The Pre-Independence History and Geography of Jammu and Kashmir - A Legal Perspective

Despite seeming farfetched, the history and geography of Jammu and Kashmir are intricately intertwined in the lead-up to the Instrument of Accession. Hence, a clear understanding of the 'geo-historical' backdrop is a conditio sine qua non for any meaningful dialogue on the legality, and the morality too if you like, or otherwise of Article 370.

In this piece, I analyze the legal issues surrounding the geopolitical landscape of the State of Jammu and Kashmir, if only to debunk the absurd, unfounded claims and notions of some about the validity of its accession to India. Questions are often posed on even the terms of transfer of sovereignty to the ruler of the State during the British Raj.

'Confuse, if you cannot convince' is seemingly the modus operandi of some of these intellectuals and thought leaders. Nevertheless, they have sullied and muddied the waters so much that many wrongly believe that the accession of Jammu and Kashmir is somehow faulty and flawed.

So then, for starters, let me begin with a description of the geographic region subjected to the exposition herein. The erstwhile princely State of Jammu and Kashmir, which existed in India from 1846 to 1947 during British rule, consisted of the present-day Indian State of Jammu and Kashmir (inclusive of the Ladakh region); the territories of Azad Kashmir and Gilgit-Baltistan under Pakistani control currently; and, Aksai Chin, a part of the Xinjiang Autonomous Region, which is under Chinese administration now.

Brief History of the Region

Till 1846, the Jammu, Kashmir and Ladakh regions, of the modern-day Indian State of Jammu and Kashmir, were separate and distinct areas under different rulers.

Most historians trace the history of Kashmir to the third Century BC. During the second and third century BC, it was part of Emperors Asoka (of the Mauryan dynasty) and Kanishka's (of the Kushan dynasty) empires. Later, Kashmir became the target of several attacks and invasions. So, it was under the rule of several kings and dynastic rulers, including the White Huns (Hephtalite Empire), Karkotas, Utpalas, etc.

In the 14^th century AD, Shah Mir ascended the throne of Kashmir as its first Muslim Ruler. The Shah Mir dynasty ruled the region for a couple of centuries followed by the Chak dynasty.

Then in 1586 AD, the Mughal potentate, Emperor Akbar invaded and conquered the valley. Mughal rule of Kashmir lasted for over a century and half. The Nadir Shah invasion of India in 1738 AD weakened Mughal control over Kashmir.

Then in 1753 AD, a general of Ahmed Shah Abdali’s army conquered Kashmir, including the Gilgit-Baltistan region. This brought it under the rule of Afghan / Pathan governors, whom the Durranis of Kabul appointed. Finally in 1819 AD, Maharaja Ranjit Singh of Punjab invaded Kashmir and wrested it from the Pathans. For the next couple of decades, Governors appointed by the Sikh Durbar at Lahore ruled Kashmir.

Jammu: Around the time of the Afghan / Pathan rule of Kashmir, the Jammu region was under Ranjit Deo, a Dogra chief of Rajput descent. Ranjit Deo’s death in 1780 AD sparked a succession dispute among his three grand-nephews. The Sikh Durbar of Lahore exploited the situation by annexing Jammu and turning it into a dependency in 1808 AD.

Thus, the three grand-nephews of Ranjit Deo served under Maharaja Ranjit Singh of Lahore till about 1820 AD. Pleased with the services rendered, the Sikh Durbar conferred the hereditary title of Raja on the eldest brother, Gulab Singh. Many principalities within the Jammu region were awarded to the three brothers. Eventually, whole of Jammu fell into the hands of Raja Gulab Singh.

Ladakh: The Ladakh region, on the contrary, had been a part of Tibet for centuries. Suzerainty over the province frequently changed hands between Chinese and Tibetan rulers. Then in the 17^th century AD, King Bhagan reunited Ladakh and founded the Namgyal dynasty. Despite suffering a defeat at the hands of the Mughals, Ladakh retained its independence, albeit severely restricted.

Later, in 1834 AD, Raja Gulab Singh, the ruler of Jammu conquered all of the Ladakh and Baltistan regions. The map above shows the territories under Maharaja Ranjit Singh in 1838 AD. The Jammu, Kashmir and Ladakh regions, as can be seen, were a part of the Sikh empire at that time.

Creation of the Princely State of Jammu and Kashmir

In 1845, the First Anglo-Sikh war broke out between the Sikhs and the British at Sobraon in Taran-Taran District. Despite owing allegiance to the Sikhs and being asked to extend help, Raja Gulab Singh remained aloof. He avoided attacking the British under one pretext or the other. This earned him the gratitude of British diplomats.

The British eventually routed the Sikh Durbar. Raja Gulab Singh negotiated the terms for surrender of the Maharaja of Lahore. By the Treaty of Lahore of 1846, concluded between the British and Maharaja Dhuleep Singh of Lahore, the Sikhs transferred Kashmir besides the payment of a war indemnity to the British. 

Thus, the Sikh Durbar ceded (vide Article 4 of the said Treaty), to the “Honourable Company, in perpetual sovereignty, as equivalent of Rs.10 million, all its forts, territories, rights and interests in the hilly regions situated between Rivers Beas and Indus....”

The map below shows the Sikh territories after the Lahore Treaty and cession of Kashmir in 1946. 

By dint of Article 12 of the Treaty of Lahore, the Maharaja of Lahore also agreed to “...recognize independent sovereignty of Raja Gulab Singh, in such territories...as made over to the said Raja Gulab Singh, by separate Agreement between himself and the British Government...”

