ARTICLE 370 OF THE CONSTITUTION: A GENESIS
Jai Shankar Agarwala
A brief history of why Article 370 of the Constitution was framed in a certain manner and the importance of the text of the Article from the viewpoint of the people of Jammu and Kashmir.
The princely states comprised almost half of the Indian territories in the subcontinent at the time of the proclamation of 1858 by the British colonial powers and their princes enjoyed full sovereignty in the internal matters subject only to the paramountcy of the British Crown. These territories together were referred to as “Indian India” in contrast to the rest of India, which by now had come to be known as “British India”—the territories directly administered by the British Crown.
The princely state of Jammu and Kashmir was one such state of the “Indian India” ruled by the Dogra lineage of kings under British paramountcy. The history of this ruling family is chronicled by Kalhana in his well-known classic—Rajatarangini (12th century CE)— meaning the “River of Kings” written in Sanskrit verse and widely credited as the first book of “history” of the region. Maharaja Hari Singh of this lineage was the ruler of “Jammu and Kashmir” during the turning point of the state’s history in 1947.
The Cabinet Mission of 1946 through their memorandum articulated clearly the policy of the new government towards the native princes on the withdrawal of British Rule from India. It affirmed that the rights surrendered by the Indian states to the British Crown would revert to the rulers of the states when the new dominions of India and Pakistan came into existence following the withdrawal of the British from India. The Cabinet Mission, however, advised the native states to evolve their relationship with the successor governments as the British would no longer be in a position to extend to them any protection. Legally speaking, the princely states of Indian India became fully independent with the lapse of British paramountcy on the coming into force of the Indian Independence Act, 1947 passed by the British Parliament, creating two dominions out of British India, namely, India and Pakistan.
The native Indian states numbering 565 at that time, of which Jammu and Kashmir was one, were now left with three choices: (i) to remain completely independent; (ii) to accede to India; or (iii) to accede to Pakistan. The power to make the choice was vested in the ruler of the state concerned. Jammu and Kashmir state which bordered both India and Pakistan and was ruled by Hari Singh, the then Dogra king, vacillated in making a prompt choice and did not sign the instrument of accession in favour of either India or Pakistan on the date of transfer of power by the British in August 1947. Perhaps, he harboured an ambition of keeping an independent existence, free from both India and Pakistan which eventually proved to be a costly political blunder for him and his people. It is pertinent to mention here that the state of Jammu and Kashmir had plural demographic features: its Kashmir Valley was predominantly Muslim, Ladakh Buddhist, and its Jammu region was predominantly Hindu, which fact might have contributed to the ruler’s initial ambivalence in addition to his personal ambition to rule an independent sovereign state.
Peace in Kashmir was not to last long after the withdrawal of the British. Barely two months after independence, on 20 October 1947, a large number of armed tribesmen invaded Kashmir from the side of the border with Pakistan causing grave devastation and carrying out killings, rapes, loot and plunder in the Valley of Kashmir. Unable to meet the situation with his own forces, Hari Singh was now left with a Hobson’s choice. He addressed a letter to Lord Mountbatten, the Governor General of India, seeking Indian help to save the state from the raiders, and attached his signed Instrument of Accession to India for acceptance by the Indian Government. The Governor General of India signed his acceptance on the instrument on 27 October 1947. The execution of the Instrument of Accession by the maharaja of Jammu and Kashmir and its due acceptance by the Governor General of India made the accession of Jammu and Kashmir to India final, complete and legally unassailable. For, the power to accede to any successor dominion of British India was vested in the ruler of the native state concerned and none else. By this Instrument of Accession, three subjects, viz, defence, external affairs and communications stood explicitly transferred to India, and the rest retained by the ruler of the state of Jammu and Kashmir to be governed by the Jammu and Kashmir Constitution Act 1939, then in force in the state.
