GENESIS AND NATURE OF ARTICLE 370 OF THE INDIAN CONSTITUTION

“Jammu and Kashmir, the paradise of earth, a poet’s imagination,

which glorify the earth’s beauty with its immortal scenery and divine habitation.

Jammu and Kashmir, the princely dominion of Maharaja Hari Singh,

now being a special part of Indian Constitution.”

 

The Indian Independence Act, 1947 enacted by the British Parliament envisaged the creation of two Dominions namely, Dominion of India and the Dominion of Pakistan.[1] According to this Act, the Rulers of the Indian States had the option to decide the fate of their States i.e., either to accede to India or Pakistan but failing to do so, it could claim the right to remain independent. These were the alternatives which were opened to the State of Jammu and Kashmir.[2] The States acceding to India had to execute Instruments of Accession as envisioned in section 6 of the Government of India Act, 1935.[3]

On 26th October 1947, Maharaja Hari Singh executed the Instrument of Accession and acceded to the Indian Dominion on different subjects. The subjects which were attached to the Instrument of Accession broadly included Military, air and naval forces i.e. the defence services of the State; external affairs, treaties, agreements with other countries; Communications; Election to the State legislature, jurisdiction of all courts with regard to the matter which was against laws with respect to any of the matters transferred to the Dominion of India.[4] These were the subjects in which laws could be legislated by the dominion legislature. According to the Instrument of Accession, the state had reserved powers in regard to all the subjects (except those which were mentioned in the Instrument of Accession) and the nitty-gritty of it could not be changed by any amendment of the Indian Independence Act, until and unless the amendment was acknowledged by the crown of the State. Also, Maharaja Hari Singh agreed to the suggestion made by Gopalaswami Ayangar to form the Interim Government which can put the suggestions for choosing the members of the constituent assembly as in accordance with the Mysore Scheme, but the process of Constitution-making in Jammu and Kashmir was cursed with many obstacles.

Besides the mutable political conditions in the state, prolonged conflict with Pakistan and the possession of a ponderous part of the domain of the state by the invading artilleries of Pakistan, there was deep dissemblance of opinion between the crown and the Interim government in regard to the constitutional setup of Jammu and Kashmir and also the proposed federal relations with India. The Conference leaders considered the Instrument of Accession as a “Paper Accession” and alleged that the real accession had been carried out by the National Conference which they believe, symbolized the people of State. The Conference leaders coveted the transfer of authority of Jammu and Kashmir to the interim Government. After the partition, India was declared as the secular dominion, but the National Conference leader spurned to affirm the secular integration of Jammu and Kashmir in the allied organization of India. The Interim Government on 3rd January 1949, just after two days of the commencement of the cease fire, sent a long memorandum (to compensate the effect of the offer Pakistan’s offer) to the State Minister of the Indian Government, Sardar Patel, which was endorsed by every members of the Interim Government including Girdhari Lal Dogra and Sham Lal Saraf. The memorandum stated that, the Maharaja and the Maharani of the State should exile from India and the forthcoming of the Dogra rule would be arbitrated by the Constituent Assembly of Jammu and Kashmir when it would be mustered. The memorandum further manifested that the Government of India should issue a declaration, which certified the Muslims in the State an internal independence and the future constitutional setup of the State would be fabricated by the Constituent Assembly of Jammu and Kashmir. Also the destination of the State army would be decided by the agreement between the Interim Government and the Central Government, and the accession of the State would be confined to three central subjects’ viz. External affairs, Defence and Communication. The memorandum, when received was rejected by Patel after significant dismay. This made the Conference cadres to spread the rumour that Sardar Patel backs the persistence of the Dogra rule in the State of Jammu and Kashmir. Sheikh Mohammad Abdullah immediately wrote to Nehru that if the demands of the Interim Government were not fulfilled, then the Muslims will not support the accession.  Also, the Conference leaders attacked the Maharaja alleging that he meddle with the functions and working of Interim Government and also hindered the political and economic reforms which were proposed to bring in the State. This led the Indian leaders to organise a meeting in Delhi in which Jawaharlal Nehru, Sardar Patel, Maulana Azad and Gopalaswamy Ayangar were present. The meeting was arranged to mull the issues raised by the Conference leaders. It was decided by the Indian leaders that, Maharaja should leave the state provisionally with Maharani and he should vest his power to his son Yuvraj Karan Singh. It was also concluded that, the forthcoming of the Dogra rule would be decided by the Constituent Assembly of the State when it would be convened. On 16th April 1949, Nehru met Sheikh Abdullah and discussed about the issues which were raised by the Conference leaders. Nehru also pointed the decision made by the Indian leaders in this regard. Nehru on 17th of April 1949 wrote to Sardar Patel and informed him about the meeting and asked him to advise Maharaja to leave the state for sometime which was as decided earlier by the Indian leaders. Since there was an open conflict going on with the adherents of the Maharaja and the supporters of Sheikh Abdullah, Nehru told Patel to put the matter to Maharaja and ask him to come to Delhi for this purpose. But, suddenly in a press statement by Sheikh Abdullah to the English newspaper “Scotsman” gave a rude jolt to the Indian Leaders. He stated that “Accession on either side cannot bring peace. We want to live in friendship with both Dominions. Independent Kashmir must be guaranteed not only by India and Pakistan, but also by Britain, the United States and other members of the United Nations.” He also further added in his statement that “When during the crisis India accepted the Maharaja’s accession, Pandit Nehru insisted that it was only provisional and the people must decide later.”[5] Gopalaswami Ayangar asked Dwarka Nath Kachru, personal secretary to Nehru, to check in to Srinagar and inform Sheikh Abdullah about the refusal of his statement by him. Kachru was treated disrespectfully by Sheikh Abdullah in Srinagar. Also, Sheikh Abdullah refused to withdraw his statement made in the ‘Scotsman’ when Kachru asked him to do so.

