Jammu & Kashmir - Article 370
Article 370 (though originally Article 306-A) of constitute of India conferring Special Status upon State of Jammu and Kashmir reads as follows:
“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 far 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.
For the purposes of this article, the Government of the State means the person for the time being recognized 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 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 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.
In exercise of the powers conferred by Article 370 the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that as from the 17th Day of November, 1952, the said Article 370 shall be operative with the modification that for the Explanation in Cl (1) thereof, the following explanation is substituted namely.
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.”
It would be thus clear that while the State was deemed in Art. 1 of the Indian Constitution to be an integral part of the Indian Union, it was given a special status by means of a temporary provision, which in fact limited the powers of the Indian Union Parliament thereto three matters specified in the Instrument of Accession governing the accession of the state to the dominion of India, namely defence, external affairs and communications.
2) The Delhi Agreement:-
The J&K Constituent Assembly was constituted and S. M. Abdullah addressed it on Nov. 5, 1951. Things didn’t end here. The State-Centre relationship talks moved further resulting into the famous Delhi Agreement on July 24, 1952 that runs as follows:
The Delhi Agreement 1952
i) In view of the uniform and consistent stand-taken up by the Jammu and Kashmir Constituent Assembly that sovereignty in all matters other than those specified in the Instrument of Accession continues to reside in the State, the Government of India agreed that, while the residuary powers of legislature vested in the Centre in respect of all the states other than Jammu and Kashmir, in the case of the latter they vested in the State itself;
ii) It was agreed between the two Governments that in accordance with Article 5 of the Indian Constitution , persons who have their domicile in Jammu and Kashmir shall be regarded as citizens of India but the State legislature was given power to make laws for conferring special rights and privileges on the ‘state subjects’ in view of the ‘State Subject Notification’ of 1927 and 1932: the State legislature was also empowered to make laws for the ‘State Subjects’ who had gone to Pakistan on account of the communal disturbances of 1947, in the event of their return to Kashmir;
iii) As the President of India commands the same respect in the State as he does in other Units of India, Article 52 to 62 of the Constitution relating to him should be applicable to the Stat. It was further agreed that the power to grant reprieve, pardons and remissions of sentences etc.; would also vest in the President of India;
iv) The Union Government agreed that the State should have its own flag in addition to the Union flag, but it was agreed by the State Government that the State flag would not be a rival of the Union flag; it was also recognized that the Union flag should have the same status and position in Jammu and Kashmir as in the rest of India, but for historical reasons connected with the freedom struggle in the State, the need for continuance of the State flag was recognized;
v) there was complete agreement with regard to the position of the Sadar-i-Riyasat; though the Sadar-i-Riyasat was to be elected by the State Legislature, he had to be recognized by the President of India before his installation as such; in other Indian states the Head of the States was appointed by the President and was as such his nominee but the person to be appointed as the Head, had to be a person acceptable to the Government of that State; no person who is not acceptable to the State Government can be thrust on the State as the Head. The difference in the case of Kashmir lies only in the fact that Sadar-i-Riyasat will in the first place be elected by the State Legislature instead of being a nominee of the Government and the President of India. With regard to the powers and functions of the Sadar-i-Riyasat the following argument was mutually agreed upon:
a) The Head of the State shall be a person recognized by the President of the Union on the recommendations of the Legislature of the State;
b) He shall hold office during the pleasure of the President;
c) He may, by writing under his hand addressed to the President, resign his office;
d) Subject to the foregoing provisions, the Head of the State shall hold office for a term of five years from the date he enters upon his office;
e) Provided that he shall, notwithstanding the expiration of his term, continue to hold the office until his successor enters upon his office.”
