THE GORY PAST OF SECULARISM IN EUROPE

Historical Origin of the Concept

The concept of "Secularism" is perceived to be a lofty ideal in most democratic nations. However, the evolution of the term has a long history of violence and bloodshed, particularly in Europe where it was conceived. 

The etymological origin of the "Secular" or "Secularism" can be traced to the birth of Christianity. After Jesus’ crucifixion and resurrection, Christianity was spread through his disciples. Despite persecution during the early days, Christianity survived in pockets across Europe. Eventually in the 3^rd Century AD, Emperor Constantine I adopted it as the religion of the Roman Empire.

Main Tenet of Christianity

A fundamental dogma of Christianity is that humans are born in sin, which dates back to the days of mythical Adam and Eve, the couple guilty of committing the “original sin”. The merciful God Almighty sent his only son, Jesus Christ to earth to save humanity. So Lord Jesus redeemed humans by dying for their sins on the cross; he then rose from the dead and joined his Father up in heaven. However, Christianity professes that only baptized Christians can benefit from Jesus’ sacrifice; and, non-Christians will be consigned to eternal hell on Judgment Day.

While Christianity recognizes an afterlife in heaven, the abode and Kingdom of God, it does not believe in rebirth. That Christian tenet inherently implies the existence of two worlds - a physical, temporal world and an incorporeal, spiritual world. This belief was accepted during the Middle Age prior to the Italian Renaissance in the 14^th Century, since the Church and state were intertwined. Heresy was punished under harsh laws of brutal and barbaric torture and death.

The Middle Age

For centuries, many monarchs believed they had a divinely ordained right to rule their kingdoms. At times, they even exercised control over the churches within the boundaries of their respective kingdoms. On the flip side was the Catholic doctrine that the Pope, as the Vicar of Christ on earth, should have the ultimate authority over the Church, and indirectly over kings and their kingdoms. Besides, throughout the Middle Age, the Pope claimed and exercised the right to depose Catholic kings of Western Europe, sometimes successfully, other times not.

In the 11th and 12th centuries, many popes challenged the authority of European monarchies to name or invest bishops of cities and abbots of monasteries. The conflict ended when Emperor Henry V and Pope Calixtus II signed the Concordat of Worms in 1122, which demarcated royal and spiritual powers. The outcome, vesting monarchs with limited authority in ecclesiastical matters, was a victory for Roman pontiff and his claim that he was God's chief representative in the world.

Later, in early 14^th century, Pope Boniface VIII attempted to bring both temporal and spiritual powers under the pope’s jurisdiction. In his Bull of 1302, Unam Sanctum, he stated that since the Church is necessary for salvation, it is absolutely necessary for even rulers to subject themselves to the papacy.

Many European rulers resented the autocratic papal attempt to infringe on “temporal” affairs of the state. So they denounced the move and declared Boniface VIII a heretic. The Pope retaliated by excommunicating the King of France. This infuriated king joined hands with other European rulers and the coalition army launched an attack on Boniface VIII and demanded his resignation. Despite release from captivity after three days, Boniface VIII reportedly committed suicide by bashing his skull against a wall. He was found to have "gnawed through his own arm".

The Protestant Reformation

In the early 16^th Century, some priests like Martin Luther challenged the authority of the Pope. Luther’s Ninety-Five Theses was the fountainhead of the Protestant Reformation. He was an exponent of the Two-Kingdoms Doctrine― to be precise though, he termed it Two-Governments. This doctrine enunciated that the church should not exercise worldly government, and princes should not rule the church or have anything to do with the salvation of souls. Thus, the modern conception of separation of church and state was born.

The attempt of Luther and other priests was to rid the Roman Catholic Church of certain false doctrines, systemic corruption and ecclesiastic malpractices. Protests against papal corruption began in Germany and soon spread to other parts of Europe, eventually culminating in a series of religious wars in Continental Europe between Roman Catholic House of Habsburg and Protestant princes. The Thirty Years’ War ended when the Peace of Westphalia treaties were signed.  

The main tenets of the peace treaties were that: (a) each prince would have the right to determine the religious denomination of his own state, the options being Roman Catholicism, Lutheranism and Calvinism; and, (b) Christians, living in principalities where their ecclesiastical denomination was not the established, were guaranteed the right to practice their faith in public during allotted hours and in private at will.

