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 15th 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 16th
1946 (but, published on May 22nd 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 16th, 1946 proposal.
The Mission then proposed an alternative plan on
16th 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 18th 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 26th 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.
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