GOVERNMENT CONTROL OF HINDU TEMPLES IS ILLEGAL…AND DRACONIAN

The Emergency of 1975-77 was perhaps the darkest period in the post-independence history of India. The government’s clampdown on civil liberties and widespread abuse of human rights posed a serious challenge to the democratic values enshrined in the fabric of our Constitution.

Using its unfettered powers and a brute majority in Parliament, the Central Government headed by Smt. Indira Gandhi passed the 42^nd Amendment, which changed the perambulatory description of India from “sovereign democratic republic” to “sovereign, socialist, secular democratic republic”. The eminent jurist and constitutional expert, H.M. Seervai, severely criticised this ambiguous amendment inserted arbitrarily. However, the amendment survived judicial challenge and the term “secular” has since become an integral part of the Preamble.   

European Concept of “Secularism”

Many priests challenged the authority of the papacy in the 16^th Century. In his “Two-Governments Doctrine”, Martin Luther enunciated that the church should not exercise ‘worldly government’. The English philosopher, John Locke too argued that the state lacked authority in the realm of individual conscience. During the ‘Age of Reason’, Voltaire and other writers stressed anti-clericalism, which gained momentum in the French Revolution. This led to the concept of separating church from state. George Holyoake coined the term “secularism” in the 1850s to refer to such segregation.

Secularism, contrary to popular misconception in India, is not the opposite of communalism. Conceptually it entails indifference, perhaps even contemptuous irreverence, to religion in the affairs of the State. It requires government to exclude religion from its functions. But, in India the term has been misappropriated to justify the appeasement of religious minorities. The mollycoddling often disregards the sentiments of those affiliated to the majority religion. This insensitivity is most apparently manifest in state governments that are deeply entrenched in the administration ad infinitum of over 4 lakh Hindu temples within the country.

Indeed a complete mockery of the secular credentials enshrined in the Constitution!

Government Control of Hindu Temples

A Hindu temple is a space designed to bring devotees nearer to the Divine. Consecrated as the dwelling of the presiding God or deity, it is a place for prayer, worship, reverence and supplication to divinity. The structure of the temple is typically used for symbolic expression of the ideas and beliefs of Hinduism. The adoration of the deity gives Hindus solace and satisfaction.

Inscriptions and pillar edicts prove that Hindu temples also functioned as centres of community celebrations and training in fine arts, performing arts and architecture. Thus, temples not only provided spiritual succor to devotees, but also functioned as hubs of social, beneficent, charitable, cultural, educational and economic activity. They even served as forums for dispute resolution and dispensation of justice. In ancient times religious and charitable institutions were under the special protection of the ruling authority. The King, as the sovereign head of his state, discharged the duty of protecting temples and intervened as an arbiter in disputes.

In modern India, the Constitution provides for regulation and restriction of “any economic, financial, political or other secular activity associated with religious practice.” This empowers government to institute regulatory measures for protecting interests of devotees, safeguarding temple assets, and intervening in the event of mismanagement.

Evidence, however, shows a brazen abdication of these duties, not to mention the refusal to abdicate control over temple affairs. The reluctance forced the Supreme Court to observe in its landmark Chidambaram Temple judgment:

“Even if the management of a temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution… Supersession of rights of administration cannot be of a permanent enduring nature. Its life has to be reasonably fixed so as to be co-terminus with the removal of the consequences of maladministration… Power to regulate does not mean power to supersede the administration for indefinite period.”

The questions that beg to be asked then are: What happens if government relinquishes control over its temples? Who does the power to govern temples devolve onto? What safeguard and regulatory mechanisms are necessary for ensuring good governance?

Autonomous Temple Administration

A consensus no doubt exists over the need for government to end its involvement in the day-to-day affairs of temples. This is possible only if legislation enables the state to prevent mischief by functionaries, misappropriation of funds and mismanagement of affairs of temples. The law must also provide for timely intervention and time-bound exit of government from temples after irregularities or illegalities have been remedied.

