Decommissioning of Article 370: The Legal Perspective

Written By: Shakti Munshi

Introduction

Through the Treaty of Amritsar, the British had bestowed the Kashmir Valley and other territories on Maharaja Gulab Singh who was the ruler of the Jammu region. With the merger of these territories, the Maharaja established the state of Jammu and Kashmir. This included Ladakh and present day Gilgit Baltistan. The Jammu and Kashmir State thus created by the Dogra Rulers was one of the largest States under the British paramountcy in India[i]. It had an area of 2,22,236 sq. km. including those areas which are presently under the illegal occupation of Pakistan and China[ii].

British concern over Russian expansionism led to the establishment in 1877 of the Gilgit Agency. This was re-established in 1935 under the control of the British Resident in Jammu and Kashmir and was given on lease for a period of 60 years commencing from 29 March 1935.[iii] Maharaja Hari Singh, who ascended the throne of Jammu and Kashmir in 1925, was concerned about the conduct of certain British officials in building huts in Gulmarg region of Kashmir. He had also expressed his anti-British stance on several occasions, at times even in the meetings of the Chamber of Princes. This became the main cause of contention between the British officers and the Maharaja. To protect his State from the British in the year 1925, Maharaja Hari Singh issued an order that Indian subjects will be given more relaxations over British subjects in building huts in Gulmarg region of Kashmir. British Government openly protested this differentiation and communicated it via a series of telegrams through its Foreign and Political Department.

To prevent the British residents from buying the properties in J&K for their own permanent settlement and depriving the poor local population of J&K of their land and opportunities, Maharaja Hari Singh issued the State Subject Definition Notification on 20 April 1927.[iv] The notification classified the State Subjects as also companies which had been registered in the state. Vide the above notification; the Mulkis (Hereditary State subjects) were given preference in employment in the Government services. It also instructed that grants of land for building and other purposes were to go to the ‘Hereditary State subjects’ and permitted the selling or transferring of such land to Hereditary State subjects only. With respect to contracts, it decreed that the claims of State subjects should have priority over those of non-State Subjects. It was this State Subject Notification (1927) which the valley politicians used post 1947 to bring in Article 35A under the protection of Article 370 of the Indian Constitution. However, they made some convenient deletions to suit their political agenda and maintain their political control over J&K State.

Accession of J&K State to India

The instrument of Accession signed by Maharaja Hari Singh was the same as was executed by the rulers of other princely states that acceded to India. The British Government could not have questioned this act of accession as it was made directly under the enactments of the British Parliament. Further, the Legal Advisor to the United Nations Commission also concluded that the State’s accession to India was legal and could not be questioned.

However, while accepting the Instrument of Accession, Lord Mountbatten, the then Governor General of India, did state his views in a letter addressed to the ruler of the State that as soon as law and order was restored and J&K State is cleared of the invaders, it was his Government’s wish, in conformity with their policy in case of disputed accession, that “the question of State’s accession should be settled by a reference to the people”. This statement was not a part of the Instrument of Accession; therefore it does not affect the legality of the accession in anyway.[v] However it was Pandit Nehru‘s statement on 2nd November 1947 about holding a plebiscite in J&K that opened the gates for Sheikh Abdullah to further his personal ambition of being ‘Sultan of J&K’ and he used Article 370 to bully and manipulate the Central Government.

Mehr Chand Mahajan has said:

The Indian Independence Act did not envisage the conditional accession. It could not envisage such a situation, as it would be outside the Parliament’s policy. It wanted to keep no Indian State in a state of suspense. It conferred on the rulers of Indian States absolute power in their discretion to accede to either of the two Dominions. The Dominions Governor General had the power to accept the accession or reject the offer but he had no power to keep the question open or attach conditions to it, as the act of accession made the Dominion Government responsible for defence, communication and external affairs of the acceding State”.