The treaties effectively ended the papacy’s pan-European political power. European sovereigns, Roman Catholic and Protestant alike, ignored Pope Innocent X’s protests and diktat against the Peace of Westphalia. Thus, the first step towards segregation of religion and state was taken in the continent.  

The English Reformation began in the late 1520s, when Pope Clement VII’s refused to annul the marriage between King Henry VIII of England and Catherine of Aragon. Infuriated by the Catholic Church’s decision, the King declared himself as the ruler of the new Church of England. The monarchs of England and Great Britain have retained ecclesiastical authority in the Church of England since.

After King Henry VIII usurped ecclesiastical power, strict penal laws were enacted in England against Catholics and other dissenters who did not owe allegiance to the Church of England. To escape the persecution, many dissenters sailed voluntarily to the American Colonies in the hope of religious freedom. Later the Constitution of United States was specifically amended to make it secular by banning the establishment of religion by Congress.

The Age of Enlightenment

The idea that reason, and not blind belief in a ‘revealed truth’, should guide society, began to take root in the 17^th Century. The concept of secularism is often credited to the writings of English philosopher John Locke, who argued that the government lacked authority in the realm of individual conscience, as this was something rational people could not cede to the government for it or others to control.

Enlightenment writers, including Voltaire, often stressed anti-clericalism and attacked the Catholic Church. The idea gained support from the anti-church violence during the French Revolution. This led to the process of separation of Church from state. Such separation is called secularism. The George Jacob Holyoake was the first to coin the term “secularism” in 1851.

Concluding Remarks

As can be seen, a lot of violence and bloodshed has preceded the birth of the concept of "Secularism" in Europe. The 'invention' of the tenet was necessary because of conflicting claims in Europe over the right to rule the subjects of the state. 

Today, most western democracies are ‘secular’, that is, the Church cannot push its agenda through state power. The long and short of it is that secularism implies the exclusion of religion in the running of government. 

Yet ironically, many western democracies still grant Christianity preferential treatment. For example, the German Constitution guarantees that the Christian philosophy is taught in government schools.

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.

THE TEN COUNTER-ARGUMENTS: A Critique of the Judgment of the Hon'ble High Court of Jammu & Kashmir in the Ashok Kumar Case

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 Court went on to say that Article 35A gives 'protection' to existing laws in force in the State of Jammu and Kashmir. The dispute before the Hon’ble High Court of Jammu and Kashmir related to the right of the reserved category government servants to accelerated promotion provided under Section 6, J&K Reservation Act, 2004, read with Rule 9 & 34, J&K Reservation Rules, 2005.

I will desist from going into the merits of the specific controversy and the efficacy of the Court’s adjudication, because that is not the focus of this article. The focus herein is the objective analysis and critically evaluation of the Court’s rationale for concluding that Article 370 is “non-abrogable” and “non-amendable”.

The Cabinet Mission, 1946

1.       To begin with in Para 16 of the judgment, the Hon’ble Judges have stated:

“The State of Jammu and Kashmir ("the State" hereinafter) like other 600 and odd princely States, regained its sovereignty on 15th August 1947, on the lapse of British Paramountcy, enactment of Indian Independence Act 1947 and emergence of Dominions of India and Pakistan. This was made clear by Cabinet Mission Memorandum dated May 12, 1946 as regards "States Treaties and Paramountcy" and Statement of Viceroy of May 16, 1946, to the effect that "Paramountcy can neither be retained by the British Government nor transferred to the new Government."

There is substantial distortion of facts, mischievous or otherwise, in the untenable averments that: “the State of Jammu and Kashmir...like other 600 and odd princely States, regained its sovereignty on 15^th August 1947, on the lapse of British Paramountcy...”

The Cabinet Mission’s “Memorandum on States’ Treaties and Paramountcy”, dated May 12, 1946─ presented to His Highness the Chancellor of the Chamber of Princes (Note: Hajji Nawab Hafiz Sir Hamidullah Khan, the last ruling Nawab of Bhopal was the Chancellor of the Chamber of Princes in 1946) on 12 May, 1946─ was drawn up while the Mission was in discussions with Indian National Congress (INC) and Muslim League (ML) leaders. It represented the substance of what was communicated to the representatives of the States at their first interviews with the Mission.

Various discussions 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 May 16^th 1946 (but, published on May 22^nd 1946), which looked to create a united dominion of India as a loose confederation of provinces. The provisions regarding Indian (princely) States specified:

“After transfer of power to the British Indian Provinces, Great Britain would neither retain paramountcy over the Indian States itself nor transfer it to the new Government of British India. It was however hoped that the States would negotiate their way in the Union Government.”