A week after the conclusion of the Treaty of Lahore, the British concluded the Treaty of Amritsar with Maharaja Gulab Singh. By Article I of that treaty, the British Government transferred and made over “for ever in independent possession to Maharaja Gulab Singh and the heirs male of his body...” all of Kashmir (as defined in Article IV of the Treaty of Lahore).

Thus, the princely State of Jammu and Kashmir attained sovereignty in 1846. The 1919 AD map of the State above shows the territories that belonged to the monarchic State.

The Acquisition of Sovereignty

Before examining the legal and moral issues encompassing Raja Gulab Singh’s ascent to the throne― and their impact on the accession of the erstwhile State of Jammu and Kashmir in 1948 to the Union of India― it is pertinent to summarize the international laws related to the acquisition of territorial sovereignty.

Many methods of acquisition of sovereignty are presently recognised under international law. Some were deemed lawful in the past. These methods include:

1. Accretion: it is the physical expansion of an existing territory through geological and other natural processes, such as alluvion (the deposit of sediment) or volcanism (i.e., eruption of a volcano).
2. Cession: The acquisition of sovereignty over territory through a transfer to it by another state is cession. Typically, cession is brought into effect through treaties (of cession or accession). Examples include the transfer of Hong Kong Island to United Kingdom under the Treaty of Nanking, 1842; the United States’ purchases of Alaska and the Louisiana territory through treaties with Russia (1867) and France (1803) respectively. Another example is the Convention of 1917 between the United States and Denmark for cession by transfer (i.e., sale / purchase) of the Danish West Indies (i.e., Virgin Islands). 
3. Conquest: It refers to acquisition of territory by way of force or through armed aggression. If such military intervention entails territorial cession, then there is often a peace treaty or settlement. However, on occasion, wars end in an armistice without any formal peace treaty covering it, e.g., the Korean War. Title to territory by conquest specifically involves: (a) possession of territory by force; (b) display of intention to hold; and (c) ability to retain the territory as its sovereign power. A most recent example of conquest is Israel’s capture and annexation of the Golan Heights in 1967. 
4. Occupation: It is the acquisition (or attribution) of territory either in defiance of or due to the absence of a proper sovereign. Effective occupation is the control of free, newly-discovered territory. The occupying power has typically no sovereign title or right to such land. E.g., Spain’s colonization of the Americas. Undoubtedly, by immemorial usage having the force of law, besides the animus occupandi, the actual (and not the nominal) taking of possession is a necessary condition of occupation. It usually requires that there be an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis. 
5. Prescription: It connotes the effective control of territory of another acquiescing state. Similar to occupation, it refers to the acquisition of sovereignty by way of the actual exercise of sovereign functions, over the territory in question, for a reasonably prolonged period of time. It involves the open encroachment by the new sovereign upon a territory, without either protest or other contest by the original sovereign or objection from other states. This doctrine legalizes de jure the de facto transfer of sovereignty caused by the original sovereign's extended negligence and/or neglect of the area in question. E.g., In Grisbadarna Case (1909), both Sweden and Norway based their claims on maritime territories on prescription. 
6. Adjudication: Sometimes, sovereignty over a territory is determined through legal or quasi-legal proceedings. Such adjudication is, at times, judicial. For instance, in 1908 AD the International Court of Justice transferred the Bakassi peninsula to Cameroon (from Nigeria). Other times, such adjudication is made through arbitration. For e.g., an arbitral award was made in 1899 to settle the boundary dispute between British Guyana and Venezuela.

Principles of International Law for Treatment of Territory

Roman property regime and its equitable principles of uti possidetis juris (Latin for ‘as you possess under law’) and terra nullius (again Latin for ‘land belonging to no one’) have been applied in so many different contexts that they have truly become the bedrocks of modern international law for the treatment of territory.

In the past only unoccupied territory could be legally acquired. Yet, the Americas were colonized in contravention of this prevailing principle. So, the ‘Rule of Inter-temporal Law’ was conceived to prevent judging of past actions with contemporary standards. This rule of prospective application is vital since it deems that all actions need to be judged in the strict temporal context in which they occurred. The prime aim is to prevent the finding of past injustices (e.g., colonization) against the vagaries of legal evolution. Thus, retrospective application of more modem and progressive ideas, to acts and deeds that occurred before such ideas developed, is proscribed.

Further, the doctrine of uti possidetis, which solidifies the sanctity of boundaries, does allow territorial adjustment due to consent. Yet, this consent is required between existing sovereign states. Non-state actors have no explicit right to demand territorial change even though the right to self-determination is enshrined in the two international covenants of 1966 that are the blueprint for the human rights regime.

Therefore, existing states have sought to minimize the impact of the right of self-determination by declaring it as a right that only exists in an 'internal' guise. So, in bid to access the right to self-determination, groups (of unrepresented people) often seek secession by attempting to pierce the veil of domestic sovereignty and internationalizing their conflicts with their respective state governments.

In view of the foregoing, it is clear that sovereignty over the territory of Kashmir was acquired, first by the British, through conquest and then, by Raja Gulab Singh, through a purchase. By virtue of Article 12 of the Treaty of Lahore, Raja Gulab Singh also acquired absolute sovereignty over the dependencies of Jammu, Baltistan and Ladakh too, which he already possessed.   

Critics of the Kashmir Transfer

KM Panikkar, in his 1953 book “The Founding of the Kashmir State”, says (as Justice AS Anand quotes in his book), "in discussing this question of the transfer of Kashmir, it is... important to remember (that) there was no sale of Kashmir at all." Thus, he implies that the transfer of Kashmir to Maharaja Gulab Singh was null and void because of the anomaly, to quote him, of ‘...no sale of Kashmir...’ simply because ‘no consideration’ was offered by the British (to the Lahore Durbar).