Diversity within Hinduism— a large pantheon of Gods, besides multitude of sects and multiplicity of customs, beliefs, rituals, practices and worship forms— poses serious challenges to the enactment of any umbrella legislation. Imposing any diktat-driven, monolithic command-and-control forms of temple administration impractical.

Central Legislation: Need of the Hour

Hindu temples must reflect the ethos of Bharat and become cornerstones of a vibrant, progressive and resurgent nation, which is proud of its heritage, traditions and cultural roots. Temples can help people aspire for higher quality-of-life and inspire the pursuit of ‘dhārmic’ living. With appropriate societal interfaces temples can be transformed into hubs of socio-cultural activity.

Revitalising the temple ecosystem though calls for a decentralised system that entails rigorous regulatory oversight, while conferring autonomy in all operational matters, religious or otherwise. A robust system can ensure: (a) full withdrawal of state control over temples; (b) smooth transition of power to local communities; and, (c) effective and transparent administration of our holy shrines.

While rigid policy and compliance parameters may be imposed, temple administration mechanisms must be flexible. A phased transition approach can be framed for the transfer of management to local communities and mațhās based on sampradāyas.

If a “from-the-frying-pan-into-the-fire” scenario is to be avoided, a central comprehensive enactment for the regulation of Hindu temples is sine qua non. Indeed, we, the people of secular India, have a constitutional duty to ensure that the government is kept out of Hindu religious affairs!

MUCH ADO ABOUT A FLAG?

"Is there any provision in the Constitution that prohibits a state from having a flag?” Sri. Siddaramaiah, Chief Minister of Karnataka is supposed to have asked.

The Chief Minister was indeed right is posing that question rhetorically. Strictly speaking, there is no reference to the issue of “State Flags”. It is just that he forgot that there is neither “any provision in the Constitution that permits a state to have a flag”.

So then, if the Constitution makes no express provision, can a State Government assume that it has the sanction/authority to declare a State flag?

The one-word, emphatic answer is: No!

Here’s why.

Constitutional Provisions and Interpretation

Firstly, let us start with the relevant portion of the only Article in the main Parts of the Constitution of India, namely, Article 51A that talks about "flags". It states:

51A. It shall be the duty of every citizen of India—

(a)   to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b)   …

A plain reading of this provision would make it clear that had the legislative intent been to endow various States with the power/authority to have “State Flags” and “State Anthems”, it would have surely mentioned it expressly in the list of “fundamental duties”. It is indeed inconceivable that Parliament, in its collective wisdom, would have, by implication, declared either that respecting State flags and anthems was not a duty of every citizen or that disrespecting the same was acceptable/permissible constitutionally. 

Further, “expressio unius est exclusio alterius” is a well-known Latin maxim, which is a principle used in statutory construction. It means: “when one or more things of a class are expressly mentioned, others of the same class are excluded.” If “national and state flags and anthems” are considered as a class, then the exclusion of “state flags and anthems” from Article 51A clearly indicates that our law-makers never envisaged a scenario of states having official flags and anthems.

Indeed, a US Court, elaborating on “silence in statutory enactments” of Congress, aptly summarised as follows:

“…not every silence is pregnant. In some cases, Congress intends silence to rule out a particular statutory application, while in others Congress’ silence signifies merely an expectation that nothing more need be said in order to effectuate the relevant legislative objective. In still other instances, silence may reflect the fact that Congress has not considered an issue at all…”

Thus, the "silence" of our parliamentarians in Article 51A, ‘intentional’ or otherwise, can be only interpreted to imply states are either not to have or not expected to have their own “State flags and anthems”.

Further, if “rule of law” and “paramountcy of the Constitution” are to be upheld, interpretation of statute has to be strict and literal, particularly with regards to matters concerning our nationhood and national “unity and integrity”.

“Division of Powers”

Secondly, none of the lists, in the Seventh Schedule under Article 246– namely, the Union, State and Concurrent Lists– in the constitutional scheme of “Division of Powers between the Union and States”, makes reference to the vesting of law-making powers for flags. Yet, Item 97 of the Union List, expressly empowers the Union to make laws on “any other matter not enumerated in List II or List III…” i.e., the State and Concurrent Lists respectively.

