March 02
Touseef Hameed
Immediately after the independence of Pakistan and India, Confronted with the chances of losing Kashmir to Pakistan, Maharaja Hari Singh requested help from India. Immediately, Patel’s aid V.P.Menon arrived in Srinagar and told the Maharaja that India could take action only if Kashmir acceded to India. It is widely believed that Maharaja wanted to keep Kashmir independent but reluctantly acceded to India due to the grave situation at that time as per him. Thus, on October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession.
Here, the important point is that the accession was partly provisional. For example, clause 7 of this instrument read that Maharaja was NOT committed to accept the future constitution of India. Similarly, clause 8 said that nothing in the instrument affected the sovereignty of the Kashmir. The subjects that were surrendered to India included Defence, External Affairs, Communications and some ancillary subjects such as elections and jurisdiction of courts in these three matters.
Soon after the accession, India had sent its forces to Kashmir. However, later on the Kashmir issue was taken to the UN by Nehru and the issue was given a tag of an international dispute between India and Pakistan. Not only that, but India also made a promise of plebiscite in Kashmir.
By 1949, India granted a special status to Kashmir in article 306A of the draft constitution. This special status was given as per clause 7 of the Instrument of Accession. Later on, The Article 306A was enshrined as Article 370 in the constitution as a “temporary provision”.
Introduction:- Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu And Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. After the J&K Constituent Assembly later created the state’s constitution, it dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.
The state of Jammu and Kashmir’s original accession, like all other princely states, was on three matters: defense, foreign affairs, and communications. All the princely states were invited to send representatives to India’s Constituent Assembly, which was formulating a constitution for the whole of India. They were also encouraged to set up constituent assemblies for their own states. Most states were unable to set up assemblies in time, but a few states did, In the case of Jammu and Kashmir, the representatives to the Constituent Assembly requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State. Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State’s constituent assembly.
Brief elaboration of text of article 370:-
Sub-clause(a) of clause(1) states that article 238, which regulated the relationship between the union & princely states shall not apply to state of Jammu Kashmir.
Sub-clause(b) provides that the parliament can make laws for the state of JK on matters in the union and concurrent list only if the president with consultation of government of state, declares that subject fits the description of the matters of defence, communication and finance.
Sub-clause (c) & (d) makes it clear that only article 1 and article 370 itself, applied to the state other provisions can be made applicable to the state only with the agreement of the state government.
Clause (2) states that if any state government had given consent before the formation of the constituent assembly that concurrence/consent was subject to ratification by the Constituent Assembly of Jammu and Kashmir.
Clause (3) states that president can issue the notification to cease the operation of article 370 only and only on the recommendation of state constituent assembly.
Why 370 is temporary?
There is no doubt that article 370 was among the temporary provisions of the Indian constitution not because the state was on the verge of integration with India but because as J&K is a disputed territory and was on the agenda of the United Nations. The position remains same and J&K was and is yet to see its final solution.
It is necessary to mention here that even Indian Constitution acknowledges this fact through a provision to Article 253.
As article 253 of the Indian Constitution gives overriding powers to the Center in the domain of lawmaking for the sake of implementation of International treaties irrespective of the distribution of legislative power between the Union and the States.
So, In context of J&K the Article 253 makes it clear “that after the commencement of the constitution (application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of state of Jammu and Kashmir shall be made by the government of India without the consent of Government of that state.” Constitution Application Order, 48, Sec 2 (6) (e).
Since this disposition is yet to take place, therefore, Article 370 continues to be a temporary Article and will continue to be so unless Jammu and Kashmir reach its final settlement. And since this was a “temporary provision” in that its applicability was intended to last till the formulation and adoption of the State’s constitution. However, the State’s constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of Article 370. Thus the Article has become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme court of India and The High Court Of Jammu and Kashmir, the latest of which was in April 2018.
Status Of concurrence:-
Jammu and Kashmir acceded to India on October 26, 1947, in respect only of three subjects: defense, foreign affairs, and communications. Article 370 “limited” the powers of Parliament to those three subjects. The President was empowered to make an order extending to Kashmir these three subjects and the federal structure in “consultation” with the State government. But its “concurrence” was required if additional subjects or other provisions of the Constitution were to be applied to Kashmir. There was one overriding proviso. That concurrence was subject to ratification by the Constituent Assembly of Jammu and Kashmir (Article 370 [2]).
Once Kashmir’s Constituent Assembly was “convened” on October 31, 1951, the State government lost all authority to accord any “concurrence” to the Union. With the Assembly’s dispersal on November 17, 1956, after adopting the Constitution of Jammu and Kashmir, vanished the only authority that alone could cede (i) more powers to the Union and (ii) accept Union institutions other than those specified in the Instrument of Accession. So, All additions to Union powers since then are unconstitutional.
In nutshell we can say actually it is constituent assembly who only has the power of concurrence and nobody else. Governor being here as an agent of president cannot give consent at all.
However, the abuse reduces Jammu and Kashmir to an inferior position. For, while in relation to other States, an amendment to the Constitution would require a two-thirds vote by both Houses of Parliament plus ratification by the States (Article 368), for Kashmir, mere executive orders by the President have sufficed since 1953 till now. “Nowhere else, as far as I can see, is there any provision authorizing the executive government to make amendments in the Constitution,”
President Rajendra Prasad pointed out to Prime Minister Nehru on September 6, 1952. Is this the state of things we wish to perpetuate?