That is a preposterous argument. The Lahore Durbar relinquished its sovereignty over Kashmir in the Treaty of Lahore, thus, paving the way for the British to negotiate the terms of sale of Kashmir to Raja Gulab Singh. Hence, the transfer of sovereignty over Kashmir can be deemed to consist of two phases: (a) the cession of Kashmir to the British (as reparation for the First Anglo-Sikh War); and, (b) the sale of Kashmir to Raja Gulab Singh.

The Treaty of Lahore left it to the British Government to enter into a separate arrangement with Raja Gulab Singh for the Kashmir sale. In effect, the purchase of Kashmir (by Raja Gulab Singh) was a tripartite arrangement that was executed through two bipartite agreements, viz., the Treaty of Lahore and the Treaty of Amritsar.

Indeed Justice AS Anand submits rightly (in his book, "The Constitution of Jammu and Kashmir - Its Development & Comments")... “When you accept money in consideration for a transfer of a material thing, the transaction is nothing but ‘sale’. Undisputedly, a person cannot purchase something unless it has been sold to him and if it is sold...the transaction is a sale...”

However, Justice Anand goes on to allege that, “...at the time of the ‘sale of Kashmir’ no consideration was given to the moral effects of the deed. Millions of people were sold like sheep and cattle and the whole transaction was made behind their backs... The Treaty of Amritsar consisting of 10 articles made no mention whatsoever, of the rights, interests or the future of the people of the State. Unlimited power was transferred to a Dogra Hindu Ruler to rule over the Muslim majority population.”

With due respect to the former Chief Justice of India, this argument is untenable too. It is a red herring in toto. The Hon’ble Justice perhaps missed the forest for the trees. Indeed, from a “contracts law” perspective, the sale being of territory, the argument has some validity. However, we are talking acquisition of sovereignty over territory, not just title over property here.

The Hon’ble Justice adds, “Since, in the Indian Native States, absolute autocracy was the principal characteristic of the political life at that time; no voice was raised against this transaction in the State...but outside the State sympathy was shown towards the masses in Jammu and Kashmir.”

Again, the rationale does not hold water, if one were to go by the many examples (the Virgin Islands purchase; Alaskan purchase, etc.) cited above for acquisition of sovereignty over territory.

Concluding Remarks

It is abundantly clear that Raja Gulab Singh’s acquisition of sovereignty over Jammu and Kashmir was absolute once the Treaty of Amritsar was signed and the territory ceded to him by the British.

Thus, as the monarch of the erstwhile kingdom, he wielded supreme power and authority over the territories, resources and people of the State. As can be seen from the text of the Treaty of Amritsar, that inheritable right was passed on to Raja Hari Singh by succession (i.e., through “...the heirs male of his body...,” as specified in Article 1 of the Treaty of Amritsar).

Once Maharaja Hari Singh ascended the throne and became the sovereign head of the State, he had all powers and authority, legally, morally or otherwise, to sign the Instrument of Accession on October 26, 1947, acceding the whole of his princely state (including Jammu, Kashmir, Northern Areas, Ladakh, Trans-Karakoram Tract and Aksai Chin) to the Dominion of India.

A careful reading of The Jammu and Kashmir Constitution Act, 1934 (in particular, Article 4), will further show that the aforementioned Act did not cut, limit or curtail any of the Maharaja Hari Singh’s rights or powers over the State.

So, I pose: “Why do some thought leaders present vague, convoluted logic to question the validity of the Kashmir purchase and subsequent accession?”

Counter-arguments welcome, please!

Article 370, Kashmir and UN Security Council Resolutions

My first post on Article 370 had deconstructed the syntax and semantics of its provisions. The second one had scrutinized the Constituent Assembly debates to draw inferences on the legislative intent behind the Article. Both assessments clearly and categorically indicated that:  

• A) Article 370 was meant to be a temporary provision; and, 
• B) There are no constitutional hurdles for the Article’s abrogation. 

Nevertheless, in every public discourse on the relevance of Article 370, there is a section of intelligentsia that bandies Kashmiri aspirations and their right for self-determination vociferously. The United Nations Security Council resolutions, calling for a plebiscite in Jammu and Kashmir, are often cited to support secession from the Union of India.

Are such separatist voices in consonance with the United Nations’ directives? Do the UN Resolutions invalidate Jammu and Kashmir’s accession to India? Or conversely, do they impose any restrictions on India’s sovereignty over Jammu and Kashmir?

I explore facts and facets of accession from a UN perspective in this piece, which is a part of a series of articles on the Article 370 imbroglio.

Backdrop to UN Intervention

The accession of Jammu and Kashmir with the Dominion of India took place post independence at a time when tribesmen from Pakistan had invaded the State. The Instrument of Accession imposed on India the obligation of defending the State of Jammu and Kashmir against external aggression. Hence, Indian troops were flown into the Kashmir valley in October 1947 to drive the aggressors out.

The Indian Army soon discovered that the invaders enjoyed active assistance of the Pakistani authorities. Therefore, the only option for completely removing the raiders from Kashmir was by attacking and neutralizing their bases and supply lines across the border. No doubt, such military action would have escalated hostilities even more between the two countries. Unfortunately though, such overt aggression ran contrary to Sri. Jawaharlal Nehru’s pacifist foreign policy. Hence, on 31 December 1947, India lodged a formal complaint with the United Nations against the Pakistani belligerence.

