Abstract
In the State of Jammu and Kashmir, the political-cum-legal issue has always been revolving around Article 370 of the Indian Constitution. Further, the separatists have always made futile attempts to recognise the aspirations of the people living in that region. There has always been a necessity to justify the constitutional position of the special but discriminatory provision—Article 370 of the Indian Constitution. The author elucidates the history in the State of Jammu and Kashmir, including the Instrument of Accession and the insertion of Article 370 in the Indian Constitution.
Prima facie, the conferment of special status to the State of Jammu and Kashmir does not place the state on the same stand as other states of India. The author analyses the constitutionality of the Presidential Notification issued for abrogating Article 370, as a consequence of which Article 35A of the Indian Constitution also loses its existence. Further, the author believes that bifurcation of the State of Jammu and Kashmir into two separate Union Territories—Jammu & Kashmir and Ladakh would enable the central government to exercise necessary control over the state affairs in resolving conflicts, which have been prevailing since the date of accession or any point later. There shall be an effective administration to curb terrorism and promote nationalism among the people of the state.
- Introduction
The State of Jammu and Kashmir had always been a conflicted but beautiful region in India. After the British left India, the then ruler of Jammu and Kashmir had provided his assent for it to become an integral part of Independent India. In spite of such accession and assent by the people, the special status has limited the powers of the parliamentary members to legislate for the benefit of the entire state. The State could not do away with the issues related to National Security due to the special status conferred on Jammu and Kashmir. If the applicability of any union legislation, other than laws related to Defence, Communication and Foreign Affairs, extends to Jammu and Kashmir, it would be with the consent of that state government.
- Genesis
The ruler of every state, before theaccession of princely states to the Dominion of India and after independence, had to sign an instrument of accession for the respective state to accede to India. Without such an instrument, no princely state could accede to India. The instrument of accession owes its origin to the Government of India Act, 1935. This act enabled the princely states to accede to ‘Federation of India’ by signing the Instrument of Accession (IOA), and many such states had to depend on British India for financial assistance, infrastructure and defence[1]. Indian Independence Act, 1947 indirectly ceased the operation of Government of India Act, 1935 in relation to exercise of British control over those acceded princely states. Subsequently, the absence of British-control led to a decision-making circumstance for the ruler of every princely state about acceding to Independent India.[2]
The region was not without conflicts even before its accession to India. The revolt caused by Sheikh Abdullahwho called for ‘Quit Kashmir Movement’, and the boycott of Praja Sabha or polls by the Muslim conference led to the ban on political activities and the arrest of Muslim Conference Leaders.[3]
- Accession Instrument
As per the Indian Independence Act, 1947, the instrument of accession enables an Indian state to officially become a part of Independent Dominion of India. Jammu and Kashmir acceded to Dominion of India with the signature of Maharaja Hari Singh on the instrument of accession on October 26, 1947[4]. It is pertinent to note that the IOA signed by the ruler of Jammu and Kashmir was no different from the one signed by all the other 500 Indian States, which acceded to Dominion of India[5]. People of Jammu and Kashmir had no objection to the accession, rather confirmed it on November 17, 1957. Article 370 has been inserted into the constitution mainly due to the distinct position of the Jammu and Kashmir compared to the other states in India. Therefore, regardless of the fact that Jammu and Kashmir is a part of India, there are several differences in certain aspects.
- Implications of the Accession:
Sheikh Abdullah was an influential persona. When Jawaharlal Nehru held the prime ministerial post, he said Gopal Swami Ayyangar—the former Diwan of Maharaja Hari Singh and first cabinet minister without portfolio—to consult the influential person ‘Sheikh Abdullah’ for drafting Article 370 of the Indian Constitution.[6] Additionally, the State of Jammu and Kashmir had a separate flag for itself along with the Indian flag and with status equal to that of the latter.