Here at Delhi, Sardar Patel sent a fresh letter to Maharaja asking him to come to Delhi as early as possible without making any delay. After receiving the letter, Hari Singh along with Maharani Tara Devi hasty down to Delhi and met Sardar Patel n 29th April, 1949.  Patel informed Maharaja that Government of India would like him and Maharani to stay away from the state for some time and appoint his son as the Regent of the State as this would be in the better interest of the State as well as India because convolution was aroused from the plebiscite proposal but Patel ensured Maharaja that his stay outside the State will be temporary and not permanently. Hari Singh after the meeting wrote back to Sardar Patel that he is very upset with the proposal but trusting the judgment, he is ready to absent himself from the state for some time but this should not be treated as abdication, and also Sheikh Abdullah should be clearly asked to halt the campaign against him. Sardar Patel repeated the assurance he had given to Maharaja and further added that the constitutional organisation of the State would be decided by the Constituent Assembly of Jammu and Kashmir, which would be duly elected.

After the complete removal of Maharaja and Maharani from the State, the Conference leaders were invited to Delhi to compromise with the Indian leaders with regard to the constitutional organisation of the State and its position in the future organisation of the state. As a result of which a conference was organised in Delhi in May 1949. The contemplation of the conference covered maximum aspects of the constitutional organisation of the State and the relations between the State and the Central. The agreement reached with Maharaja was informed to the National Conference leaders by Nehru. Nehru told the Conference leaders that a Constituent Assembly would be convened in the State which would destine the future of the Dogra rule and put up a Constitution for the State government. Nehru put forward the idea of inclusion of Jammu and Kashmir in the constitutional organisation of India with such modification as would suit the specific historical and political antecedents of the State. He proposed the application of fundamental rights, directive principles of state policy and the federal judiciary to the State as instituted under Constitution of India. He further proposed that the subjects included in the Central list of the Constitution of India should be under the Union jurisdiction to the State. The Conference leaders welcomed the proposal that the future of Dogra rule and the constitution of the State would be put by the constituent assembly but they never appreciated the other proposals which were made by Nehru. The conference leaders then put their own demands in front of the Indian leaders which included a separate Constituent Assembly based on Universal adult franchise to draw up the Constitution of the State; abolition of Dogra rule and the Chief Executive who would be nominated by the Interim Government would replace the Maharaja; the powers of Maharaja as well as the reserved powers of Maharaja would be transferred to the Interim Government; the inherent relations between the State and the Union would be limited as stipulated by the Instrument of accession unless until Interim Government specifies any modifications; the residuary powers would be vested with the government of Jammu and Kashmir; other provisions of Constitution of India except those which are specified under Instrument of Accession would not apply to the state; the State Government would restore the control over State army and the continuance of the existing financial relations between the state and the Union. These demands were forwarded by the Conference leaders but the central leaders did not approve these demands. Central leaders exhorted upon the practice of the provisions of the Indian Constitution with respect to the territorial jurisdiction of the Union, Citizenship, fundamental rights, federal judiciary and the principles of State policy. Also, Nehru appealed for the organisation of a uniform bill of rights and safeguards for all the individuals including the public residing at Jammu and Kashmir. He further articulated the operation of the principles of the state policy which the Indian Constitution would envisage in the State of Jammu and Kashmir.