Interestingly, the Hon’ble Judges while taking due cognizance of the first part of the provision, deemed it unnecessary to either (a) consider the part that talks about (princely) States negotiating “their way in the Union Government”; or, (b) mention the fact that retention of paramountcy and attainment of independence by the states was never envisaged.”  

Regardless, both the Indian National Congress and the Muslim League rejected this May 16^th, 1946 proposal.

The Mission then proposed an alternative plan on 16^th June 1946, wherein the idea of partition was mooted. The Congress Party rejected this plan too was rejected. The Muslim League, which had initially accorded its acceptance, in its later resolution of July 29, 1946 withdrew its acceptance.

However, Lord Listowel, the Secretary of State for India, in his address to the House of Lords on the Indian Independence Bill, 1947, explained the operational aspects of independence on 16th July 1947 as follows:

“From that moment the appointments and functions of the Crown Representative and his officers will terminate and the States will be the masters of their own fate. They will then be entirely free to choose whether to associate with one or other of the Dominion Governments or to stand alone and His Majesty's Government will not use the slightest pressure to influence their momentous and voluntary decision. But I think it can hardly be doubted that it would be in the best interests of their own people, and of India as a whole, that in the fullness of time all the States should find their appropriate place within one or other of the new Dominions. It would be a tragedy for India, if the States were not to enrich the Motherland to which they belong with the martial valour for which they are renowned, and which they have displayed so gallantly in two world wars, with the tradition of service that animates their rules, and with the advanced social institutions that some of them possess.”

Then, again the Viceroy and Governor General of India and representative of the British Crown of erstwhile India, Lord Mountbatten, during his speech to the Chamber of Princes on July 25, 1947 affirmed that the Indian Independence Act, 1947, (which was enacted by the British Parliament on 18^th July, 1947) had released “the States from all their obligations to the Crown." He said that they were technically independent, or, put another way, rudderless, on their own. The old links were broken, but "if nothing can be put in its place, only chaos can result— a chaos that "will hit the States first". He advised them therefore to forge relations with the new nation closest to them. As he put it bluntly, "you cannot run away from the Dominion Government which is your neighbour any more than you can run away from the subjects for whose welfare you are responsible".

In short, he told the rulers of the erstwhile princely states that in the circumstances it was best they make peace and sign the Instrument of Accession.

Thus, it is clear that the “attainment of independent statehood” was only a theoretical possibility. In reality, statehood was neither contemplated for nor offered to the princely states, regardless of how one interprets the memoranda, reports, statements, etc., of the Cabinet Mission and other functionaries of the British Crown. And, since the INC and ML rejected the proposals, any tacit understanding to the contrary between the Cabinet Mission and the Chancellor of the Chamber of Princes was non-binding. They were, at best, sincere assurances and, at worst, empty promises of the Cabinet Mission. Historical evidence stands testament to the fact that not even one of the princely states eventually became an independent, sovereign State.

Limited Sovereign Powers at the Stroke of Midnight

2.       In Para 17 of the judgment, the Hon’ble Judges have put on record that:

“The Ruler of an Indian Princely State having regained absolute sovereignty on the lapse of Paramountcy and end of its Treaty obligations towards Imperial power, got power to decide future of his State including an option to accede to either of the two Dominions India or Pakistan in accordance with Cabinet Mission Memorandum 1946, Statements of June 3, July 25, 1947 and the Indian Independence Act, 1947.”

I have already talked about the fallacies of using the Cabinet Mission Memorandum to either logically validate or legitimately justify the attainment of absolute sovereignty by princely States on the lapse of British paramountcy. Statements of the Governor General and the representative of the British Crown in India, Lord Mountbatten, too have no legal standing or evidentiary value.

One would have to exclusively scrutinise the Indian Independence Act, 1947 and the provisions thereunder to interpret the powers that devolved on the princely states post independence. It is a fact that the Indian Independence Act provides for the creation of only two dominions, viz., India and Pakistan [S. 1 and S. 2(4)]. No explicit provisions exist that support the view that princely States were accorded absolute sovereignty, for, had that been the case, then:

1.       S.1 of the Indian Independence Act would have referred to “British India” and not “India”. The General Clauses Act, 1897 makes it amply clear that the latter term was used synonymously with British Raj, which included the territory directly administered by Britain (and hence referred to as “British India”) as well as the princely states ruled by individual rulers under the paramountcy of the British Crown.