The chairman of the Drafting Committee of the Indian Constitution—Dr B R Ambedkar had himself expressed his refusal on incorporating Article 370 in the Indian Constitution.[7] Briefly, the Instrument of Accession had not only caused the state of Jammu and Kashmir to become an integral part of India, but it caused the state to become an autonomous state in India. In other words, it led to the incorporation of Article 370 in the Indian Constitution, and the same led to the insurgency in the state. Separatists and some other groups have jumped in to support Pakistan’s claim that the Kashmir continues to be an unfinished business of partition, and the solution should be found based on the aspirations of the people of the state. Election rigging in 1987, the role of ISI in supporting the Kashmiri separatists by providing logistic support and arms, and Mujahideen influence in Kashmir are all the repercussions at the political level.[8] Also, some militant groups or Kashmir insurgents demanded secession from India, thereby creating an internal security issue in India. While some advocated the idea of secession, the territorial conflict, on account of UN mediation in 1949, resulted in drawing ceasefire line or de facto boundaries of the state. Consequently, the ceasefire line demarcates the de facto borders of Kashmir between India and Pakistan.[9] Every successive government could not resolve to date the existing conflicts created by Nehru.[10]
The Instrument of Accession could never be altered due to clause 5 thereof, which reads as “The terms of this instrument of accession shall not be varied by any amendment of the Act or of the Indian Amendment Act, 1947 unless such amendment is accepted by me by an Instrument supplementary to this Instrument”.[11]
Gopal Swami Ayyangar put forth his arguments on Article 306-A, which was part of the draft constitution. He argued that the nature of the constitution of Jammu and Kashmir should be decided by its people, and the integration of all the states, other than the state of Jammu and Kashmir, has been made in such a manner that their Constituent Assemblies have embraced the constitution drafted for India in entirety. Nevertheless, the case related to Kashmir is different due to the special circumstances in that state.[12]Finally, this occasioned the incorporation of Article 370 in the Indian Constitution.
- Article 370 of the Indian Constitution
Part XXI of the Indian Constitution deals with Temporary, Transitional and Special Provisions. In light of the same, Article 370 of the Indian Constitution is a temporary provision which does not enjoy the permanent status like provisions in other parts of the Constitution.[13]All the other princely states which acceded to the Union of India did not object in accepting the Indian Constitution[14]; however, the representatives to the Constituent Assembly from Jammu and Kashmir said that the provisions in the Indian Constitution, which were in correspondence to those in the Instrument of Accession, should alone be made applicable or put into effect so far as the state of Jammu & Kashmir is concerned.[15]
The text of Article 370 of the Indian Constitution is as follows:
- Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything contained in this Constitution, —
- the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;
- the power of Parliament to make laws for the said state shall be limited to—
- 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
- such other matters in the said Lists as, with the concurrence of theGovernment of the State, the President may by order specify.
Explanation: For the purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.[1][10][b]
(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 (1) or in the second provision 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.
- Significance of Article 370 in the Indian Constitution
Sheikh Abdullah wanted pluralism to prevail in India, and he preferred acceding to India during the partition.[16] Removal of Article 370 might culminate in the situation which prevailed at the time of partition, or in other words, the issue of Kashmir’s accession to India.[17] The State of Jammu and Kashmir acceded to India because the then constituent assembly embraced the accession on account of granting special status to the state, as reflected by Article 370 of the Indian Constitution.[18]
The demographics of the state have completely changed since 1948. In spite of the state being an inherent part of India, Pakistan through tribal invasion illegally occupied a part of the statein October 1947.[19]The power of the Union Government to legislate for Jammu and Kashmir was diluted because of Article 370. Apart from defence, foreign affairs and communication area, the Union Government, without the concurrence of the state legislature of the Jammu and Kashmir, could not legislate as it does for the other states on items specified in the Union List.[20]
Prior to the birth of the Indian Constitution, there was a proposal to draft the constitution for the states as well as for the Union of states without any conflicts between them. However, only the Saurashtra States Union, Travancore-Cochin, Mysore instituted constituent assemblies, and other states were procrastinating the process of instituting constituent assemblies.[21] The Conference of the Premiers, constrained by the crawling process of instituting constituent assemblies in the states, made a proposal to get the state constitutions drafted by the constituent assembly of India; however, Jammu and Kashmir was the only the state to deny this proposal, rather the state desired to draft its constitution by itself.[22]
The former Prime Minister Jawahar Lal Nehru pointed out that Article 370 had faded, and the state of Jammu and Kashmir became an integral part of India with no doubt.[23] The political players persistently exploited the situation in Kashmir, either by promising to repeal Article 370 or restoring the Prime Ministerial position in the state of Jammu and Kashmir.[24]A temporary provision could not remain as a permanent provision in the disguise of the incongruity of the state legislature, nor could the state government make the article permanent by dissenting its abrogation.
Further, the court held that Article 370 of the Indian Constitution did not cease to operate despite the dissolution of the constituent assembly, and the legislative history is reluctant to proclaim that the dissolution of the constituent assembly would terminate the existence of Article 370 of the Indian Constitution.[25]In light of the situation at the time of signing the IOA, the division bench of the High Court comprising Justice Hasnain Masoodi and Justice Raj Kotwal observed that the state of Jammu and Kashmir held with itself the limited sovereignty, and did not accede to the dominion of India like other princely states.[26]
- Abrogation of Article 370
Abrogation of Article 370 might have culminated in holding a plebiscite in the state of Jammu and Kashmir. According to Rajiv Dhavan, a constitutional expert, abrogation of Article 370 would put the relationship between the state of Jammu Kashmir and India in jeopardy. Shanthi Bhushan, on the other side, claimed article 370 to be a part of the basic structure of the Constitution; therefore, it could not be amended.[27] Whether Article 370 of the constitution could be abrogated without the concurrence of the state was a complex question. There wasa discriminatory angle to the said article since it violated not just the concept of equality, but sovereignty and secularism in the nation. By virtue of Article 370 and 35A, Indian Citizens could acquire properties and get settled in the other parts of India, whereas the Indian citizens in the other regions of India could not do the same in the state of Jammuand Kashmir.[28]In addition to the above, the factors such as dual citizenship for Indian citizens in Kashmir, separate flag and constitution for the state persistently reflected discrimination, which was in contravention with Article 14 of the Indian Constitution. Therefore, there was a blatant contravention of equality clause provided in the constitution.