It is interesting - to cite Sayyid Mir Qasim, a J&K politician’s remarks on page 42 of his book, ‘My Life and Times’- that Sheikh Abdullah was “...not in favor of India seeking the UN intervention because he was sure the Indian army could free the entire State of the invaders...”

Nevertheless, with the ball in the United Nations’ court, the flurry of resolutions that followed was fait accompli.

Overview of Resolutions

The first UN Security Council resolution was adopted in 1948. Resolution No. 38 of 17 January 1948 called upon both India and Pakistan to take all measures to reduce tensions between each other.

The next one, Resolution No. 39 of 20 January 1948, authorised the establishment of a Commission of the Security Council, composed of representatives of three members of the UN (one to be selected by India, one to be selected by Pakistan, and the third to be designated by the two selected), for monitoring the situation in Jammu and Kashmir and for exercising mediatory influence to carry out the orders, advice and directions of the Security Council.

The third and most substantive resolution was No. 47 of 21 April 1948. It recommended the cessation of hostilities and the creation of conditions conducive for a free and impartial plebiscite in the State of Jammu and Kashmir. It also increased the size of the United Nations Commission for India and Pakistan (UNCIP) to five. The final resolution of 1948 was No. 51 of 3 June 1948, which issued certain instructions to UNCIP.

The subsequent resolution, No. 80 of 14 March 1950, pertained to the initiation of demilitarization programme in Jammu and Kashmir. While terminating the UN Commission for India and Pakistan (UNCIP), it appointed a UN Representative to observe, supervise, facilitate and report on the demilitarization process and, at an appropriate time, to arrange for the appointment of a Plebiscite Administrator.

The resolutions of 1951, No. 91 of 30 March 1951 and No. 96 of 10 November 1951, reiterated earlier steps taken and issued relevant operational directives to the UN Representative. Subsequent resolutions of 1952 and 1957 (No. 98 of 23 December 1952; No. 122 of 24 January 1957; No. 123 of 21 February 1952; and No. 126 of 2 December 1957) continued to work towards the goals, activities and objectives set out in earlier resolutions.

Indeed there are other India-Pakistan related resolutions of the Security Council. But, they all pertain to cessation of hostilities between the two nations during their armed conflicts of 1965 and 1971.

A Note on UN Resolutions

A review of the UN Charter will show that the powers of the UN Security Council are provisioned under Chapters VI and VII. While the former deals with “Pacific Resolution of Disputes”, the latter pertains to “Threats to Peace, Breaches of the Peace and Acts of Aggression.”

Resolutions of the Security Council adopted under Chapter VI are intended to be followed and implemented through negotiations and peaceful settlement between the conflicting parties.

In contrast, resolutions adopted under Chapter VII invest the Security Council with the power to make stringent demands that mandatorily require nations to comply with the terms set forth therein. This leaves no room to the party concerned to negotiate a mutual settlement.

Implications of Resolution 47

The Security Council in that Resolution recommended:-

“...to the Governments of India and Pakistan the following measures as those which in the opinion of the Council are appropriate to bring about a cessation of the fighting and to create proper conditions for a free and impartial plebiscite to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan”.

The point to note here is that the resolution calling for a “free and impartial plebiscite” was only a “recommendation”, not either a demand or a direction mandating compliance.

More noteworthy though is the phrase “...to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan.” This most certainly and unambiguously indicates that the ‘plebiscite’ envisaged was intended to determine the issue of 'accession' and that 'independence' of Jammu and Kashmir was not an option contemplated.

Indeed, voices in the valley and beyond, endorsing the inclusion of ‘independence’ as a third alternative to their demands of right to self-determination, need to necessarily rethink the matter.

The resolution goes on to recommend that the Government of India should institute a Plebiscite Administration body, with a nominee of the UN Secretary-General as Plebiscite Administrator, who would communicate directly with “....Commission of the Security Council...”, i.e., the UN Commission for India and Pakistan (UNCIP), which was constituted with (erstwhile) Czechoslovakia, Belgium, Colombia, Argentina and USA as its 5 members.

So then, after the termination of the UNCIP vide Resolution No. 80 of 14^th March 1950, this resolution, notwithstanding its recommendatory status, has lost much of its relevance.

Implications of Resolution 91

In Resolution No. 91, the Security Council took specific note of:

1. The resolution, adopted on 27^th October 1950 by the General Council of the ‘All Jammu and Kashmir National Conference’, recommending the “convening of a constituent assembly for the purpose of determining future shape and affiliations of the State of Jammu and Kashmir...”; and 
2. The fact that “...such a constituent assembly would be elected in only a part of the whole territory of Jammu and Kashmir.”

Hence, the Security Council affirmed:-

“that the convening of a constituent assembly, as recommended by the General Council of the ‘All Jammu and Kashmir National Conference, and any action that assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the above principle (i.e., of the will of the people expressed through the democratic method of a free and impartial plebiscite...”

What then are the implications of this recommendatory resolution of the Security Council?

On one hand, it means that, in the eyes of the Security Council, the “Constitution of Jammu and Kashmir”, drafted and adopted by the Constituent Assembly of Jammu and Kashmir, is really not an expression of the will of the people of the State.

On the other hand, it also means that any such expression of the will of people will only be valid post a plebiscite to determine the will of the people of all of Jammu and Kashmir - i.e., inclusive of the parts of Jammu and Kashmir under Pakistani and Chinese occupation. Needless to say, such a plebiscite, for determining accession to either India or Pakistan (and not for adopting a Constitution of Jammu and Kashmir under the Instrument of Accession), can only be held after the restoration to India of all territories currently under Pakistani and Chinese control.

