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.
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:
- 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.
- 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.
- 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.
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:
- 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.
- 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.
- 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.
- 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!