On August 5, 2019, the Union Government struck ceased the operation of Article 370 in the Indian Constitution through a presidential notification. Although both the High Court of Jammu and Kashmir and the Supreme Court held Article 370 as permanent in nature, the abrogation of the said article did not contravene the judgement. Every Judgement has to be understood in the context of facts and circumstances of a particular case.
The President has not travelled beyond his power; in other words, the presidential notification concerning Article 370 is not ultra vires and unconstitutional. All the powers vested in the state assembly shall vest with the parliament once the presidential rule has been imposed.[29] Literal construction should be adopted to Article 370, whereas the meaning of Article 370 must not be understood in light of Article 367(4)(d) which provides that “Constituent Assembly” must be read as “Jammu and Kashmir Assembly”. The interpretation of one constitutional, provision must not be based on some other constitutional provision as it would mean interpretation overriding the actual meaning of the provision.
Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important.[30]No rule of construction can require that when the words of one part of Statute convey a clear meaning… It shall be necessary to introduce another part of the statute which speaks when with less perspicuity and of which the words may be capable of such construction as by possibility to diminish the efficacy of the first part.[31]
Article 370 explicitly provides that the President may, by public notification, declare that the article would cease to be operative on the recommendation of the Constituent Assembly of the State. In this provision, the constituent assembly must not be read as Jammu and Kashmir Assembly, since the legislative intent for this provision is different. Had the constitutional draftsmen intended to mean constituent assembly as J&K Assembly in Article 370, they would have introduced a similar context and words as used in Article 367 of the Indian Constitution.
A presidential notification under Article 370(3), on the recommendation of the cabinet, or in other words, cabinet resolution could have been passed for repealing the said article. Dr Subramaniam Swamy reiterated his stance that the presidential notification and cabinet resolution, without the parliamentary vote, are sufficient to strike down the article from the Indian Constitution.[32]Clause 2 of Article 370 specifies the necessity to consult the constituent assembly which was dissolved on January 25, 1957. Since there is no constituent assembly, there is no requirement for consultation. The President can pass a notification without any hassle to abrogate Article 370 of the Indian Constitution. Omar Abdullah and Mehbooba Mufti have opined that the ties with India would cease if Article 370 of the Indian Constitution is abrogated.[33]
As positive as it may seem, the implications of abrogation of Article 370 concern the constitutional minds. The presidential orders relating to the state of Jammu and Kashmir, which includes changing of President of the state to Governor, Prime Minister of the state to Chief Minister, an extension of powers of the Supreme Court and Election commission, would be exposed to legal obstacles.[34]Therefore, it was equally necessary for the Union Government to take into consideration these implications before abrogating Article 370 and Article 35A of the Indian Constitution.
- Conclusion
For so many decades, the dispute concerning the state of Jammu and Kashmir has remained unresolved. Repealing of Article 370 and Article 35A, which is merely a temporary provision, by virtue of the power conferred on the president reflect a clear response, which is to build one nation, one flag, one citizenship and one constitution.[35] Without going beyond the tenets of the basic structure of the constitution, and by complying with the constitutional provisions, Article 370 has been abrogated.
In spite of the higher scale of political chaos, the abrogation Article 370 and Article 35A of the Indian Constitution seemed impossible in the beginning, however, the Parliament managed to place the state of Jammu and Kashmir on the same stand as the other states of India. Further, Bifurcation of the State of Jammu and Kashmir into two separate Union Territories—Jammu & Kashmir and Ladakh would enable the central government to exercise necessary control over the state affairs in resolving conflicts, which have been prevailing since the date of accession or any point later. There shall be an effective administration to curb terrorism and promote nationalism among the people of the state. These are certain positive implications which would dilute the political and social chaos in the region.
[1]Instrument of Accession, (Aug. 11, 2019), https://en.wikipedia.org/wiki/Instrument_of_Accession.
[2]Ibid.