Therefore, all “residual powers” under the Constitution lie with the Union, one of the reasons [which have been detailed in an earlier blog-post] why India is held to be “a unitary state with federal characteristics.”

What is in a flag?

Thirdly, some argue that since many social, religious, cultural and educational organisations are allowed to have their own flags, it is kosher for states too to have flags as a symbol of cultural and linguistic pride.

The analogy is flawed and untenable in more ways than one. To begin with, private outfits with flags are neither public agencies/entities nor constitutional bodies/authorities. On top, they are not funded by the state exchequer; neither are they part of government. Besides, flags of these private organisations do not get unfurled and hoisted at official events and functions.

Finally, others argue: “There is already a flag that is waved during Kannada Rajyotsava celebrations. So, what is the big deal if there is an official state flag?”

True. But then, hoisting the informal “red-yellow” Kannada flag on government premises is not mandatory. An official flag would have to be necessarily hoisted during official events and government functions. Other states too may want to designate official flags, which would raise questions about protocol to be followed.

And what if bigots and fringe elements in one state are tempted into burning flags of other states during protests and agitations? With law and order being a state subject, would showing disrespect to the flag of another state be permitted and held to be not an offence?

Given the inherent complexities, the official adoption of state flags would require an overarching law to be enacted at the centre. If our state government is so desperate to designate an official flag, then, it must necessarily seek to have Article 51A (if not the Seventh Schedule) of the Constitution amended by the Union.

Clearly, the idea of "official state flags" needs to be thought through thoroughly. There is the additional risk of linguistic and regional polarisation and divisiveness in the country arising out of any such move. A hasty decision can only hurt and haunt us in the future.

Closing Remarks

My grouse though against this move, divisive and dubious, if not devious, is as follows:

If successive state governments never felt it necessary to have a flag to further Kannada pride or cultural identity all these years, why is the issue being raked up now?

What added advantage does an “official flag” bring to us that the existing “unofficial flag” does not?

Is an official flag the only way to express linguistic pride and fervor?

Well, I do not think so. 

Why Religious Institutions Should be Wary of the Gold Monetisation Scheme

The draft “Gold Monetisation Scheme”, announced by the Finance Ministry, is aimed at mobilizing gold holdings of households and institutions. The objective is to productively deploy hitherto idle, privately-held gold assets and valuables. In an earlier post, I had pointed out twenty grey areas in the draft scheme. Despite quite a few lacunae and loopholes, it is undeniable that the scheme makes tremendous economic sense. Gold monetisation will reduce the import burden and drive economic growth.
 
Religious endowments and charitable institutions― regardless of denomination― do come under the ambit of the scheme. Religious trusts and charities can open gold deposit accounts and earn interest under the scheme. The gold offerings of devotees so monetized will help in the nation building process.
 
So then, should our temples, mosques and churches look to monetize gold jewelry, artifacts, ornaments and other movable properties? What are the legal, political and constitutional ramifications of utilising such valuables for productive purposes?
 
I will look to answer the questions from the perspective of Hindu temples and then generalise.

Religious Activities under the Constitution

As is well known, India is a sovereign democratic republic that adheres to socialist and secular principles. With socialism ingrained in the Constitution, India― a welfare state― is duty-bound to disperse benefits and burdens equitably in society. The Supreme Court has held in the D.S. Nakara case (AIR 1983 SC 130) that the basic framework of socialism is to "...eliminate inequality of income, status and standard of life," and "to end poverty, ignorance, disease and inequality of opportunity." Hence, the socialistic tenets enshrined in the Constitution encourage the monetisation of not just gold, but all assets (including land and buildings) that religious entities and establishments own and possess.
 