vi) With regard to the fundamental rights, some basic principles agreed between the parties were enunciated; it was accepted that the people of the State were to have the fundamental rights. But in the view of peculiar position in which the state was placed in particular Sheikh Abdullah’s land reforms programmes, the whole chapter relating to “Fundamental Rights” of the Indian Constitution could not be made applicable to the State, the question which remained to be determined was whether the chapter on fundamental rights should form apart of the State Constitution or the Constitution of India as applicable to the State;
vii) With regard to the jurisdiction of the Supreme Court of India, it was accepted that for the time being, owing to the existence of the Board of Judicial Advisers in the State, which was the highest judicial authority in the State, Supreme Court should have only appellate jurisdiction;
viii) There was a great deal of discussion with regard to the “Emergence Powers”. The Government of India insisted on the application of Article 352 , empowering the President to proclaim a general emergency in the State ; the State Government argued that in the exercise of its powers over defence ( Item1 on the Union List), in the event of war or external aggression , the Government of India would have full authority to takes steps and proclaim emergency but the State delegation was, however , averse to the President exercising the power to proclaim a general emergency on account of internal disturbance.
In order to meet the viewpoint of the State’s delegation, the Government of India agreed to the modification of Article 352 in its application to Kashmir by the addition of the following words;
“But in regard to internal disturbance at the request or with the concurrence of the government of the State”
At the end of clause (1)
Both the parties agreed that the application of Article 356, dealing with the suspension of the State Constitution and Article 360, dealing with financial emergency, was not necessary.”
Under this agreement, the J&K State was given a special status under the Indian Constitutional frame work (Article 2 of the Constitution itself). Consequently, the Constituent Assembly elected Yuvraj Karan Singh as the first Sadar -i- Riyasat on Nov. 15, 1952, thus bringing to an end the 106 years old hereditary Dogra rule in the J&K State.
A serious opposition to S. M. Abdullah had developed in Jammu under the Praja Parishad, which launched a political movement with Shri Prem Nath Dogra as its leader. Dr. Syama Prasad Mukherjee was the President of Jan Sangh Party at the national level who commented that there was, or would soon be, “two Constitutions, two flags and two Prime Ministers in one country and cannot be tolerated”. The State Praja Parishad, Jan Sangh and R.S.S. joined their hands together and advocated the abolition of Article 370 of Indian Constitution.
In Nov. 1952, the Praja Parishad leader, Shri Prem Nath Dogra and his close associate Shri Sham Lal were detained. So, the situation in Jammu grew tense within the spring of 1953 and Dr. Mukherjee supported agitation outside the State and in May 1953, he left for Jammu but was arrested by I.G.P. Kashmir at State border (Lakhanpur/Kathua) on May 11, 1953 and taken to Srinagar in custody. Unfortunately Dr. Mukherjee died in the Govt. Hospital, Srinagar on June 23, 1953. The popular slogans of the Praja Parishad agitators were – “ek desh mein do vidhan; ek desh mein do nishan; ek desh mein do pradhan nahi chalen gay” (in one country , two Constitutions; in one country two flags , in one country two Prime Ministers will not be tolerated).
The unresolved issues indicated in the Delhi Agreement could not be taken care of due to dismissal of Sheikh Govt. on Aug.9, 1953 and installation of Sh. Bakshi Ghulam Mohd as the new Prime Minister of J&K State. With the passage of time, The Constitution (Application to Jammu and Kashmir) Order, 1954 was promulgated by the President of India in consultation with the Government of J&K, regulating the constitutional status of the State; and apart from it several Central laws got extended to the J&K State and even the nomenclature of Sadar-i-Riyasat and Prime Minister were changed to Governor and Chief Minister on March 30, 1965.
Despite of continuous efforts by various political parties, Art. 370 of the Indian Constitution could neither be made permanent nor abolished, so it continues to be as such in the Indian Constitution with J&K having its own Constitution and State flag and resulting into non-application and non-extension of Central laws without approval of the State Legislature.
b) Law and politics
While the Constitution recognises in Article 370 the special status of Jammu and Kashmir, the Central Government's policies since 1953 have totally undermined its autonomy. Senior lawyer and political analyst A.G. NOORANI discusses both aspects and suggests a way out of the mess.