Locus Standi of Security Council

For determining the applicability of the Security Council resolutions, it has to be borne in mind that Jammu and Kashmir, at the time of its accession to India, was an independent, princely state, which had neither joined the United Nations (by signing the UN Charter) nor had approached the UN for any assistance with regards to the matter of its accession. Indeed, the accession of the State was the fallout of (a) the termination of British rule in the Indian subcontinent; and, (b) the negotiations preceding the partition of India and Pakistan.

Hence, it can be argued validly that the Security Council lacked the competence to reopen the question of accession of Jammu and Kashmir either at the instance of India or Pakistan. The only party which might have had a right, to demand a reconsideration of the issue of accession, was perhaps the Ruler of Jammu and Kashmir, who had signed the Instrument of Accession, or his successor in interest.

Further, it is apparent that only the question of “external aggression in Jammu and Kashmir” had been brought to the notice of the Security Council for resolution through negotiated settlement. Needless to say, the Security Council exceeded its terms of reference when it called for a plebiscite in Jammu and Kashmir. 

So then, the million-dollar question: Why did the Nehruvian government meekly accept the terms laid down in UN Resolution No. 47. Confounding, indeed!

Conclusions

In view of the foregoing arguments, it is clear that the UN Security Council had no legal competence to broach the issue of accession per se and to 'unusually', if not 'invalidly or unlawfully', call for a plebiscite. Besides, the resolutions of the UN Security Council were all adopted under Chapter VI of the UN Charter and hence were advisory in nature. Finally, India is under no obligation to abide by those resolutions, either in letter or spirit.

Thus, the demand for a plebiscite made by certain sections in Jammu and Kashmir (and rest of the world) suffers from infirmities, legal or otherwise. Regardless of the UN resolutions, any such referendum is untenable, ineffectual and inexpedient.

In this context, it must be said that any suggestion to the effect that Article 370 is the link that is holding Jammu and Kashmir and (Rest of) India together is downright ridiculous and worthy of the scorn it deserves!

Article 370 and the Intention of the Framers of the Indian Constitution

My earlier post analyzed the “mechanics” of Article 370 by deconstructing its text syntactically and semantically.

My conclusion in that post was that the text of the Article is plain and straightforward enough to permit its abrogation. Others, howeer, use abstruse, convoluted arguments to obfuscate the issue. For instance, Sri. Mani Shankar Aiyar in his book, ‘Confessions of a Secular Fundamentalist’ cites four reasons that Sri. N. Gopalaswami Ayyangar, Member of the Drafting Committee, had given during the Constituent Assembly debates to justify the existence of Article 370. Yet, he runs with the hares and hunts with the hounds by concluding speciously that the Article is “primarily of symbolic rather than substantive value...”

While it is difficult to fathom Sri. Aiyar and his ilk’s lopsided “symbolic, yet special” characterization of Article 370, one cannot argue against the attempt to peep into the minds of our Founding Fathers, the framers of the Constitution, to understand the true legislative intent behind the provisions thereunder. Indeed, careful scrutiny of the transcripts of the Constituent Assembly (of India) debates is an accepted, prudent practice for gleaning the true intention and purpose behind any constitutional provision.

What is a Constituent Assembly?

A constituent assembly (also referred to as a constitutional convention or assembly) is a form of representative democracy. It is a body or assembly of representatives composed for the specific purpose of drafting and/or adopting a constitution. The assembly is dissolved after a relatively short time once it has drafted/adopted the constitution.

In this context, it has to be borne in mind that constitutional law is created in many ways. At times, a sovereign law-giver, say, a monarch, lays down the constitution for all his subjects and later generations. Other times, a constituent assembly is elected democratically through universal suffrage for the sole task of penning a new constitution. There are, of course, all sorts of intermediate arrangements between those two democratic and non-democratic extremes of the spectrum.

The Constituent Assembly of India

The Constituent Assembly was set up while India was still under British Rule. Provincial Assembly elections were conducted early in 1946. In turn, the Provincial Assemblies elected representatives to the Constituent Assembly. Thus, the Constituent Assembly, an indirectly elected body, was comprised of representatives from the Indian National Congress, Muslim League, Communist Party of India, the Unionist Party, Scheduled Caste Federation, etc. The first session of the Constituent Assembly was held on 9^th December 1946.

After all parties concerned accepted and agreed to the “Two-Nation Theory” for the partition of erstwhile India, the delegates from the provinces in modern day Pakistan and Bangladesh withdrew to form the Constituent Assembly of Pakistan. Subsequent to the transfer of sovereignty and the creation of Dominion of India on 15^th August 1947, the Constituent Assembly (of India) was expanded to include nominees from the princely states.

On 26^th November 1949, the Constituent Assembly of India adopted the draft Constitution, which took effect on 26^th January 1950. Thereafter, the Constituent Assembly continued to function as the Provisional Parliament of India till the first general elections took place in 1952.

Article 306A of the Draft Constitution

Article 370 was denoted as 306A in the Draft Constitution of India. It was inserted as a new article after Article 306, with reference to Amendment No. 379 of List XV (Second Week), as follows:

Much of the text of the draft Article 306A is the same as that of Article 370. It confirms the territorial integration of the State of Jammu and Kashmir with the Dominion of India. It has a few contextual differences though vis-à-vis Article 370, which are highlighted below.