In an earlier post, I had elaborated on the connotation of secularism under the Indian Constitution. Secularism― a basic feature of the Constitution, as held in the Kesavananda Bharti case (AIR 1973 SC 146)― is essentially the separation of state from religion. In other words, the state has no religion; it can neither get involved in religious affairs nor interfere with religious freedom. Therefore, any attempt or opportunity for monetising assets and properties cannot be confined to a particular sect, class, religion or community.
 
As is well known, sovereignty is about the supreme power of law-making. While recognizing that the State cannot intervene in religious matters of its citizens, the Constitution does confer wide legislative powers on the State. Surely there can be no State within a State. Consequently, it is constitutionally valid for the secular Indian State to regulate religious activities. The neutrality of the State towards religion though cannot be violated― as held in the SR Bommai case (AIR 1994 SC 1918). Neutrality would clearly imply that the State cannot do anything which discriminates in favour of or against a particular religion. Any such discrimination would infringe upon Article 25(1), which bestows the fundamental right to ‘freely practise, profess and propagate religion’, when read with the rights to ‘equality before the law and equal protection of the laws’ under Article 14 of the Constitution.
 
The Constitution originally provided for the fundamental right to property under Article 31, which was repealed and made a constitutional right under Article 300-A. Such power of government to take private property for public use is enjoyed by the State under the Doctrine of Eminent Domain. Surely the hand that giveth can be hand that taketh too.
 

Legal Aspects of Property Belonging to Religious Entities

A religious endowment is a dedication of property, which has for its object, establishment, maintenance or worship of an idol, deity or any other object or purpose subservient to religion. The Supreme Court has held in the Yogendra Nath Naskar case (AIR 1969 SC 1089) that the Hindu idol is “a juristic entity capable of holding property and of being taxed through its shebaits who are entrusted with the possession and management of its property...the deity stands as the representative and symbol of the particular purpose...it can figure as a legal person and... the dedicated property vests in it.”
 
Any property gifted, offered or bequeathed to a deity vests in that deity; all such property offered to a deity is irrevocable. Any mahant, shebait, dharmakarta, muttwalli, muntazim or mathadipati looking after the affairs of the endowment enjoys limited powers of alienation. The status of such religious trusteeship is similar to that of a manager or guardian of an infant heir. Hence, the property vested in a Hindu deity or idol is inalienable, except in cases of unavoidable necessity and absolute exigency. Put differently, the power of alienation must be exercised for purposes of defence and not of aggrandizement.
 
Any devotee or worshiper who makes an offering to the deity of a temple does so as an expression of the right to practise, profess and propagate religion under Article 25. The purpose of the offering is religious in nature. The administrators of and the performers of worship (e.g., archakas, pujaris, purohits, etc.) at the temple are in a position of trust. They have a fiduciary responsibility and are duty bound to utilise the offerings made and properties bequeathed by devotees for propagation of the faith that the deity represents, besides the denomination of Hinduism that the deity is belongs to. This obligation applies even in cases where the temple is administered by government under appropriate enactments.
 
Some specific nuances or variations notwithstanding, the above legal ties or bonds― connecting a devotee and his offerings with the religious purpose and the beneficiary of his devotion― apply universally regardless of the deity, divinity or denomination. Any legislative attempt to alter this sacred relationship between the divine and the devoted violates the Constitution of India.
 

Religious Gold Monetisation

How does all this translate in the context of gold monetisation?
 
Well, any religious institution― Hindu or otherwise― has no legal impediments per se with regard to the deposit of temple gold under the Gold Monetisation Scheme, provided there is no alienation of such deposited gold. Yet, participation in the scheme has to be voluntary and subject entirely or exclusively to the discretion of the trustees, administrators or religious heads of the entities and endowments. The usufructs of the deposit though should be used ONLY for the purpose for which the religious institution exists. 

Nevertheless, foolproof measures must be in place to ensure the safety, sanctity and security of the gold deposited is not compromised. Suitable mechanisms must also be worked into the initiative to ensure that ancient coins and antique jewelry are not deposited, for such artifacts are likely to be priceless as collector items. Their market prices are typically much higher than the equivalent gold value.
 