"I say with all respect to our Constitution that it just does not matter what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion..."
"We have fought the good fight about Kashmir on the field of battle... (and) ...in many a chancellery of the world and in the United Nations, but, above all, we have fought this fight in the hearts and minds of men and women of that State of Jammu and Kashmir. Because, ultimately - I say this with all deference to this Parliament - the decision will be made in the hearts and minds of the men and women of Kashmir; neither in this Parliament, nor in the United Nations nor by anybody else," Jawaharlal Nehru said in the Lok Sabha on June 26 and August 7, 1952.
- Selected works of Jawaharlal Nehru, Vol. 18, p. 418 and
vol. 19 pp. 295-6, respectively.
"From 1953 to 1975, Chief Ministers of that State had been nominees of Delhi. Their appointment to that post was legitimised by the holding of farcical and totally rigged elections in which the Congress party led by Delhi's nominee was elected by huge majorities."
- This authoritative description of a blot on our record which most overlook was written by B. K. Nehru, who was Governor of Kashmir from 1981 to 1984, in his memoirs published in 1997 (Nice Guys Finish Second; pp. 614-5).
THOSE who cavil at Article 370 of the Indian Constitution and the "special status" of Kashmir constitutionally ought to remember the "special" treatment meted out to it politically. Which other State has been subjected to such debasement an d humiliation? And, why was this done? It was because New Delhi had second thoughts on Article 370. It could not be abrogated legally. It was reduced to a husk through political fraud and constitutional abuse. The current debate is much more than about restoration of Article 370 by erasing the distortions. It is about redressing a moral wrong.
The United Front government's minimum programme, published on June 5, 1996, said "respecting Article 370 of the Constitution as well as the wishes of the people, the problems of Jammu and Kashmir will be resolved through giving the people of that State t he maximum degree of autonomy."
Constitutional abuse accompanied political fraud. Article 370 was intended to guarantee Kashmir's autonomy. On December 4, 1964, Union Home Minister G. L. Nanda said it would be used to serve as "a tunnel (sic.) in the wall" in order to increase the Cent re's power.
The State was put in a status inferior to that of other States. One illustration suffices to demonstrate that. Parliament had to amend the Constitution four times, by means of the 59th, 64th, 67th and 68th Constitution Amendments, to extend the President's Rule imposed in Punjab on May 11, 1987. For the State of Jammu and Kashmir the same result was accomplished, from 1990 to 1996, by mere executive orders under Article 370.
Another gross case illustrates the capacity for abuse. On July 30, 1986, the President made an order under Article 370, extending to Kashmir Article 249 of the Constitution in order to empower Parliament to legislate even on a matter in the State List on the strength of a Rajya Sabha resolution. "Concurrence" to this was given by the Centre's own appointee, Governor Jagmohan. G.A. Lone, a former Secretary, Law and Parliamentary Affairs, to the State Government described in Kashmir Times (April 20 , 1995) how the "manipulation" was done "in a single day" against the Law Secretary's advice and "in the absence of a Council of Ministers."
The Nehru-Abdullah Agreement in July 1952 ("the Delhi Agreement") confirmed that "the residuary powers of legislation" (on matters not mentioned in the State List or the Concurrent List), which Article 248 and Entry 97 (Union List) confer on the Union, w ill not apply to Kashmir. The order of 1986 purported to apply to the State Article 249, which empowers Parliament to legislate even on a matter in the State List if a Rajya Sabha resolution so authorizes it by a two-thirds vote. But it so amended Article 249 in its application to Kashmir as in effect to apply Article 248 instead - "any matter specified in the resolution, being a matter which is not enumerated in the Union List or in the Concurrent List."