2.       S.8 of the Indian Independence Act would have provided suitably for a Constituent Assembly without representation from some (if not all) of the princely states, which chose, by virtue to having absolute sovereignty, to attain statehood by refusing to execute the Instrument of Accession.

3.       S.9 of the Indian Independence Act would have excluded application of the Government of India Act, 1935, either through provisions within the Act or by order of the Governor-General to make such provision for excluding such application to the princely states, either specifically or otherwise, which chose not to execute the Instrument of Accession.

Then again, the Government of India Act, 1935─ which despite never being fully implemented, 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?

Object of Accession

3.       In Para 20 of the judgment, the Learned Judges have recounted that:

“The immediate object of accession, unlike other Princely States...was to make possible and legitimize deployment of troops of Indian Army to the State...”

The object of the accession, notwithstanding its extent of proximity, 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. Thus, when the Instrument of Accession was executed by the ruler of the princely State of Jammu and Kashmir, who, as per the observations of the Judges in the preceding parts of the Judgment, enjoyed absolute sovereignty over the State.

Given the prevailing, exigent circumstances, the Maharaja made a choice out of his own volition. There was neither coercion nor undue influence exercised by the Government of India to compel him into signing the Instrument of Accession. Consequently, the validity or legitimacy of the Instrument can hardly be called to question.

Instrument of Accession

4.       In Para 21 of the judgment, the Learned Judges go on to mention:

“Though the Instrument of Accession signed by the Ruler of the State was similar to such Instruments signed by Rulers of other Princely States..., yet the attending circumstances of the signing of Instrument of Accession and its acceptance, sufficiently indicate that contemporaneously with the signing of the Instrument of Accession, a Constitutional framework was conceived where under the State unlike other States that acceded to Dominion of India, was to enjoy a special constitutional status.”

Indeed, it is ironical that the Hon’ble High Court has concluded that a “...constitutional framework was conceived where under the State...was to enjoy a special constitutional status” without relying on any evidence in support of such inference. The Instrument of Accession was exactly the same as what about 500 other princely states executed (Pg. 56 of Justice A.S. Anand’s book titled “The Constitution of Jammu & Kashmir: Its Development& Comments”).

The correspondence exchanged between Lord Mountbatten and Maharaja Hari Singh shows no traces of any such overt or covert commitment to any “special constitutional status,” except for the “wish” of Lord Mountbatten’s government that “as soon as law and order have been restored in Kashmir and her soil cleared of the invader the question of the State’s accession should be settled by a reference to the people.”

To begin with, that was a “wish”, which under any and all tenets of jurisprudence is not tantamount to a contractual promise, or obligation, or commitment for according any “special constitutional status”. That “wish” was subject to the “restoration of law and order” in Kashmir and the “clearance of her soil of the invader.” The later, as we all know has not been achieved yet. Furthermore, that “wish” or “desire” was extinguished once Lord Mountbatten’s government was replaced by C. Rajagopalachari’s government.

The Learned Judges have also held that the condition mentioned in Para 4 of the Instrument of Accession confers special privileges on the State. The relevant Para 4 of the boilerplate Instrument reads: “―4. I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor-General and the Ruler of this State whereby any functions in relation to the administration in this State of any law of the Dominion Legislature shall be exercised by the Ruler of this State, then any such agreement shall be deemed to form part of this Instrument and shall be construed and have effect accordingly.”

The fact remains that no agreement was subsequently made between the Governor-General and the Ruler of the State of Jammu and Kashmir. Hence, the Para merits neither further mention nor extra attention in the context of any assessment of whether any special status was conferred on the State of Jammu and Kashmir.

The same argument of “special status” is applied to Para 7 of the Instrument of Accession, which reads as follows: “7. Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangement with the Government of India under any such future constitution.”

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.

Temporary Provisions for Jammu & Kashmir

5.       Further, the Hon’ble Court goes on to cite In Para 21 that:

“...the State was to stand on a different pedestal and to be given distinct and different status as regards constitutional powers, it was to enjoy after accession.”

The Judges have selectively quoted statements of Shri. N. Gopalaswami Ayyangar, who identified eight special circumstances while introducing the Draft Clause 306A (corresponding to Article 370 in the Constitution of India), to support their views on special status for J&K.