The dispute between the Conference leaders and the Central leaders in regard to the State army was not accepted by later because the Central Government had the exclusive power over the defence forces as according to the Instrument of Accession. Nehru certified the Conference leaders that the Muslims of Jammu and Kashmir would not be discriminated in the recruitment of State army as all the people in India including the people of Jammu and Kashmir would enjoy the equality of opportunity pledged by the Indian Constitution. Finally both the Central and the Conference leaders reached into an agreement which contemplated that the provisions of the Indian Constitution with regard to the State Government would not apply to Jammu and Kashmir; the constituent assembly which would represent the people of the State would frame the Constitution of Jammu and Kashmir and the assembly would decide the future of the Dogra rule in Jammu and Kashmir; the jurisdiction of centre would only extend to the subjects which was mentioned in the Instrument of Accession and if necessary, it will be the Constituent Assembly which would determine other subjects which  would be transferred to the State; the administrative and the operational control of the state army would be vested with the Indian army; On the recommendation of the Constituent Assembly, the Indian President could modify or quash certain specific provisions of Indian Constitution with regard to Jammu and Kashmir; the provisions of Indian Constitution regarding the jurisdiction of the Union, legal safeguards, Citizenship, fundamental rights, principles of State policy and the jurisdiction of the federal judiciary would apply to the State, subject to the modifications that the provisions would not impinge upon the special domiciliary rights in force in the State and the economic reforms the Interim Government would undertake.[6]

A Day after the Delhi Conference, Conference leader, Sheikh Abdullah delivered a long note to Nehru asking elucidation on certain issues which was settled between them. The note agitated Nehru and he then wrote back to Abdullah in which he clarified all the issues. Nehru roamed to Srinagar in the last week of May and discussed with Sheikh Abdullah and other Conference leaders. The administrative control of the State army during the emergency, the segmentation of powers between the Dominion Government and the Government of Jammu and Kashmir, and the future of the Constitution of Jammu and Kashmir were the disquieting issues raised by the Conference leaders. Nehru then stabilized the Conference leaders that the constitution of Jammu and Kashmir would only be drafted by the representatives of the states i.e. the Constituent Assembly and also ensured the Conference leaders that the Constituent Assembly will decide the coming days of ruling dynasty. Nehru further stated that the division of powers between the Government of India and the Government of Jammu and Kashmir would be done under the provisions of the Instrument of Accession. Nehru explained the conference leaders that the Constitution of the State cannot vest powers regarding the instruments which it did not create. Nehru explicated to the Conference leaders that the Constitution of the State cannot vest powers in the Government of India, which the Indian Constitution did not defined.