The Union thus acquired the power to legislate not only on all matters in the State List, but others not mentioned in the Union List or the Concurrent List - the residuary power. 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, executive orders have sufficed since 1953 and can continue till Doomsday. "Nowhere else, as far as I can see, is there any provision author using the executive government to make amendments in the Constitution," President Rajendra Prasad pointed out to Prime Minister Nehru on September 6, 1952. Nowhere else, in the world, indeed. Is this the state of things we wish to perpetuate? Uniquely Kashmir negotiated the terms of its membership of the Union for five months. Article 370 was adopted by the Constituent Assembly as a result of those parleys.
YET, all hell broke loose when the State Assembly adopted, on June 26, a resolution recording its acceptance of the report of the State Autonomy Committee (the Report) and asked "the Union Government and the Government of Jammu and Kashmir to take positive and effective steps for the implementation of the same." On July 4, the Union Cabinet said that the resolution was "unacceptable would set the clock back and reverse the natural process of harmonizing the aspirations of the people of Jammu & Kashmir with the integrity of the State" - a patent falsehood, as everyone knows.
The State's Law Minister, P.L. Handoo, said on June 26 that the people "want nothing more than what they had in 1953." Overworked metaphors (about the clock or the waters of the Jhelum which flowed since) do not answer two crucial questions: Can lapse of time sanctify patent constitutional abuse? Can it supply legislative competence? If Parliament has legislated over the States on a matter on which it had no power to legislate, under the Constitution, it would be a nullity. Especially if the State's people have been protesting meanwhile and their voice was stifled through rigged elections.
Disapproval of Chief Minister Farooq Abdullah's opportunist politics should not blind one to the constitutional issues. The State's Finance Minister, Abdul Rahim Rather, a moving spirit behind the Report, resents suggestions of political timing. The report was placed before the Assembly on April 13, 1999. The State Cabinet endorsed its recommendations and decided last April to convene a special session of the Assembly to discuss it. The Government of India was "once again requested to set up a ministerial committee in order to initiate a dialogue on the report."
It provides a comprehensive survey of constitutional developments, which is useful in itself for its documentation. It lists 42 orders under Article 370 and gives the following opinion: "Not all these orders can be objected to. For instance, none can object to provisions for direct elections to Parliament in 1966... It is the principle that matters. Constitutional limits are there to be respected, not violated."
The ruler of Jammu and Kashmir acceded to India by an Instrument of Accession on October 26, 1947 in respect of only three subjects - defence, foreign affairs and communications. A schedule listed precisely 16 topics under these heads plus four others (e lections to Union legislature and the like).
Clause 5 said that the Instrument could not be altered without the State's consent. Clause 7 read: "Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or fetter my discretion to enter into arrangements with the Government of India under any such future Constitution." Kashmir was then governed internally by its own Constitution of 1939.
The Maharaja made an Order on October 30, 1947 appointing Sheikh Abdullah the Head of the Emergency Administration, replacing it, on March 5, 1948, with an Interim Government with the Sheikh as Prime Minister. It was enjoined to convene a National Assembly "to frame a Constitution" for the State.
Negotiations were held on May 15 and 16, 1949 at Vallabhbhai Patel's residence in New Delhi on Kashmir's future set-up. Nehru and Abdullah were present. Foremost among the topics were "the framing of a Constitution for the State" and "the subjects in respect of which the State should accede to the Union of India." On the first, Nehru recorded in a letter to the Sheikh (on May 18) that both Patel and he agreed that it was a matter for the State's Constituent Assembly. "In regard to (ii) the Jammu and Kashmir State now stands acceded to the Indian Union in respect of three subjects; namely, foreign affairs, defence and communications. It will be for the Constituent Assembly of the State when convened, to determine in respect of which other subjects the State may accede" (emphasis added, throughout). Article 370 embodies this basic principle which was reiterated throughout (S.W.J.N. Vol. 11; p. 12).
