of Jammu and Kashmir ruled that Article 370 of the Constitution of India had assumed permanence and that the provision is beyond amendment, repeal or abrogation. The Hon’ble Judges Janak Raj Kotwal and Hasnain Massodi have surely used convoluted logic, perhaps out of ignorance, if not incompetence, to conclude that the said Article is “beyond amendment, repeal or abrogation.”  It appears that, in the process of making invalid, inaccurate, inappropriate and mostly untenable arguments, they have extensively adopted a policy, intentionally or otherwise, of “suppressing the truth and suggesting the false”.

I had critically evaluated the judgment and blogged a rebuttal earlier. That blog post though was a tad too legal in its linguistics; hence this plain English write-up about the lapses and loopholes in the judgment.  

On the whole, there are four major mistakes, misconceptions or misrepresentations in the Hon’ble Court’s judgment:

Mistake 1: Sovereign Powers of the Maharaja Hari Singh

The (erstwhile princely) State of Jammu and Kashmir regained absolute sovereignty on 15^th August 1947 on the lapse of British paramountcy. Hence, Raja Hari Singh had the power to opt for independent statehood.

The Cabinet Mission’s “Memorandum on States’ Treaties and Paramountcy”, dated May 12, 1946, no doubt, represented the substance of what was communicated to the representatives of the States at their first interviews with the Mission. The document did enunciate the idea of independent statehood for the princely states.

But then, that Memorandum was drawn up while the Mission was in discussions with Indian National Congress (INC) and Muslim League (ML) leaders. Many parleys were held subsequently with party leaders to discuss proposals for transfer of power. Congress and League leaders did not agree on the terms of the Mission’s formula. Hence, the Cabinet Mission to India announced its “suggested” plan unilaterally on 16^th May 1946 (but, published on 22^nd May 1946), which looked to create a united dominion of India as a loose confederation of provinces. In that plan, the Mission expected princely states to negotiate their way in the Union government as part of the transfer of power. Retention of paramountcy and attainment of independence by the states was not envisaged. Besides, both the Congress and the League denounced that proposal of May 16, 1946.

The Mission then proposed an alternative plan on 16^th June 1946, wherein the idea of partition was mooted. While the Congress rejected this plan outright, the League withdrew acceptance eventually.

Statements of the Secretary of State, Lord Listowel, and the Viceroy, Lord Mountbatten─ made on 16^th July 1947 and 25^th July 1947 respectively─ clearly affirm that the British government, under the formula worked out in the Indian Independence Act, 1947, intended to create only two dominions, viz., India and Pakistan. Attainment of absolute sovereignty and independent statehood was only a theoretical possibility for the princely states. Historical evidence stands testament to the fact that not even one of the princely states eventually became an independent, sovereign State.

Then again, the Government of India Act, 1935─ which was adopted and operated as part of the constitutional basis for the dominions of India and Pakistan after independence, till the Constitution came into force─ also provided for representation of Jammu and Kashmir in the Federal Legislature. This clearly indicates that Jammu & Kashmir not being part of either of the two dominions was not envisaged at all.

If sovereignty and independence had indeed been a viable option, would not the British have made arrangements for allocating part of the Armed Forces to the State of Jammu & Kashmir and placing it under the command of the Maharaja, so as to enable him to defend his territory better?

Mistake 2: Instrument of Accession

The immediate object of accession was to make possible and legitimize deployment of troops of Indian Army to the State. The attending circumstances of the Instrument of Accession indicate that a Constitutional framework was conceived where under the State of Jammu and Kashmir was to enjoy a special constitutional status.

The object of the accession is immaterial in the context of the result of the accession, i.e., the integration of the State of Jammu and Kashmir with the Dominion of India. Given the prevailing circumstances of an invasion of his kingdom, the Maharaja made a choice out of his own volition. The Government of India did not coerce, compel or unduly influenced him into signing the Instrument of Accession. Consequently, the validity or legitimacy of the Instrument can hardly be called to question.

Further, the Instrument of Accession that Maharaja Hari Singh signed was an exact replica of what about 500 other princely states executed. Besides, there is no historical evidence of any overt or covert commitment to confer “special constitutional status” on J&K, except for the “wish” of Lord Mountbatten’s government that the State’s accession should be settled by a reference to the people, once law and order had been restored and Kashmir soil cleared of the invader. The latter condition is yet to be achieved. Nonetheless, a “wish”, under any and all interpretations of linguistic constructs or “jurisprudential” tenets is not tantamount to a contractual promise, or obligation, or commitment for according any “special constitutional status”.