Nehru told Sardar Patel to inform Maharaja about the terms of the agreement which was settled between the Central and the Conference leaders. He also acquainted Sardar Patel to direct Maharaja and Maharani to leave the State for some month as it was a private promise by Central leaders to the Conference leaders. Meanwhile, the Interim Government proposed four members to represent the State in the Constituent Assembly of India. These names were referred to Maharaja to give his consent. Maharaja then delegated the members to the Constituent Assembly in May, 1949. The members joined the Assembly on June 6th, 1949 and on June 9th 1949, Maharaja broadcasted his verdict to depart from the State and the nomination of Yuvraj Karan Singh as the Regent of the State.

The Conference leaders who gained imperforate control over the State Government began to bail out themselves from the agreement, which was settled between them and the Central leaders. They set in motion private meetings which were presided by the Muslim members only. Muslim dignitaries and state officers who were antithetical about the accession of the State were cordially invited to present at the meetings and conferences. The Conference leaders which included Sheikh Mohammad Abdullah, Mirza Afzal Beg and Mulana Masoodi who had bargained the agreement with the Central leaders in May at Delhi, agreed to the opinions which were raised in the meetings. Jammu and Kashmir should not be brought within the territories of designed India or its organization and the basis of the relations between the State and the dominion of India would be the Muslim majority character, were the significant outcomes of such secret meetings. The Conference leaders then decided to banish the agreement they had settled with the Central leaders and educed a new layout which they claimed would form the basis of constitutional relationship between the State and the Indian dominion. The new layout accentuated that Jammu and Kashmir would not be brought within the territories of designed India or its organization; the constitutional relations between Jammu and Kashmir and the proposed dominion of India would be based on the provisions of Instrument of Accession; after the reorganization of the defence forces, the administrative power over the State defence would be brought back to the State; the current constitutional relationship between Jammu and Kashmir and the Indian dominion cannot be changed and modified even  by the Constituent Assembly of the State; the Constitution of Jammu and Kashmir would be framed by the Constituent Assembly, which would foresee provisions reckoning the excellence of judicial review, the magnitude of individual freedom and legal safeguards, directive principles of the State policy and election to the representative bodies.

These points were not informed to the union leaders till the draft provisions of the Indian Constitution were framed and dispatched to the Conference leaders for their consent. The draft provisions were based on the agreement between the Conference leaders and the central leaders and it was placed in draft Article 306-A of the Indian Constitution. The Article specified that the provisions of the Indian Constitution concerning Part B States would not be implemented to the State of Jammu and Kashmir; a Constitution Assembly would be congregated in Jammu and Kashmir to frame its Constitution; provisions of Indian Constitution germane to Indian territories, citizenship, fundamental rights and the directive principle of the State policy would be exercised to Jammu and Kashmir; the auxiliary provisions of the Indian Constitution would be implemented to the State with exception as were mutually settled between the Indian Government and the Government of Jammu and Kashmir; the Central Government would bestow powers concerning to the subjects, which were specified by the Indian President to agree with the subjects transplanted to the Indian Government by the virtue of Instrument of Accession, in consultation with the Jammu and Kashmir State Government, and the other subjects as it would be described by the President of India in concurrence with the Government of the State; On the authorization of the Constituent Assembly of the State, the Indian President would be  legitimize to modify, restrict or suspend the working of the provisions of Article 306-A.

The committee of the Conference leaders rejected the preamble to Article 306-A and some of its provisions. The working committee rejected the provision of Article 306-A regarding citizenship, fundamental rights and legal safeguards because they feared that the implementation of provision would prejudice the domiciliary State-Subjects Rules[7] astir in Jammu and Kashmir. The committee also rejected that the constitutional provisions concerning the State would be of transitional nature. These decisions of the working Committee were conveyed to Gopalaswami Ayangar on October 12, 1949 by Sheikh Mohammad Abdullah. He also advanced the surrogated draft to Ayangar, which stipulated the implementation of only such provisions of the Indian Constitution which was provided in the Instrument of Accession. Gopalaswami Ayangar was surprised when he received the decisions of the working committee.