A comprehensive review of the transcripts of the Constituent Assembly proceedings show that Shri. Ayyangar referred to Draft Clause 306A 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 Jammu & Kashmir. 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.

Needless to say, the Learned Judges have based their assertions on completely fallacious statements and lopsided arguments, ill-founded on fact; unfounded in law, and, ill-conceived in logic.

The Judges also aver that the Dominion of India had decided to treat the State differently and not at par with other States because “the [decision] to accept the Constitution (of India)...in its entirety to their States...was not taken by the Ruler of the State.” This convoluted rationale does not hold up against the fact that the four representatives of the State of Jammu and Kashmir in the Constituent Assembly of India unequivocally and unconditionally accepted and adopted the Constitution of India. Thus, through that act, the Ruler of Jammu & Kashmir, Maharaja Hari Singh bestowed his allegiance to the sovereignty of India and the supremacy of its Constitution.

State of Jammu and Kashmir: Equal or Unequal

6.       Then again, the Judges tenuously attempt to prove the special status of Jammu and Kashmir in Para 21 by reiterating that:

(iii) The Ruler a few months after signing of the Instrument of Accession, in the Declaration of 5th March, 1948 announced his resolve to constitute a National Assembly to frame Constitution for the State.

(iv) The State did not adopt Government of India Act, 1935 or the Constitution for the intervening period till Constituent Assembly was convened, Constitution framed and adopted, but decided to adopt and abide by Jammu and Kashmir Constitution Act, 1939.

This misconception of “special status” is repeated in paras 24, 25, 26 and elsewhere. The attempt is to imply that the State's accession is somehow unique.

As a matter fact, during the intervening, transitional period between gaining of independence and the coming into force of the Constitution, i.e., between August 15, 1947 and January 26, 1950, the Government of India Act, 1950 was the constitutional framework of India. Section 2(1) of the Act makes it clear that 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. The Maharaja of Mysore too had signed the Instrument of Accession with the Dominion of India, whereby, on all subjects, except foreign affairs, defence and communication, the state had absolute power to administer. Indeed, Mysore too convened a Constituent Assembly of its own to frame a Constitution. The members of the Constituent Assembly were elected by the old limited franchise during the elections held in February, 1948. But, it was felt that a separate Constitution for Mysore State was redundant. So, in November 1949 it was announced that on 26^th January 1950, when India’s new Constitution would come into effect, the old Representative Assembly and the Legislative Council in Mysore State would be abolished and Mysore’s Constituent Assembly would become the main legislative body.

Thus, 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.

Origin of Article 370

7.       In Para 23, the esteemed Judges look to imply that Article 370, with “its roots in paras 4 and 7 of the Instrument of Accession...provided for the convening of a Constituent Assembly to frame the Constitution of the State.”

This again is either a misrepresentation or misunderstanding of facts borne out of inadequate historical research. Like I have already mentioned, other states too (case in point, Mysore) had convened Constituent Assemblies 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.

Article 370: The Link Between State of J&K and India

8.       The revered Judges then observe in Para 25 that:

“Article 370 is the only provision of the Constitution that applies to the State, on its own... [besides] Article 1 made applicable by sub clause (c) clause (1) Article 370. The Constituent Assembly (of Jammu and Kashmir) in terms of proviso to Clause (3) Article 370 is conferred power to recommend to the President that Article 370 be declared to cease to be operative or operate only with the exceptions and modifications mentioned in the recommendation, if any so made. It is only on such recommendations that the President in terms of Clause (3) Article 370 of the Constitution may, by public notification, declare that Article 370 shall cease to be operative or shall be operative only with such exceptions and modifications and from such date, specified in the notification. The Constituent Assembly did not make such a recommendation before its dissolution on January 25th, 1957. Resultantly, Article 370, notwithstanding its title showing it a "temporary provision" is a permanent provision of the Constitution. It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available.”

The juristic rationale above is weak and flawed, to say the least, for the following reasons:

1.       The political doyens, legal luminaries, social activists, cultural stalwarts and other representatives who entered the Constituent Assembly of Jammu and Kashmir were all very erudite, experienced and accomplished people. They all had the confidence of the people of J&K reposed in them.

2.       In such a scenario, it is a safe assumption that they knew that no Constitution is a rigid, static document; but a dynamic, constantly-evolving legislative framework, which binds people together.

