All about Article 370

By M. J. Aslam

Following the Mountbatten Plan of June 3rd, the Indian Independence Act, 1947 passed by the British Parliament with mutual consent of Congress and Muslim League, partitioned India into two separate sovereign Dominions of India and Pakistan. It also ended British suzerainty over 570 Princely States from appointed date of 15th August 1947 recognizing their right to accede to either of the two Dominions. The rulers of the States had to make their choice in favour of either of the two Dominions well before 14-15th August, keeping in mind the “demography and geography of the State”. The rule applied to JK’s Maharaja too. The rulers of the most of the States contiguous to Indian Dominion acceded to it by signing Instruments of Accession immediately after termination of British suzerainty over them but the Maharaja of JK took a lot of time to make “his choice”. On 26th October, ultimately, under “extreme circumstances”, he signed highly debatable and contentious “Instrument of Accession” with India. Unlike that of other States, the Maharaja conceded to three subjects of Defense, Foreign Affairs and Communication with India and put stringent conditions in clauses 4 & 7 of IO Accession.

It was in the light of those conditions put in IOA and accepted by India, and in view of the fact that the settlement of the Kashmir-Issue was pending final disposal with UN that a “conduit pipe” to link JK “constitutionally” with India was found and applied by Indian leaders and Law makers, of course, with the active participation of NC leadership in the proceedings of the Constituent Assembly that was discussing about features of the future Republic’s Constitution. However, it goes without saying that the NC leaders who participated in the proceedings of Indian Constituent Assembly were not nominated by the Maharaja of the State as was done and required in respect of all States willing to accede to Dominion of India. The conduit pipe to complete “process of accession” came in the shape of Article 370 of the Constitution of India. Although rightwing organisations of India are openly pressing for abrogation of it, as yet, “Retention of Article 370 has sometimes been justified by saying that it is not a wall but a tunnel. On December 4, 1964, Gulzari Lal Nanda, Union HM, said, “through this tunnel a good deal of traffic has already passed; more will pass now. A few days later MC Chagla, Education Minister, observed, “Through Article 370, the whole of the Constitution could be applied to the J & K”. (Jagmohan, My Frozen Turbulence in Kashmir,(2006, 7th edition), page 252). Earlier on 27th November, 1963, PM of India, Jawaharlal Nehru had stated that Article 370 “has been eroded, the process of gradual erosion is going on, we should allow it to go on”. (AG Noorani, A Constitutional History of Jammu & Kashmir’ page, 2). To note, India at that time had only “Military Control” over the State and had made commitments to the people of JK and the world in UN about its final disposal by making reference to the people’s will pursuant to the UN Resolutions.

It is clear from above that Article 370 that was avowed to be a provision to guarantee and maintain the “special status of JK within Union of India” was surreptitiously used for different political objects of gradual “total merger” of the State with India. Such erosion of the provision has been itself conflicting with the commitments of Indian leaders made to the world and Kashmiri leaders of the time who had preferred them ( Congress ) over ML leadership while joining hands with Indian Dominion. As discussed in my earlier post, Article 370 was apparently Faustian Bargain of SMA with India.

Notwithstanding that this special provision has been emptied of its initial force to maintain and protect Unique Position of JK within Indian Union, “ it is evident that the Constitution-makers have treated the problem of Kashmir on a special basis and that though the association of Kashmir with India which began with the Instrument of Accession has been steadily and gradually growing closer and closer on a democratic basis, it still presents features not common to any other State included in the Union of India”. (Prem Nath Kaul v. State of Jammu & Kashmir, AIR 1959 SC 749= (1959) SCR Supl. (2) 270, (05 Judges Constitution Bench). The relationship between India and JK should be finally determined by the Constituent Assembly of the State itself. (Ibid) The continuance of the exercise of the powers conferred on Parliament and the President by the provisions of Article 370(1) has been made conditional by the final approval by the State Constituent Assembly itself. (Ibid). However, the SC in its two subsequent rulings emphatically approved exercise of powers by the President under Article 370 even after the Constituent Assembly had ceased to operate and JK Constitution had been enforced in the state. The SC held that the exercise of powers by the President under the provisions of Article 370 (1) even after enforcement of the State Constitution would be valid in law. It further held that “Clause (3) of the Article clearly envisages that the Article will continue to be operative and can cease to be operative only if, on the recommendation of the Constituent Assembly of the State, the President makes a direction to that effect. In fact, no such recommendation was made by the Constituent Assembly of the State, nor was any Order made by the President declaring that the Article shall cease to be operative. On the contrary, it appears that the Constituent Assembly of the State made a recommendation that the Article should be operative with one modification to be incorporated in the Explanation to Clause (1) of the Article”. (Sampat Prakash v. State of J&K, AIR 1970 SC 1118= (1969) 3 SCR 574 (03 judges). Sampat Prakash held that it was bound by the decision of the SC in Puranlal Lakhanpal v. President of India, AIR 1961 SC 1519= (1962) 1 SCR 688 (07 judges). Similar view about constitutional validity of Article 370 and the valid exercise of powers by the President under it was upheld by the SC in M M Damnoo v. State of JK , (1972) 1 SCC 536). The object behind enacting Article 370 was to recognize the special position of the State of JK and to provide for that special position by giving power to the President to apply the provisions of the Constitution to JK with such exceptions and modifications as the President might by order specify. (Puranlal Lakhanpal v. President of India, AIR 1961 SC 1519= (1962) 1 SCR 688 (07 judges). While interpreting the word “modification” used in article 370, the Seven Judges Constitution Bench of the SC held that “when Article 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify, it means that he may vary (i.e., amend) the provisions the Constitution in its application to the State of Jammu and Kashmir. We are, therefore, of opinion that in the context of the Constitution, we must give the widest effect to the meaning of the word “modification” used in Article 370 (1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Article 370(1) only to such modifications as do not make any “radical transformation.” We are therefore of opinion that the President had the power to make the modification which he did in Article 81 of the Constitution”. (Ibid).