A guarantee, sovereign or otherwise, is necessarily needed too to ensure that the gold so deposited neither depreciates in value nor gets diminished in purity or quantity. Besides, adequate deposit insurance against all risks (including, but not limited to, insolvency of banks, fluctuations of gold prices, etc.) must be provided for all gold deposits of religious institutions under the gold monetisation scheme.
 
Typical contractual clauses that restrict liability of banks towards the deposits, such as force majeure, must be waived under the gold deposit scheme. The scheme has to be made suitably watertight to protect deposits against losses and safeguard the interests of religious institutions.
 

Conclusions

Monetisation of gold of religious establishments not only has legal angles to it, but also entails deeply emotional elements. Hence, there is a need for complete openness and transparency. The Reserve Bank of India has to make public the contractual terms under which religious institutions would be required to deposit gold.
 
Religious entities under government control, such as those administered by the Endowments Department, must necessarily notify / publicly announce the details of all endeavours to deposit gold. Gold articles and artifacts that government-managed religious institutions plan to deposit with banks must be subject to public scrutiny. As a general rule, no gold item dating back more than 25 years should be accepted in deposit, because all articles get melted and converted to bullion. 
 
It must be remembered that all gold belonging to religious institutions is sacred. The title and ownership of the gold vests in the deity or divine embodiment/manifestation, which is the beneficiary of the offering made. Hence, the government has an obligation to ensure that there are appropriate checks and balances introduced in the scheme to eliminate loot of the wealth by fraudsters and scamsters.
 
Forewarned is forearmed! Indeed, we need to be extra vigilant with regards to any and every attempt to monetize any of the "divine gold".

What Exactly is the Indian Brand of Secularism?

Ever since our Constitution was adopted and we became a nation, much has been said and written about the secular fabric of India. Copious ink has flowed, many pages filled to espouse and reiterate our secular credentials ad nauseam. In fact, few television debates are complete these days without references to secularism. Autocratic, narcissistic hosts, anchors and editors of news shows shrilly cry themselves hoarse lecturing the people of this country about the need for safeguarding our secular ethos. Their acerbic polemics is often repulsive!

So, what exactly is secularism? Here's a look.

Literal Meaning of Secularism

Secularism is essentially a European concept. Contrary to popular misconception in India, secularism is not the opposite of communalism. The Merriam-Webster dictionary defines the latter as “loyalty to a socio-political grouping based on religious or ethnic affiliation”. 

According to the same dictionary, the word secular means, “of or relating to the worldly or temporal”. It implies opposition to holy, spiritual, religious, or ecclesiastical things and beliefs.

 

Historical Origin of the Concept

Its etymological origin can perhaps be traced to the birth of Christianity. After Jesus’ crucifixion and resurrection, Christianity was spread through his disciples. Despite persecution during those 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.

Now, a fundamental dogma of Christianity is that humans are born in sin, which dates back to mythical Adam and Eve, who committed 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 a 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.

Today, most western democracies are ‘secular’, i.e. 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.

Islam and Secularism

The “Hadith” in Muslim religious use is often translated as "prophetic traditions"; it refers to the corpus of reports of the deeds, sayings and teachings of Prophet Muhammad. The Hadith literature was compiled from oral reports that were in circulation in society after the death of the Prophet. The Hadith forms the basis of 'Shariah' Law, which deals with several topics including, crime, politics and economics.

Many Islamic scholars  believe that Islam fuses religion and politics, with normative political values determined by the divine texts. Many scholars denounce secularism as strictly prohibited in Islamic tradition. It is argued that modernist efforts at secularizing politics stems from ignorance, unbelief, apostasy and atheism.

Post World War II, secularism had wide currency in the Muslim world. However, the spread of Islamic revival made leaders, e.g., Hosni Mubarak of Egypt, more repressive and authoritarian in order to protect secularism. The ripple effect of repression was that Islamic society became opposed to secularism. Secularism is also associated with military regimes, such as those in Turkey and Algeria. Military forces in those countries could use their power in undemocratic ways in order to ‘protect secularism’. In some countries, the fear of Islamist takeover via democratic processes has led to authoritarian measures against Islamist political parties.