Furthermore, that “wish” or “desire” was extinguished once Lord Mountbatten’s government was replaced by C. Rajagopalachari’s government.

Clearly, under the terms of this Instrument of Accession, the Ruler exercised his discretion in designating four of his state subjects, viz., Sheikh Abdullah, Motiram Baigra, Mirza Mohmmad Afzal Beg and Maulana Mohammad Sayeed Masoodi, to represent the State of Jammu & Kashmir in the Constituent Assembly of India. And, when the four representatives affixed their signatures, the Maharaja accorded his unconditional acceptance to the Constitution of India. Thus, Maharaja Hari Singh bestowed his allegiance to the sovereignty of India and the supremacy of its Constitution.

Mistake 3: Special Status for Jammu & Kashmir

The State was to stand on a different pedestal after accession and to be given distinct and different status as regards constitutional powers.

A comprehensive review of the transcripts of the Constituent Assembly proceedings show that Shri. Ayyangar referred to Draft Clause 306A (i.e., Article 370 in the Drat Constitution) as an “interim system / arrangement” four times. He also made a mention thrice of the “special conditions” that necessitated the inclusion of such “interim or temporary provisions”. Under no stretch of one’s imagination can an “interim”, i.e., “temporary” provision desirable because of “special conditions” be deemed to confer “special status” on the State of J&K. Any attempt to justify the anointment of “special status” on Jammu and Kashmir by such reference to Constituent Assembly debates would be motivated, if not mischievous, manipulative or mala fide.

Further, during the intervening, transitional period between gaining of independence and the coming into force of the Indian Constitution, the Government of India Act, 1950 was the constitutional framework of India. The princely States were kept out of the ambit of the Act. Consequently, after accession, other princely states, such as Mysore, too chose to be governed under their existing administrative and governance framework. Indeed, Mysore too convened a Constituent Assembly of its own to frame a Constitution, based on the provisions of the Instrument of Accession.

In other words, Article 370 or no Article 370, the Instrument of Accession had the relevant provisions empowering rulers to convene Constituent Assemblies for their respective States. Indeed, there is absolutely nothing exceptional or extraordinary about the decisions and declarations of the Ruler to convene the Constituent Assembly for the State of Jammu and Kashmir.

Mistake 4: Article 370- The Link Connecting State of J&K with India

Article 370 is a permanent provision of the Constitution. It cannot be abrogated, repealed or even amended as since Constituent Assembly is no longer extant.

Article 370 is placed under the Part XXI of the Constitution of India. This Part was originally titled “Temporary, Transitional Provisions”. The word “Special” was added through a constitutional amendment later. The moot question is how a “temporary, transitional provision” can be interpreted to be “permanent”?

On top the members of the Constituent Assembly of J&K (CAJK) were all very erudite, experienced and accomplished people. There surely knew that the Constitution is not a rigid, static document; but a dynamic, constantly-evolving legislative framework, which binds people together. Had it been felt that the provisions of Article 370 were permanent and that it envisaged an ongoing role for the CAJK, then they surely would never have disbanded themselves. Furthermore, the CAJK clearly saw its role and terms of reference as being that of drafting the Constitution of J&K. They had neither the mandate nor the locus standi to advise or recommend the repeal of Article 370, which is / was a parliamentary prerogative.

Further, under our constitutional schema, only those parts of the Constitution which are not part of the Basic Structure (as held in various Supreme Court judgments) are amendable. Article 370 is not an integral part of the Basic Structure. This implies that it can be amended and even abrogated, provided such amendment or abrogation is not ultra vires the Constitution.

Hence, how can the sovereign rights of the Indian Statehood, supremacy of its Constitution and legislative powers of Parliament in a representative democracy be diminished or curtailed? Indeed, the Union cannot be denied the exercise of its sovereign powers because of a procedural lapse by the Constituent Assembly of Jammu and Kashmir.

Now it is high time the people of Jammu and Kashmir initiated an honest dialogue and made an objective attempt to assess whether Article 370 has truly furthered the interests of the State. If the conclusion is that Article 370 has had a deleterious, detrimental effect on the State of Jammu and Kashmir and its people, then the State and Union should work towards either its amendment or its abrogation.

Blindly clinging on to Article 370 because of political pressures or perverse propaganda is a disservice to the great State of Jammu & Kashmir and its people.