On 14th October 1949, Gopalaswami Ayangar, in a long meeting with Mirza Afzal Beg and Sheikh Abdullah, tried to influence them to give their consent to the draft provisions of Article 306-A, but everything was in vain as the Conference leaders stuck with their demands. Sheikh Mohammad Abdullah reminded Ayangar that the State of Jammu and Kashmir was acceded to Indian Dominion in regard to three subjects only i.e. foreign affairs, defence and communications, and the people of Jammu and Kashmir supported the accession only on that particular understanding. The meeting was ended without any conclusion. Meanwhile, Nehru was not present in the India, so, Gopalaswami Ayangar amended the provisions of Article 306-A, constricting the implementation of the Indian Constitution to the State to Article 1[8], and the provisions belonging to the citizenship of India, fundamental rights and constitutional safeguards. Ayangar then wrote a letter to Sheikh Abdullah and attached the new draft of Article 306-A. In his letter to Abdullah, Ayangar stated that if Sheikh Abdullah desires to have any additional elucidation, he could come up to him and discuss the issue frankly. He also stated that, if the Conference leaders agree to the amended draft, then he would ask the Drafting Committee to substitute the previous draft provisions of Article 306-A. Ayangar acquainted Sardar Patel about the same. In response to it, Sardar Patel wrote back to him and criticized the amendments done by him to the draft provisions of Article 306-A. Ayangar felt a jolt when the amended draft of Article 306-A, was denied by the Conference leaders. Sheikh Abdullah in his letter to Ayangar attached the alternative draft which accentuated that the provisions of Indian Constitution which corresponded to the provisions of the Instrument of Accession would be implemented to the State and the other provisions would apply to Jammu and Kashmir with the consent of the Interim Government. In the meantime, Afzal Beg provided the Constituent Assembly the notice of an alteration in Article 306-A, which desired the application of the Indian Constitution to the provisions of Instrument of Accession. Ayangar then again met the Conference leaders and tried to allure them to give their consent to the revised draft but, the Conference leaders did not agreed.

At last, a fresh draft was outlined by Goplaaswami Ayangar in consultation with Afzal Beg, a Conference leader appointed by Sheikh Abdullah to arbitrate with Ayanger. The new draft stipulated that Article 1 of the Indian Constitution would be implemented to Jammu and Kashmir and it would be embodied in the territories of Indian dominion; without the consent of the Interim Government, no provisions of the Indian Constitution would be implemented on the State; the separation of powers between the Central and the State Government would be certified with the provisions of Instrument of Accession; On the approval of the Constituent Assembly of Jammu and Kashmir, the Indian President would be empowered to abolish or alter the operation of provisions of the Constitution with regard to the State; the Government of Jammu and Kashmir would be deduced to mean the Maharaja working on the recommendation of the Council of Ministers delegated under his announcement dated 5 March 1948 . This draft of Article 306-A was spread in the Constituent Assembly on 16th of October, 1949. The draft arose in the Constituent Assembly the following day. Many members criticized the elucidation defining the State Government. Ayangar explained the revised draft to the Constituent Assembly with certain modification but the modifications were not approved by the Conference leaders. Although, Ayangar was unable to convince them to condescend to the changes which he had done in the draft provisions, he presented the fresh draft of Article 306-A to the Constituent Assembly for their contemplation but, the Conference leaders did not accompany the debate and examined the proceedings in grim dumbness. Also, the President of the Constituent Assembly paused for some time for the conference leaders to put forward their views but they did not rouse to the occasion and move any amendment to the draft. The fresh draft was affirmed by the Constituent Assembly without any disaccord.

The Conference leaders were not pleased with the way event had taken. Sheikh Abdullah wrote a confutation to Ayangar appealing him to reassess the resolution reached by the Constituent Assembly on Article 306-A. He informed Ayangar that if that would not happen, he along with other representatives of the Jammu and Kashmir would resign from the Constituent Assembly. Ayangar was hurt when he received the letter. He then decided not to go further to satisfy the Conference leaders. Ayangar then responded to Abdullah and informed him that no further amendments could be done to the accepted draft. He also informed to Abdullah, that, he and his members could resign if they wanted to, but cautioned them that, it would create serious reverberation in Jammu and Kashmir, India and also the world. He advised Sheikh Abdullah to communicate with Pandit Nehru before deciding anything.