Firstly, sub-clause (a) of Clause (1) refers to Article 211A of the Draft Constitution, which corresponds to Article 238 of the Constitution of India.

Secondly, the “Government of the State” in the draft refers to the “Maharaja of Jammu and Kashmir, acting on the advice of the Council of Ministers....under the Maharaja’s Proclamation, dated the fifth day of March, 1948...” This was eventually amended to “Governor of the State”. Further, by virtue of that Proclamation, a “popular Interim Government...pending the formation of a fully democratic Constitution” had become operational in Jammu and Kashmir.

The Maharaja’s Proclamation further empowered the Council of Ministers of that “popular Interim Government” to take appropriate steps, on restoration of normal conditions, for convening “a National Assembly based upon adult suffrage...” in, and for “the work of framing the new constitution...” of the State of Jammu and Kashmir. Thus, it was on the advice of that “popular Interim Government” and in accordance with the “Instrument of Accession” that the Maharaja of Jammu and Kashmir had consented to the insertion of Article 306A into the Draft Constitution.

Finally, Article 306A stipulates that, if the applicability of any provision(s) of the Constitution of India to the State of Jammu and Kashmir were to be notified by such suitable Order of the President prior to the convening of the Constituent Assembly of Jammu & Kashmir, after properly obtaining the concurrence of the Maharaja (i.e., either under the Instrument of Accession on consultation with or otherwise on the recommendation of the Maharaja), then such provision(s) were later required to be duly “placed before such Assembly for such decision as it may take thereon.”

It is noteworthy that this final condition in Article 306A was complied with after the formation of the Constituent Assembly of Jammu & Kashmir, which unanimously ratified the Maharaja's Instrument of Accession to India and adopted a constitution that recognised a perpetual merger of Jammu and Kashmir with the Union of India.

The Constituent Assembly Debate on Article 306A

It is well-documented history that Sri. N. Gopalaswami Ayyangar drafted the Article 306A at the behest of Sri. Jawaharlal Nehru and defended it in the Constituent Assembly. It was then tabled on the floor of the Assembly for discussions on 17^th October 1949.

Sri. Ayyangar justified the introduction of Article 306A on account of the “special”, “unusual” and “abnormal” conditions prevailing in the State of Jammu and Kashmir at that time. He asserted that conditions were “...not yet ripe for...integration (of Jammu and Kashmir with the Union)”, because of the “war going on within the limits of Jammu and Kashmir State” and the fact that part of the state was still “in the hands of rebels and enemies”. Yet, another reason cited was the fact that India was “entangled with the United Nations in regard to Jammu and Kashmir”. This was a reference to the UN Security Council resolution calling for a plebiscite in Kashmir. He also affirmed that it was not possible to say when India would be free from that entanglement.

While the foregoing were the reasons, several other averments of Sri Ayyangar, during the course of his address, shed light on the intentions, assumptions and pursued goals of the Drafting Committee that led to the incorporation of Article 306A in the Constitution. I detail hereunder some of Sri. Ayyangar's most important and relevant statements on Article 306A.

Accession and Integration of Jammu and Kashmir

For starters, he proclaimed, “The Jammu & Kashmir State, therefore, has to become a unit of the new Republic of India...accession to the Dominion (of India) always took place by means of an instrument...this has taken place in this case.” The declaration, whichever way you slice and dice the interpretation of the text, or its phraseology, leaves no ambiguity or uncertainty on Jammu and Kashmir’s accession to India. The issue at stake, in the conception of Article 306A, was about the State becoming a "federal unit" of India, and not its accession per se. Sri. Ayyangar's remarks disprove the contention, in some quarters, that the accession of Jammu and Kashmir is contingent upon Article 370 in the Constitution. They also dispel the fallacious argument that Article 370 is the link that integrates Jammu and Kashmir with the rest of the country.

Sri. Ayyangar further observed, “Instruments of Accession will be a thing of the past in the new Constitution...,” thus implying that once the Constitution of India was adopted, the Instrument itself would become redundant. Thus, the accession itself is irrevocable. 

“It is the hope of everybody here,” he continued, “that in due course even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other States...” The clear implication of “same sort of integration as....in the case of other states” is that the goal was to integrate Jammu and Kashmir in the same manner as the rest of the rest of the nation.

Commitment of Plebiscite

He further confirmed, “Commitment given to people of Kashmir to decide...whether they will remain with the Republic or wish to go out of it...by means of a plebiscite provided that peaceful and normal conditions are restored...” It is anybody’s guess as to whether the phrase “...or wish to go out of it...” implied going with Pakistan or becoming independent.

Nonetheless, there is hardly any doubt about such a plebiscite being contingent upon the restoration of “normal conditions”, i.e., external forces withdrawing from Kashmir and restoring sovereignty over all of Jammu and Kashmir to the Maharaja. 

Article 306A: Special, Temporary or Permanent?

Moving on, Sri. Ayyangar clarified, “Till a constituent assembly (of Jammu and Kashmir) comes into being, only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangement that exists in the case of the other States...it is an inevitable conclusion that, at the present moment, we could establish only an interim system. Article 306A is an attempt to establish such a system.”  

This categorically implies that Article 306A/370 was intended to be a temporary measure. No two thoughts about it!!

Besides, that interim arrangement (of Article 306A/370) was meant to be in place only till the Constituent Assembly (of Jammu and Kashmir) came into being. Hence, it is evident from Sri. Ayyangar’s words that our Founding Fathers had indeed envisaged abrogation of Article 306A/370 in the due course of time.