In March 1948, Hari Singh made a proclamation by which his council of ministers were to convene a National Assembly based on adult franchise to work out a new constitution for Jammu and Kashmir. On 20 June 1949, he issued another proclamation conferring all his royal powers, functions and prerogatives as ruler of the state on Yuvraj Karan Singh Bahadur to be exercised by him during the absence of the maharaja who had by then shifted to his Jammu residence.
During this period of time, the Constituent Assembly of India was engaged in the gigantic task of drafting the largest constitution of the world, which was finally adopted and enacted on 26 November 1949. It was put to effect on 26 January 1950 when India became a democratic republic in accordance with the Constitution of India. Unlike the 560 and odd states which took part in the deliberations and decided to fully integrate as states of the Union of India treaties, under the Constitution Jammu and Kashmir stood on a different footing from other states of the Union. Article 370 was necessitated to accommodate the then prevailing legal status of the Jammu and Kashmir state in the body of the Constitution of India.
While India was a democratic republic as per the Constitution of India, something significant happened in the state of Jammu and Kashmir soon thereafter. Yuvraj Karan Singh, now vested with the powers of the ruler by Hari Singh, issued a proclamation convening a National Constituent Assembly for Jammu and Kashmir on the basis of adult suffrage for drafting a constitution for the state. It was also to decide the future of the question of accession with India. On 15 February 1954, the state’s Constituent Assembly ratified the state’s accession to India. Section 3 of the state’s Constitution reads: “the state of Jammu and Kashmir shall be an integral part of India.” Section 147 of the state’s Constitution has made this article unamendable by a future legislative assembly of the state. This completed the process of the state’s legal integration with India.
As already stated, the Instrument of Accession with India conferred powers on the Union of India in matters of only external affairs, defence and communications. Internal administration was retained by the state as is evident from the Clause 8 of the instrument. The instrument was a standard text as engaged into by other native states as well. But while other native states voluntarily lost their independence in internal administration by signing supplementary treaties with India and by accepting in totality the Constitution of India, it was not so with Jammu and Kashmir. This special legal status of the state of Jammu and Kashmir was upheld by the Supreme Court in Premnath Kaul vs State of Jammu and Kashmir (A 1959 SC 749) and was again reaffirmed by the Supreme Court in Rehman Shagoo vs State of Jammu and Kashmir (A 1960 SC 1).
Unlike other Indian states, Jammu and Kashmir was not represented in the Constituent Assembly engaged in the drafting of the Constitution of India. It was only in June 1949 that Karan Singh, advised by his council of ministers, nominated four representatives to the Constituent Assembly who also made it clear that the relationship between India and the state of Jammu and Kashmir was to be guided by the Instrument of Accesssion only. It therefore became necessary to accommodate Kashmir in the Constitution of India by providing a special provision. While moving Article 306A (now Article 370) before the Constituent Assembly, N Gopalaswamy Ayyangar (Member from Madras: General) addressed the House:
Sir, this matter, the matter of this particular motion, relates to the Jammu and Kashmir State. The House is fully aware of the fact that that state has acceded to the Dominion of India. The history of the accession is also well known. The accession took place on the 26th October 1947. Since then, the state has had a chequered history. Conditions are not yet normal in the State. The meaning of the accession is that at present that state is a unit of a federal state namely, the Dominion of India. This Dominion is getting transformed into a Republic, which will be inaugurated on the 26th January 1950. The Jammu and Kashmir State, therefore, has to become a unit of the new Republic of India.
As the House is aware, accession to the Dominion always took place by means of an instrument which had to be signed by the Ruler of the State and which had to be accepted by the Governor General of India. That has taken place in this case. As the House is also aware, Instruments of Accession will be a thing of the past in the new Constitution. The States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of Accession for the purpose of becoming units of the Republic, but they are mentioned in the constitution itself; and, in the case practically all states other than the State of Jammu and Kashmir, their constitutions also have been embodied in the constitution for the whole of India. All those other states have agreed to integrate themselves in that way and accept the constitution provided.