Yet, there are many Muslim-majority countries in Asia (e.g., Uzbekistan, Kazakhstan), Africa (Mali, Senegal), and Eastern Europe (Turkey, Albania) which are secular.

Secularism and Hinduism

The Hindu “varNa” system, i.e., social class system based on occupation, was inherently secular. So, "brahmaNa" was a distinct class from "kshatriya (i.e., ruler and warrior)". The former class included priests and preachers, while the latter were rulers and warriors.

Thus, separation of religion and rulership or governance was accomplished. Faith expressed itself freely in a multitude of ways. Furthermore, the dominant faith of the Indian people never had a central seat of power that dictated dogmas that conflicted with the sovereignty of the ruler.

The Indian Constitution and Secularism

The term “secular” appeared only once― under Article 25, Clause 2, sub-clause (a)― in the Constitution of India ratified and adopted by the Constituent Assembly of India in 1950.The term was subsequently added to the Preamble of the Constitution through the 42^nd Amendment to the Constitution. Hence the Preamble declares that India is constituted into a “Sovereign Socialist Secular Democratic Republic”. As an exception, the term “Secular” in our Preamble does not apply to the State of Jammu and Kashmir.

The term is not defined either in the Constitution or in any other statute or enactment. 

Nevertheless, “secularism” has been held― in the landmark Kesavananda Bharati Case― to be a key component of the basic of structure of the Constitution.

Despite the Constitution being secular, religion is an integral part of the Indian state. Special provisions and concessions for various religions and denominations of faith have been routinely made. Many government schemes and programmes are wholly and squarely in the realm of faith, belief and religion. In other words, the Indian State seems to practise a brand of secularism that is very different from that practised in the West. This is so manifest perhaps in our polity’s endeavour over the years to subserve liberty of thought, expression, belief, faith and worship enshrined in our Constitution.

So then, what exactly does “secularism” mean in India? The body of case law sheds tremendous light.

Interpretation of Secularism

In Perunchithiranar v. State of Tamil Nadu (AIR 1986 Mad 83), the Madras High Court observed that a secular state is “non-religious” and not “irreligious”. In the view of the Court, a secular state cannot have or show a lack of respect for religion. In other words, India, as a secular state has to show SENSITIVITY towards the sentiments of the religiously inclined.

The Supreme Court of India in SR Bommai v. Union of India (AIR 1994 SC 1918) observed that “...equal treatment of all religious groups...” is an essential part of secularism enshrined in our Constitution. Then again, in the Perunchithiranar case, the High Court of Tamil Nadu held that the government “should not be wedded or bound to any one religion, but should give equality of treatment to every religion practised in the country.” Indeed, secularism in India is based on the concept of EQUALITY of all religions.

In an interesting case that came up before the Andhra Pradesh High Court― that of Atheist Society of India v. Government of Andhra Pradesh (AIR 1992 AP 310),― it was held that secularism means “...a sense of basic fraternity, fellowship...among all the citizens”. Peaceful CO-EXISTENCE and CARE for each other is the essence of fraternity and fellowship.

In the Atheist Society of India case, it was further stated that secularism means “...a sense of...UNITY among all the citizens.” In the SR Bommai case too, the Apex Court held that the goal of secularism has been accepted because “it is our historical legacy and a need of our national unity and integrity but also as a creed of UNIVERSAL BROTHERHOOD and humanism.”  

Then again, in the Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra (AIR1975 SC 1788) judgment, the Supreme Court held that secularism is “a system of utilitarian ethics, seeking to maximise human happiness...”  Indeed, such a “system” can only be predicated upon the existence of a fabric of LOVE and compassion for each other within society.

The Hon’ble Supreme Court in the SR Bommai case asserted that “...religious tolerance... [is] an essential part of secularism enshrined in our Constitution.”  Of course, in a tolerant society there is ACCOMMODATION of all faiths, beliefs and religions with neither bigotry nor persecution.