Presidential orders and their validity:-
As In exercise of the powers conferred by clause (1) of article 370 of the Constitution, certain presidential orders were made by the president of India viz; presidential order of 1950, 1952, 1954, 1956……to February 1994. But the main point in it is that up to 1954 the orders were issued with the concurrence of constituent assembly but after 1956 to 1994 all the presidential orders were issued with the concurrence of the Government of the State instead of the constituent assembly (which ceased to exist from 25th January 1957) and basically many orders were issued between 11th February 1956 to 1994 which makes various other provisions of the Constitution of India applicable to Jammu and Kashmir.
And moreover, all these orders were issued with the ‘concurrence of the Government of the State’ without any Constituent Assembly. And as it is clear that any constitutional order of the president has to get the prior approval of the constituent assembly of the state. Which ceases to exist from January 1957. So whatever constitutional orders were made after 1957 had the concurrence of the state legislature. So it is clear that the validity of the constitutional order is disputed.
Though the Supreme Court of India validated these constitutional orders in Sampat Prakash and Mohd. Maqbool Damnoo v. State Of Jammu And Kashmir. 1972 AIR 963, 1972 SCR (2)1014, cases, yet there remain so many questions as to the legality of these Orders. The Supreme Court judgments pertaining to the validity of these orders were given in an era when the idea of the basic structure of the Constitution had not yet evolved. Supreme Court during those days perceived amending powers of the parliament vis-à-vis Constitution of India was unfettered. Whole of the Indian constitution in its opinion could be amended by the Indian parliament.
Now, when it is settled that amending powers of the Indian parliament can’t touch the basic structure, the principle mutatis mutandi applies in the context of the state legislature of Jammu and Kashmir. It does not and cannot have the same powers as that of the Constituent Assembly of the state. Once this issue is settled the validity of all those constituent application orders becomes disputed which were pronounced with the concurrence of the state legislature after the dissolution of the State Constituent Assembly in 1957. The concurrence is required to be given by an elected Sadre-Reyasat. Can a nominated governor be a substitute for an elected Sadre-Reyasat, raise a similar question about the Constitution Application Orders enacted after 1964?
Can It be abrogated?
There have been many attempts for the said article’s abrogation but petitions challenging the Article 370 were dismissed by the court. Recently PIL was filed in the Supreme court in 2015 on grounds that Article 370 was added through presidential order and was never presented before parliament. The petition was admitted by the court and still lies before it.
Let us take this case into account; if the Article 370 is a violation of the Article 368 and is unconstitutional then several other laws that were extended to the state through presidential orders also need to repealed. Thus scrapping of this article makes all other presidential orders from 1950 onwards, invalid and nullifies all the 41 subsequent presidential orders, making various other provisions of the Constitution of India applicable to Jammu and Kashmir. Prior to the insertion of Article 35A, the Governor and the Chief Minister of Jammu and Kashmir were addressed as the Sadr-e-Riyasat (President) and Wazir-e-Azam (Prime Minister). Its repeal must then lead back to the same arrangement. we can say that all such objections are without substance. Basically, The justification behind the attempts of abrogation is flawed.
Now as we all know that the Indian Constitution can be amended through procedures provided under Article 368. But It has been made clear that the Article 370 can’t be amended through procedures provided in 368. The Article can be amended and abrogated through a presidential order with concurrence of the State which involves the approval of the Constituent Assembly.
It is obvious that amendment of 370 is not within the domain of legislative or constituent powers of the Indian parliament. It can be done by President of India through a notification but only after concurrence of the State Constituent Assembly (which has seized to exist). But now for a moment if a new Constituent Assembly is formed that means current constitution of state along with its provisions including the one which declare the state of Jammu and Kashmir to be part of Indian Union will get dissolved. Will India take such risk?
When in recent past Kosovo declared independence through a resolution of similar assembly which was recognized both by the UN Security Council and International Court of Justice.
In October 2015, Even the High Court of Jammu and Kashmir has ruled that the Article 370 cannot be “abrogated, repealed or even amended.” It explained that the clause (3) of the Article conferred power to the State’s Constituent Assembly to recommend to the President on the matter of the repeal of the Article. Since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, the Article 370 has taken on the features of a “permanent provision” despite being titled a temporary provision in the Constitution. On 3 April 2018, the Supreme Court of India gave a similar opinion declaring that the Article 370 has acquired a permanent status. It stated that, since the State Constituent Assembly has ceased to exist, the President of India would not be able to fulfil the mandatory provisions required for its abrogation.
Tail piece:-
I would like to end it on a Personal note that Article 370 is the only constitutional or legal link between J & K and India. And its abrogation is next to impossible. As it can be only abrogated with the concurrence of constituent assembly which however has ceased to exist from 1957. However if India tries to abrogate it by one way or other {illegally}
There will be serious consequences for India like If article 370 is abrogated then in legal perspective article 1 in its application to Kashmir will also get abrogated. And obviously Kashmir will drop down from schedule 1 (territory). Then the result will be that the Kashmir will become independent de jure (legally) if not de facto (actually).
In short we can say that If Article 370 was abrogated, then technically and legally the foundation of Jammu Kashmir’s accession to India would cease to exist. And Moreover these calls for abrogation by one party/N.G.O or by the other are only politically motivated calls. My Advice to these people (politicians/NGO’S) will be to stop this drama As you all know the reality that there are only two options in front of you (India) viz; either J & K’s accession to India would cease to exist Or article 370 will still be part of Indian constitution.
Author is a Law (B.A.LLB) Student of Kashmir university and can be reached at touseef680.th@gmail.com