Later in his speech, Sri. Ayyangar confirmed, “...it is one of our commitments to the people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the State for the purpose of framing its Constitution...” Thus, in the case of Jammu and Kashmir, the Drafting Committee deviated from a tiered, federal structure inherent in the Indian Constitution, which, some have opined, provides for a “unitary State with subsidiary federal features”. The departure mirrors, to some extent, the “dual federalism” of the United States - a schema distinctly different from that of the Indian Constitution.

In short, Article 370 ushers in asymmetry in the federal structure of India. It is an aberration to the fundamental principle of “paramountcy of national interest despite federalism” enshrined in our Constitution.

Abrogation of Article 370

Finally, Sri. Ayyangar declared in his speech, “The effect of this article is that the Jammu and Kashmir State which is now a part of India will continue to be a part of India, will be a unit of the future Federal Republic of India and the Union Legislature will get jurisdiction to enact laws on matters specified... it (i.e., Constituent Assembly of Jammu & Kashmir) will make a recommendation to the President who will either abrogate article 306A or direct that it shall apply with such modifications and exceptions as the Constituent Assembly may recommend.”

These remarks pf Sri. Ayyangar make it amply clear, certain and unambiguous that the accession of Jammu and Kashmir is final and complete. It also spells out that the Framers of the Constitution envisaged either the abrogation of Article 370 or its modified application. The latter was to be on the Constituent Assembly’s recommendation, which, as we now know, never came to pass.

Hence, given our ex post facto knowledge that the Constituent Assembly of the State of Jammu and Kashmir was convened and disbanded after accomplishing its purpose, i.e., the framing of Jammu and Kashmir’s Constitution, the only option left on the table today is the abrogation of the Article.

The Bottom-line

Article 370 was always meant to be a temporary provision. It has outlived its usefulness. The Framers of the Constitution intended that it be abrogated (or appropriately modified) eventually.

The argument that abrogation of Article 370 would require reconvening of the Constituent Assembly of Jammu and Kashmir is preposterous and mischievous. It is akin to claiming that any repeal or amendment of an Article in the Indian Constitution requires the re-institution of the Constituent Assembly of India. As has been highlighted earlier in this article, all Constituent Assemblies are always dissolved after adoption of the respective Constitutions, which then provide for corresponding mechanisms for constitutional amendments.

Nevertheless, with the Constituent Assembly of Jammu and Kashmir disbanded on completion of its task of framing the J&K Constitution, what purpose is Article 370 serving? What is the need for, as Mani Aiyar puts it, the "symbolic presence" of Article 370 in the Constitution?

On the flip side, if indeed the Article was really meant to be a necessary provision, and not temporary, why hasn't Parliament made it permanent? 

Needless to say, any objective evaluation of the Constituent Assembly debates proves that Article 306A was meant to be transient and that its abrogation does not present any problem whatsoever about Jammu and Kashmir's accession to or integration with India.

Article 370, the State of Jammu and Kashmir and Plain Speak

No sooner had the Sri. Narendra Modi led NDA government assumed office at the Centre, the newly-sworn Minister of State, Sri. Jitendra Singh stirred a hornet’s nest, when he stated that, “...Article 370 has done more harm than good to the people of Jammu and Kashmir..."

The minister’s first salvo was consistent though with the BJP's stated position of “abrogation of Article 370” in its election manifesto. 

Nevertheless, the Minister's remarks had the Jammu and Kashmir Chief Minister, Mr. Omar Abdullah, up in arms with a quick, tweeted retort, “Mark my words & save this tweet - long after Modi government is a distant memory either J&K won’t be part of India or Art. 370 will still exist.” His saber-rattling continued on mainstream media too, making an abrogation of Article 370 seem apocalyptic. 

So then, is Article 370 really etched in stone in the Constitution of India? Is the verbiage so watertight that it renders any pursuit of the article’s abrogation into a blasphemous pipedream? Is the Article so tightly coupled with the accession of State of Jammu & Kashmir that it cannot be abrogated without severing the State from the Union? 

Well, here's my assessment of the Article at the center of the controversy. The dissection is essentially less legal, more linguistic because, in my opinion, the provision is as clear, plain and unambiguous as a piece of legislation can be. In other words, the provisions of the Article speak eloquently for themselves. 

Hence, this essay looks exclusively at the text and nothing but the text of the Article, with no prejudice either to the context or the content.

The text of the Article follows below: 

Header of Article 370

The header (or, annotated margin note) qualifies Article 370 as “temporary provisions”. 

In other words, the header unequivocally asserts that the Article was not meant to apply in perpetuity. It also minimizes the difficulty to amend the Constitution of India, whenever the necessity arises to abrogate, modify or extend the scope of Article 370.

 

Prelude of the Article  370, Section (1)

The prelude, “Notwithstanding anything in this Constitution”, indicates that Article 370(1) is free-standing. It follows that it relies on no other provision of the Constitution of India for its enforceability. Consequently, the Prelude also facilitates the ease of amendment of the Article, in accordance with the provisos contained therein, more so since no express restriction or prohibition of such amendment exists within the Article’s ambit. 

Article 370, Sections (1) (a) & (b)

Indeed a blind eye can be turned towards the provision in Article 370(1) (a), since Article 238 has been repealed. Hence, the provision is redundant. So I won’t waste any text or time analysing its ramifications.  

Paragraph (i) of Article 370(1) (b) 

Article 370(1) (b) defines the limits of parliamentary power for enacting laws for the State of Jammu and Kashmir. The text per se of Article 370(1) (b) (i) is patently unambiguous. 