Finally, in the State of Karnataka v. Dr. Praveen Bhai Thogadia [(2004) 4 SCC 684], the Supreme Court has held that the “State should have no religion of its own and no one could proclaim to make the State have one such or endeavor to create a theocratic state.”  This imposes a RESPONSIBILITY on the State to ensure that there is no dominant or privileged religion within its territory. That obligation implies that the state has not only to treat all religions with equal RESPECT, but also ensure there is RESPECT for all religions within society.

Concluding Remarks

The sum and substance of the foregoing case law research is that secularism the State will not associate itself directly with any religion.

However, in India the concept is much broader that the “separation of state and religion” envisaged in Europe. It entails the S-E-C-U-L-A-R tenets, namely: (a) SENSITIVITY towards diverse faiths; (b) EQUALITY of religions; (c) peaceful CO-EXISTENCE; (d) UNITY and UNIVERSAL BROTHERHOOD; (e) LOVE and compassion; (f) ACCOMMODATION of all faiths; and, (g) RESPONSIBILITY on the State to propagate RESPECT for all religions.

Indeed, given the expansive definition of secularism in India, public ridicule of somebody’s faith, belief or religion is taboo and intolerant. That philosophy stems from the sense that the Indian State accords a certain REVERENCE for religion. On the contrary, in the Europe, secularism conceptually entails INDIFFERENCE, perhaps even IRREVERENCE to religion in the affairs of the State.

In other words, while the secular Indian state is aware and COGNIZANT of the existence of religion; secular European states are intentionally INCOGNIZANT of religion in the public sphere.

SELF-DISCLOSURE: I am a Hindu by birth. At a primal, emotional level, I do practise rituals with devotion. At a spiritual and philosophical level, I firmly believe in the "एकं सद्विप्रा बहुधा वदन्ति (Truth is one, Sages describe it in various ways)" doctrine and the universality of the Supreme Truth. Hence, I have no qualms about invoking the blessings of the Divine regardless of religious denomination. But, at a logical and scientific level, I am a rationalist who has difficulty accepting blindly the existence of a Supreme Being. Overall though, I do consider “India” as my God; “Indianism” is my religion and the “Indian Constitution” as my sacred book. So then, depending on the context, I switch from reverence for a/all God(s) and belief in equality of all religions to equal contempt for them all. 

WTO's Agreement on Agriculture is Anti-Poor and Anti-Farmer

Recently I presented a research paper (available at the link here) at an International Conference on Agro Biodiversity and WTO. The paper explored the validity of objections of the International Community against India's National Food Security Act, 2013. It concluded that India should not succumb to international pressure and accept the terms in the Agreement of Agriculture (AOA). 

A brief summary of the paper is below.

The right to life (and dignity associated with it) is the most sacred of the fundamental rights bestowed upon people by the Constitution of India. In order to protect those rights, the Indian government has the duties of poverty eradication and hunger mitigation cast on it. These same rights are also incorporated in the Charter of United Nations and various other international covenants and declarations. 

Various food-grain procurement and distribution schemes of the government are aimed at safeguarding these rights. However, many other countries view these policies as trade distorting. Their contention is that the minimum support price mechanisms enable Indian farmers to undercut in international grain markets.  

That bogey of trade-distortion is an untenable argument. It is unfounded in reality. 

To begin with, any World Trade Organisation (WTO) measure under the Agreement of Agriculture (AOA) imposing restrictions on the supply of subsidized food-grains would grossly violate the constitutional rights of the people of India. Besides, it transgresses various provisions of international law under the United Nations too. Neither economic principles nor research findings support the imposition of such curbs.  

Hence, the Indian government must desist from accepting any restrictions on public intervention in the food-grain market and the maintenance of buffer-stocks. Perhaps the best and only solution is to treat minimum support prices (MSP), public-procurement, buffer-stocks and subsidies as Green Box measures, so long as food-grains procured under such government schemes are not internationally traded.

The Indian government must not succumb to international pressure and impose either curbs on the MSP mechanism or curtail the existing public distribution system (PDS).

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?