In view of the clearly expressed reservation (Article 370), the State even after the Proclamation of the Rule enjoyed sovereignty in all other matters which were possessed by it after the Instrument of Accession. (Dr. Paras Diwan, Kashmir and the Indian Union: The Legal Position, ICLQ, Vol. 2 (1953), pages 333, 343). Till India became a Republic, the relationship of all the States with the Government of India was based on the Instruments of Accession. In the case of other Indian States, the 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 becoming units of the Republic. It would not be so in the case of Kashmir since that particular State is not yet ripe for this kind of integration due to special conditions prevailing in Kashmir. Accordingly, draft Article 306-A was discussed in the Constituent Assembly and thereafter formally added to the Constitution of India as Article 370. (Constituent Assembly Debates, Vol. X, No. 10, p. 422-425: Further , a reference to speech of Gopalaswami Ayyangar who was the architect of this Article that he delivered on October 17, 1949 while moving Article 370 (then Article 306-A) is quite illustrative of the Special position of JK guaranteed under Indian constitution by virtue of Article370). Yuvraj Karan Singh, Regent of Jammu and Kashmir; acting on the advice of his council of Ministers issued a Proclamation on November 25, 1949 which stated that the Constitution of India shall ‘in so far as it is applicable to the State of Jammu and Kashmir, govern the Constitutional relationship between the State and the Contemplated Union of India’. Consequently, the said Proclamation did not carry the Constitutional position any further than where it stood after and as a result of the execution of the Instrument of Accession by Maharaja Hari Singh. (White Papers on Indian States, Appendix LIV, pages 317-372). Thus, since the commencement of the Constitution, it is Article 370 which governs the relationship between Union and State of Jammu and Kashmir.

It has to be noted that Article 370 is an original provision of the Constitution, as such it cannot be repugnant to other provisions of the Constitution of India in view of cardinal rule of interpretation of the statutes, that is, “In Civile Est Nisi Tota Lege Perspecta Una Aliqua Particula Ejus Proposita Judicare Vel Respondere’, = ‘construction is to be made of all parts (of a statute) together, and not of one part only by itself”. Even if it is presumed to be an exception, there are exceptions to every rule. Under the Constitution, only States & not Union Territories have Legislature, as yet, UT of Pondicherry has a Legislature. This is an exception to the general rule.

On the basis of expediency and political history, there are special provisions contained under Article 371 (A) to 371 (I) with respect to the states mentioned therein. Likewise, Article 370 is also a special provision with respect to JK.

Conclusion: In the light of aforesaid discussion, it is clear that Article 370 has become a “permanent feature” of the Constitution of India as the condition for its abrogation as envisaged under its clause (3) was never fulfilled nor could be fulfilled any time now. It is the only TUNNEL through which Constitutional Provisions and laws have been imported to JK from time to time. If this TUNNEL is severed, then, the relationship between JK & India will come under sharp focus at national and international levels keeping in view that UN Resolution on JK still stand on UN Charter and many countries are pressing for resolution of this long pending issue of unfinished agenda of partition. Recently, noted Supreme Court lawyer, Ram Jeth Malini , has stated that he has advised BJP+RSS leaders to “keep mum” on abrogation of Article 370. Never think of that kind of misadventure. Why so? He knows by doing so India will stir hornet’s nest and all facts and myths surrounding JK’s Accession with India and subsequent developments  that “consolidated India’s control on JK” will come in critical question before the world—situation India would never want to take birth for the well known reasons.

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