[3]Slahuddin Ahmed, Article 370: Diagnosis And Prognosis of The Special Status of J & K,(Aug. 11, 2019), http://www.legalserviceindia.com/article/l248-Article-370.html.
[4]J.N.PANDEY, CONSTITUTIONAL LAW, (Central Law Agency, 54th ed. 2017).
[5]Ibid.
[6]Surbhi Gupta & Shashi Bhushan Ojha, Article 370 of the Indian constitution: A study in specific reference to legal dimensions and implications,INTERNATIONAL JOURNAL OF LAW (Aug. 11, 2019), http://www.lawjournals.org/download/320/4-3-26-501.pdf.
[7]GopalaswamiAyyangar, The Man Trusted by Nehru to Draft Article 370 After Ambedkar’s Refusal, (Aug. 06, 2019), https://www.news18.com/news/india/gopalaswami-ayyangar-the-man-trusted-by-nehru-to-draft-article-370-after-ambedkars-refusal-2258771.html.
[8]Insurgency in Jammu and Kashmir, Wikipedia, (Aug. 11, 2019), https://en.wikipedia.org/wiki/Insurgency_in_Jammu_and_Kashmir.
[9]India: Kashmir, Uppsala Conflict Data Program, (Aug. 11, 2019), https://ucdp.uu.se/#conflict/364.
[10] Sanjeev Nayyar,Everything you wanted to know about the Jammu & Kashmir Problem, (Aug. 11, 2019)https://www.esamskriti.com/essays/pdf/PDF-Everything-know-about-JK-Problem.pdf.
[11]Instrumentof Accession, (Aug.11,2019), http://jklaw.nic.in/instrument_of_accession_of_jammu_and_kashmir_state.pdf.
[12]Statement by GopalaswamiAyyangar (Minister without Portfolio), Constituent Assembly Debates (India) Vol X, (Aug. 11, 2019), https://www.constitutionofindia.net/constitution_assembly_debates/volume/10/1949-10-17?paragraph_number=224%2C155%2C363%2C214%2C526%2C438%2C498%2C551%2C478%2C422%2C435%2C555%2C364%2C553%2C552%2C411%2C397%2C525%2C546%2C405%2C523%2C480%2C477%2C554%2C418%2C407%2C570%25.
[13] Supra 4.
[14]Article 370 of the Constitution of India, WIKIPEDIA, (Aug. 11, 2019) https://en.wikipedia.org/wiki/Article_370_of_the_Constitution_of_India.
[15]Ibid.
[16]Kuldip Nayar, The Importance of Article 370, (Aug. 14, 2019) https://www.thecitizen.in/index.php/en/NewsDetail/index/4/4369/The-Importance-of-Article-370.
[17]Ibid.
[18]Ibid.
[19] Dr Priyanka Singh, Pakistan-Occupied Kashmir: The Future Trajectory,(Aug. 14, 2019),http://www.indiandefencereview.com/news/pakistan-occupied-kashmir-the-future-trajectory/.
[20]Supra 1.
[21]Supra 8.
[22]Ibid.
[23] Rohit Prasad, The repeal of Article 370 would harm the children of Kashmir, (Aug. 15, 2019) https://www.livemint.com/opinion/columns/opinion-the-repeal-of-article-370-would-harm-the-children-of-kashmir-1555530254339.html.
[24]Supra 20.
[25] Sampat Prakash Vs. State of Jammu &Kashmir,A.I.R. 1970 SC 1118 (India).
[26]Ashok Kumar and Ors Vs. State of Jammu & Kashmir and Ors,A.I.R. 2016 J&K 1 (India).
[27]Ibid.
[28]J.G.Arora, Easy way to delete Article 370 and 35A, (Aug.21, 2019), https://www.pgurus.com/easy-way-to-delete-article-370-and-35a/.
[29]Ministry of Home Affairs, Government of India, Notification, (Aug. 21, 2019),http://egazette.nic.in/WriteReadData/2018/194042.pdf.
[30] Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd.,(1987) SCR (2) 1 (India).
[31] St Stephens College v University of Delhi, A.I.R. 1992 1630 (India); Warburton v. Loveland, (1832) [2D.& Cl. 400].
[32]Subramanian Swamy says Article 370 can be abrogated without Parliamentary consent, TFIPOST, (Aug. 21, 2019,)https://rightlog.in/2018/06/swamy-article-370-1/.
[33]Asit Jolly, Why Kashmiris may not be ‘special’ any longer, (Aug. 17, 2019), https://www.indiatoday.in/india-today-insight/story/why-kashmiris-may-not-be-special-any-longer-1542880-2019-06-05.
[34]Megha Mittal, What The Abrogation Of Article 35A Means For The People In Kashmir,(Aug. 29, 2019),https://www.youthkiawaaz.com/2019/06/article-370-a-sword-in-the-war/.