After rectification, Article 306-A was commemorated as Article 370 of the Indian Constitution. On 25th November 1949, Karan Singh, the Regent of the State, declared that the alliance between the State and the dominion of India would be administered by the Indian Constitution. In accordance with the announcement by Karan Singh, all the laws inconsistent with the Indian Constitution were antiquated and abrogated. The Indian Constitution came into force on 26 January, 1950.

Article 370 of the Indian Constitution clearly recognises the distinctive position of the State of Jammu and Kashmir and Article 370 makes Article 1 of the Constitution which defines the territory of the Union, and Article 370 itself, applicable to the State at once.[9] The state of Jammu and Kashmir is special as it has a much greater autonomy and power, and the Centre’s jurisdiction within the state is more limited than what it has with respect to other States. [10] Article 370(1)(b) limits the power of Parliament to make laws for Jammu and Kashmir to the following:

  • Those matters in the Union List and the Concurrent List which, in consultation with the State Government, 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 the State; and Such other matters in the said List as, with the concurrence of the Government of the State, the President may by order specify.[11]

Article 370(1)(d) of the Constitution specifies that the other provisions of the Constitution, besides the above, can be exercised to the State with or without modifications by order of the President. Such an Order cannot be issued by the President

  • Without consulting the State Government if the matters described in the Order   are related to those mentioned in the Instrument of Accession and also without the concurrence of the State Government if the matters to be specified in the Order relate to matters other than those mentioned in the Instrument.[12]

The word “modification” specified in the Constitution is to be given widest amplitude but the power to ‘modify’ is co-extensive with the power to amend and is not confined to minor alterations only. Supreme Court of India has also refused to interpret the word “modification”.

 

The Supreme Court observed on this point:

“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 modification as do not make any “radical transformation”[13].

Also, President can customize a constitutional provision not only when it is implemented to the State for the maiden time, but even subsequently after it has been applied.[14]

Article 370(2) provided that if the Government of the State gave its unanimity before the State Constituent Assembly, “it shall be placed before such Assembly for such decision as it may take on”[15]. As there is no existence of Constituent Assembly, Article 370(2) has exhausted itself. Due to these specialities, not all the provisions of the Indian constitution apply to the state, some provisions applies, some don’t and many applied in modified form.

Till today, Pakistan desires that a plebiscite should take place which would adjudicate the future of Jammu and Kashmir. Pakistan ingeniously raises the issue of plebiscite every now and then, as it was proposed by Pandit Nehru in the UN Security Council way back in the year 1948, which did not happen till date. In response to it, Union of India states that the regular elections are conducting in the State and the people residing there have no issues regarding the plebiscite. They are mutually acceded to the dominion of India and thus, no dispute in accordance to plebiscite should be raised by the neighbouring country.

 



[1] The Constitution of Jammu and Kashmir, Prof. Sharma S.K., Universal Law Publishing Co. Pvt. Ltd, 2011 Edition, Pg. 3

[2] Ibid. Pg. 4

[3] Government of India, White Paper on Jammu and Kashmir, 4 (1948)

[4] Instrument of Accession of Jammu and Kashmir

[5] Kashmir Article 370, Mohan Krishen Teng, http://ikashmir.net/article370/index.html

[6] Kashmir Article 370, Mohan Krishen Teng, http://ikashmir.net/article370/index.html

[7] The State Subject rules imposed restrictions on people who were not state subjects in respect of immovable property in the State, state services, and other rights, which were available to the state subjects.

[8] Which defined the territories of India

[9] Indian Constitutional Law, Jain M.P., Sixth edition reprint 2012, Pg. 854

[10] Id.

[11] Ibid. at 855

[12] Ibid.

[13] Puranlal Lakhanpal v. Union of India, AIR 1961 SC 1519, 1521

[14] Sampat Prakash v. State of Jammu and Kashmir, AIR 1970 SC 1118

[15] Article 370(2) of the Indian Constitution.

By:- Sudhanshu Shekhar

Dr. RML National Law University, Lucknow

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