3.       Had the Constituent Assembly of J&K (CAJK) felt that the provision of Article 370 was permanent and that it envisaged an ongoing role for the Assembly, then they surely would never have disbanded themselves.

4.       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.

5.       Finally, as we all know, the Supreme Court of India has not included Article 370 as being an integral part of the Basic Structure, which implies that the provisions can be amended and even abrogated, provided such amendment or abrogation is not ultra vires the Constitution

6.       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 because of a technicality?

7.       Indeed, it is not morally, legally or constitutionally valid to impose fetters on parliamentary power conferred by the Constitution of India only because of an act of omission of a subordinate body set up under that same Constitution, the grundnorm of the land.

Thus, the views of the scholarly judges of the Hon’ble High Court of Jammu & Kashmir, with regard to the perpetuation of Article 370, are such that in the constitutional schema, it is akin to the tail wagging the dog. The point is that the Union cannot be denied the exercise of its sovereign powers because of a procedural lapse by the Constituent Assembly of Jammu and Kashmir.

Impact of Article 35A

9.       Next, the Hon’ble Judges have maintained in Para 27 that:

“The Article 35A gives protection to existing laws in force in the State and to any law enacted after 1954 by the State legislature, defining the classes of persons treated as permanent residents of the State, conferring on permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects employment in the State Government, acquisition of immovable property in the State, settlement in the State or right to scholarship and other aids granted by the State.”

It is surprising that the Judges hold such an opinion about Article 35A, which essentially is the result of the Executive usurping powers of the Legislative. Regardless, the fact of the matter is that Article 35A has derogated and diminished the rights, some fundamental, others constitutional, of the people of Jammu and Kashmir. A few of such curbs and curtailment pertain to rights of other backward castes; women’s inheritance rights; right to education; etc.

I will dwell deeper on this issue of impact of Article 35A on the rights of the people of Jammu and Kashmir in a separate article.

Unbridled Presidential Powers

10.   In Para 36, the Judges have concluded that:

”...the President under Article 370(1) is conferred with power to extend any provision of the Constitution to the State with such exceptions and modifications‖ as the President may deem fit subject to consultation or concurrence with the State Government and that such power would include one to amend or alter the provision to be applied, delete or omit part of it, or make additions to the Provisions proposed to be applied to the State.”

Clearly, entrusting the President with such sweeping powers, in contravention of all accepted norms of creating checks and balances within government through the “separation of powers” among the branches of the state, is a mockery of the founding principles of a democratic republic. Be as it may, the risk of vesting the President with such extensive discretionary power is that the political discourse for the State could be easily hijacked, more so if it were a weak or ineffective President. Worse, it could lead to an autocratic or authoritarian regime in the State of Jammu and Kashmir.

Further, as has been held by the Apex Court in the Puranlal Lakhanpal case (AIR 1961 SC 1519), which the Judges have also cited: “...the object behind enacting Article 370 (1) was to recognise the special position of the State of Jammu and Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify.”

So then, while admitting that Article 370 recognises the special position of the State of Jammu and Kashmir, as held in the Puranlal Lakhanpal judgment, it is pertinent to note that no judgment of that Supreme Court has concurred with the view that Article 370 is a permanent feature of the Constitution of India. 

Indeed, 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 serves neither the interests of the State of Jammu & Kashmir nor the Union of India.

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 suppressio veri, suggestio falsi.

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

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

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

Terms of Accession

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

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

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

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

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

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

No Special Provisions

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

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

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

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

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

Post-Accession Discretionary Powers of the Maharaja

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

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

Similarly, Clause 8 of the Instrument stipulated:

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

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

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

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

Fallout of the Instrument of Accession

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

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

Powers of Maharaja Hari Singh after Instrument of Accession

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

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

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

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

Post-Accession Proclamations of Maharaja Hari Singh

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

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

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

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

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

Representation in the Constituent Assembly of India

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

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

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

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

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

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

Constitution (Application to Jammu and Kashmir) Order of 1950

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

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

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

Proclamation of Yuvraj Karan Singh

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

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

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

The Delhi Agreement, 1952

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

Accordingly, the Union Government consented to:

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

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

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

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

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

Formulation of Constitutional Relations

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

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

Constitution (Application to Jammu and Kashmir) Order of 1954

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

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

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

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

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

Constitution of Jammu and Kashmir, 1957

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

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

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

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

Concluding remarks

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

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

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

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

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

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

Therefore, I am compelled to rhetorically pose: 

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

Any answers?