When questioned by Maulana Hasrat Mohani as to why this discrimination in the case of Jammu and Kashmir, Ayyangar replied:
… the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of constituent assembly, will determine the constitution of the state as well as the sphere of Union jurisdiction over the State…… Till a constituent assembly comes into being, only an interim arrangement is possible and not an arrangement that can at once be brought into line with the arrangement which at once be brought into line with the arrangement that exists in the case of 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.
Further on the effect of this Article he said:
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 either in the Instrument of Accession or by later addition with the concurrence of the Government of the State. And steps have to be taken for the purpose of convening a constituent Assembly in due course which will go into the matters I have already referred to. When it has come to a decision on the different matters it 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. That, sir, is briefly a description of the effect of this article, and I hope the House will carry it.
The Supreme Court in Prem Nath Kaul vs State of J&K (supra) further opined in para 38 of the judgment while answering the question whether Article 370(1) affected the plenary powers of the maharaja in the matter of the governance of the state:
The effect of the application of the present article has to be judged in the light of its objects and its terms considered in the context of the special features of the constitutional relationship between the state and India. The constitution-makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the state itself; that is the main basis for, and purport of, the temporary provisions made by present Article; and so the effect of its provisions must be confined to its subject-matter.
It is now part of undisputed history that the Constituent Assembly of Jammu and Kashmir was duly convened and provided a constitution for itself while declaring the state as integral part of India. But it has maintained its distinct status different from other Indian states inasmuch as it has reserved to itself all subjects relating to internal administration of the state transferring only the defence, external affairs and communications as per the Instrument of Accession and no more.
Now, let us take a look at the text of Article 370 of the Constitution of India:
- Temporary provisions with respect to the State of Jammu and Kashmir.—(1) Notwithstanding anything in this Constitution,–
(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to—
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
Explanation—For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s proclamation dated the fifth day of March, 1948;
(c) the provisions of Article 1 and of this Article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (i) or in the second proviso to sub-clause (d) of that clause be given before the constituent assembly for the purpose of framing the constitution of the state is convened, it shall be placed before such assembly for such decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
A plain reading of Article 370 makes it clear that the relationship of Jammu and Kashmir with the Union of India is governed by this article. The other article that applies to Jammu and Kashmir is Article 1 of the Constitution of India. There remains no scope for doubt on the question of the state being integral part of the territory of India. It should be noted that there have been a number of presidential notifications under this Article since 1950 making other provisions of the Constitution of India applicable to Jammu and Kashmir also without any legal impediment.
But the question of abrogation of this Article or of even limiting of its scope is not permitted under proviso Article 370(3) except upon the recommendations of the Constituent Assembly of the State which shall be required to be convened for the purpose.
Objectively viewed, this is not a legal problem emanating from Article 370 of the Constitution of India as erroneously perceived by some corners. The problem is essentially a political one requiring a political solution with due regard to the wishes and aspirations of the people of the state and its regions, including those belonging to religious and ethnic minorities. Given the demographic profile of the state no option can be better than the secular option as already opted by the state.
Jammu and Kashmir, as a state, has a wounded psyche. A part of Kashmir, almost one-third of its territory, is under occupation of Pakistan who projects it as “Azad Kashmir”—termed by India as Pakistan Occupied Kashmir (POK). It should be kept in mind that the people living in the POK are no different than the people living on the Indian side and the Line of Control has not and cannot terminate the bond of relationships between the people on the two sides of the artificial line.
On the eastern side of the state, a part of Ladakh, viz, Aksai Chin area, still remains a disputed territory with China. The Indian Army in Jammu and Kashmir is vested with special powers under the Armed Forces (Special Powers) Act which, it must be admitted, is not a desirable state from the viewpoint of the people of the Valley, even without going into the question of the doctrine of necessity perceived from New Delhi.
There has been too much of bloodshed already in Valley inhabited by peace-loving people who desire nothing but peace and progress. War being no longer an option, only a measure of diplomatic initiatives and strong political goodwill are needed on the part of India and her neighbouring countries to put out the fire on the “Blazing Chinar” in order to bring about lasting peace to the Valley.
https://www.epw.in/journal/2015/16/commentary/article-370-constitution.html
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