The Instrument of Accession (which governs the accession of the State to the Dominion of India) specifies four main heads, viz., defense, foreign affairs, communications and ancillary matters. The Parliament is empowered to make laws for the State of J&K under Article 246 on all subjects in the Union and Concurrent Lists (List I and List III of Seventh Schedule) that the President declares, in consultation with the State Government, as corresponding to those enumerated in the Instrument of Accession. It has to be emphasized that the expression ‘...in consultation with...’ connotes nothing more than a discussion, formal or otherwise.

Paragraph (ii) of Article 370(1) (b)

Art. 370(1) (b) (ii) relates to subjects other than those mentioned in the Instrument of Accession. It stipulates that subjects, other than those in the Instrument of Accession, can also be brought within the purview of Parliament through a Presidential Order with the concurrence of the Government of the State. The phrase “...with the concurrence of...” clearly implies a need for the consent of or agreement with such declaration of the President.

Explanation of Paragraphs (i) and (ii)

The key to statutory interpretation of Article 370(1) (b) (i) and (ii) exists though in the ‘Explanation’ (reproduced below), which defines the term, "Government of the State."

      Explanation: For the purposes of this article, the Government of the State means the person for   

      the time being recognised by the President on the recommendation of the Legislative Assembly of the 

      State as the Governor of the State, acting on the advice of the Council of Ministers for the time being 

      in office.

It is crystal clear that the reference to ‘Government of the State’ in Article 370(1) (b) means the ‘Governor of the State (of Jammu & Kashmir)’, in whom the executive power of that State vests under the Constitution of India. It is stipulated too that the person, serving as the Governor of the State (of Jammu and Kashmir), has to be so recognised by the President on the recommendation of the Legislative Assembly of the State (of Jammu and Kashmir). 

In the Explanation though, the dangling modifier, “...acting on the advice of the Council of Ministers...,” presents some difficulty in interpretation. Nevertheless, if the Explanation is taken as a whole, it is apparent that the Governor of the State has to be recognized by the President, who: (a) accords such recognition based on the “recommendation of the Legislative Assembly of the State”; and, (b) acts on the "advice of the Council of Ministers..."  

A critical evaluation of the expression “...recommendation of the Legislative Assembly of the State...,” reveals that such recommendation is purely advisory in nature. It is surely meant to have guidance value and, at best, can only be an endorsement, and not a selection or approval, of the person designated / recognised as Governor of the State by the President. Neither does any explicit or implied provision in Article 370(1) (b) indicate that such “recommendation of the Legislative Assembly of the State” is binding on the President.  

In short, it is amply certain that the final arbiter on such recognition of the Governor / Government of the State of Jammu and Kashmir is the President of India, who acts on the advice of the Council of Ministers in the Union Government.  

Article 370(1), Clause (c)

Article 370(1) (c) reiterates, in no uncertain terms, that Jammu and Kashmir is an integral part of the territory of India (with its reference to Article 1 of the Constitution of India). It further expressly subjects the State to the provisions of Article 370, insofar as the federal link, and separation of powers thereof, between the Union of India and the State of Jammu and Kashmir is concerned. 

Article 370(1), Clause (d)

Article 370(1) (d) lays down that other provisions of the Constitution (i.e., besides Article 370) can be applied to the State of Jammu and Kashmir with or without “exceptions and modifications” by order of the President. However, this power is not to be exercised by the President without:

1. Consulting (and NOT seeking approval of) the State Government, i.e., the State Governor [as detailed in paragraph (i) of sub-clause (b) of Article 370(1)], if matters to be specified in such Order of the President pertain to those mentioned in the Instrument of Accession. 
2. Concurrence of the State Government, i.e., the State Governor [as detailed in paragraph (ii) of sub-clause (b) of Article 370(1)], if matters to be specified in such Order of the President relates to matters other than those mentioned in the Instrument of Accession. 

Article 370, Section (2)

Article 370(2) provides that if the Government of the State, i.e., the State Governor, were to give concurrence to such Order of the President before the convening of the Constituent Assembly of the State, for the purpose of framing the Constitution of the State, then, such Order “shall be placed before such Assembly for such decision as it may take thereon.”

It is obvious that Article 370(2) did envisage the convening of the Constituent Assembly of the State of Jammu and Kashmir. However, in view of the dissolution in 1957 of the Constituent Assembly, that had been convened in 1951 for framing and adopting of the Constitution of Jammu and Kashmir, this Article 370(2) too has exhausted itself. In other words, Article 370(2) is superfluous in the present context. 

Article 370, Section (3)

Again Article 370(3) is categorical in stating that despite the foregoing provisions of this Article, the President is empowered to declare, by public notification, the operation, restriction, cessation or abrogation of the Article in the country. The proviso though mandates that the recommendation, of such Executive Order of the President, by the Constituent Assembly of the State is necessary for the issue of such a notification.

It follows from a strict interpretation of the proviso to Article 370(3) that such recommendation of the Constituent Assembly is essential for the issue of any such notification amending or abrogating the Article. 

However, nothing in Clause (3) of the Article implies that such recommendation is either necessarily binding on the President or applicable despite a defunct, extinct Constituent Assembly. Hence, it stands to reason that with the dissolution of the Constituent Assembly, the proviso is today redundant. 

Conclusion

Thus, if one applies his mind to the provisions of Article 370, it will be apparent, through a process of logical deduction or rational construction or otherwise, that nothing in the text of the Article is so sacrosanct as to willy-nilly make its abrogation impossible.

But, who will step up to the plate for taming the monster called Article 370 of the Constitution of India?