On June 16, 1949, Sheikh Abdullah, Mirza Mammad Afzal Beg, Maulana Mohammed Saeed Masoodi and Moti Ram Bagda joined the Constituent Assembly of India. Negotiations began in earnest on Article 370 (Article 306. A in the draft). N. Gopalaswamy Ayyangar tried to reconcile the differences between Patel and Abdullah. A text, agreed on October 16, was moved in the Constituent Assembly the next day, unilaterally altered by Ayyangar. "A trivial change," as he admitted in a letter to the Sheikh on October 18. Patel confirmed it to Nehru on November 3 on his return from the United States. Beg had withdrawn his amendment after the accord. Abdullah and he were in the lobby, and rushed to the House when they learnt of the change. In its original form the draft would have made the Sheikh's ouster in 1953 impossible.
ARTICLE 370 embodies six special provisions for Jammu and Kashmir. First, it exempted the State from the provisions of the Constitution providing for the governance of the States. Jammu and Kashmir was allowed to have its own Constitution within the Indian Union.
Second, Parliament's legislative power over the State was restricted to three subjects - defence, external affairs and communications. The President could extend to it other provisions of the Constitution to provide a constitutional framework if they related to the matters specified in the Instrument of Accession. For this, only "consultation" with the State government was required since the State had already accepted them by the Instrument. But, third, if other "constitutional" provisions or other Union powers were to be extended to Kashmir, the prior "concurrence" of the State government was required.
The fourth feature is that that concurrence was provisional. It had to be ratified by the State's Constituent Assembly. Article 370(2) says clearly: "If the concurrence of the Government of the State... 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."
The fifth feature is that the State government's authority to give the "concurrence" lasts only till the State's Constituent Assembly is "convened". It is an "interim" power. Once the Constituent Assembly met, the State government could not give its own "concurrence". Still less, after the Assembly met and dispersed. Moreover, the President cannot exercise his power to extend the Indian Constitution to Kashmir indefinitely. The power has to stop at the point the State's Constituent Assembly draft ed the State's Constitution and decided finally what additional subjects to confer on the Union, and what other provisions of the Constitution of India it should get extended to the State, rather than having their counterparts embodied in the State Constitution itself. Once the State's Constituent Assembly had finalized the scheme and dispersed, the President's extending powers ended completely.
The sixth special feature, the last step in the process, is that Article 370(3) empowers the President to make an Order abrogating or amending it. But for this also "the recommendation" of the State's Constituent Assembly "shall be necessary before the President issues such a notification".
Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution which apply to all the other States; namely, Article 368. For, in relation to Kashmir, Article 368 has a proviso which says that no constitutional amendment "shall have effect in relation to the State of Jammu and Kashmir" unless applied by Order of the President under Article 370. That requires the concurrence of the State's government and ratification by its Constituent Assembly.
Jammu and Kashmir is mentioned among the States of the Union in the First Schedule as Article 1 (2) requires. But Article 370 (1) (c) says: "The provisions of Article 1 and of this Article shall apply in relation to that State". Article 1 is thus applied to the State through Article 370. What would be the effect of its abrogation, as the Bharatiya Janata Party demands?
Ayyangar's exposition of Article 370 in the Constituent Assembly on October 17, 1949 is authoritative. "We have also agreed that the will of the people through the instrument of the Constituent Assembly will determine the Constitution of the State as well as the sphere of Union jurisdiction over the State. You will remember that several of these clauses provide for the concurrence of the Government of Jammu and Kashmir State. Now, these relate particularly to matters which are not mentioned in the Instrument of Accession, and it is one of our commitments to the people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the State for the purpose of framing its Constitution."
Ayyangar explained that "the provision is made that when the Constituent Assembly of the State has met and taken its decision both on the Constitution for the State and on the range of federal jurisdiction over the State, the President may, on the recommendation of that Constituent Assembly, issue an Order that this Article 306 (370 in the draft) shall either cease to be operative, or shall be operative only subject to such exceptions and modifications as may be specified by him. But before he issued any order of that kind, the recommendation of the Constituent Assembly will be a condition precedent.