The J&K State’s Instrument of Accession and its acceptance were similar to all the other Indian States and was unconditional, voluntary and absolute. It bound the State of Jammu & Kashmir to India both legally and constitutionally[vi]. The accession was no doubt prompted by Pakistan’s attack on J&K on 22 October 1947. This attack, dubbed as Operation Gulmarg was the brainchild of the Pakistan military and was supported by the Pakistan government. 20 lashkar’s, each compressing of 1000 Pashtun tribals, were raised by the Pakistani army. Besides being given weapons and equipment and provided logistic support, they were also led by officers from the Pakistan army. Indeed, the Pakistan army, with the complete backing of the ruling Pakistani dispensation, carried out the entire planning and execution of this operation.

On commencement of Constitution of India and by virtue of its own language of Article 370, only Article 1 and Article 370 were made applicable to the State of Jammu & Kashmir. Article 1 (1) declares, “India, that is Bharat, shall be a Union of States” Article 1 is a solemn declaration of the People of India that the Union of States is an indestructible Union of States. Therefore, no state has any power to secede from the Union. Thus, the issue of accession of the States stands settled politically and constitutionally.

India’s Complaint to the United Nations

Despite Sardar Patel’s reservations on the subject, Pandit Nehru, under pressure from Mountbatten and his own misplaced faith in the newly established United Nations (UN), took the Pakistani invasion to the United Nations Security Council under Chapter V1 and Article 35 on 1 January 1948. The war between India and Pakistan was finally suspended on 1 January 1949. By then, a large part of the J&K State territory had not been liberated and still remains occupied by Pakistan. The India-Pakistan war along with the ‘Great Game’ played by western powers encouraged the ambitious Sheikh Abdullah to negotiate inclusion of Article 370 in the Indian Constitution by which he retained political power over the State and its people and eventually led to the dynasty politics in J&K.

Article 370

While revisiting the 17 October 1949 discussion in the ‘Indian Constituent Assembly’ it is clear that there was strong opposition, both by Congressmen and other party leaders to the proposal by Gopalaswamy Ayyangar to include Draft Article 306 A[vii] in the Constitution of India. Maulana Hasrat Mohani protested against the inclusion of this Article in the main draft of the Constitution and asked Gopalaswamy Ayyangar, “Why this discrimination, please?”[viii]

Ayyangar’s reply was, “situation is not normal in the State of Jammu and Kashmir. A big territory of State is under enemy’s illegal occupation, we are at war with Pakistan, thus in this situation State’s administration should be handled in special manner. Secondly, we are entangled in the United Nations over this issue and it can’t be said, how long it will take to settle the situation”. He further added, “Till a Constituent Assembly comes into being, only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangement that exists in the case of the other States”.[ix]

Finally, the motion was passed and draft Article 306A became Article 370 of the Indian Constitution under Part XII with its marginal heading categorically stating, “Temporary and Transitional Provisions”. J&K Constitution was brought into force on 26th January 1957 and technically, J&K Constituent Assembly should have abrogated article 370 then, but it continued to linger on for more than six decades in the main text of India’s Constitution. In the later years, when members of Parliament objected to its continuation, Pt. Nehru in his Lok Sabha speech reaffirmed that Article 370 has been eroded to a large extent and whatever has remained will erode out automatically. “Yeh Dhara Ghiste Ghiste Ghis Jaayegi[x]

Under Article 370, power to apply the Constitution of India to the State of Jammu & Kashmir was granted to the President of India along with the powers of exceptions and modifications with either the concurrence or in consultation with the J&K State Legislative Assembly. The residuary powers under Article 248 in contrast to the Constitutional scheme for all other States (under an amendment to Article 248) were granted to J&K State. This differential treatment to the erstwhile State of J&K irked many, even within the Congress party itself.[xi]

Article 370: A Constitutional Harakiri on Development, Progress and People of J&K State

The Indian Constitution guarantees rule of law, equal rights and equal opportunities for all its citizens. At the time of accession of over 550 princely States, India was a complex multi-ethnic, multi-lingual and multi-religious pluralistic country, stricken with underdevelopment, mass poverty and illiteracy. To help all the acceded States to address their inequalities and dissimilarities, the Indian Constitution included Chapter XX1, which addressed these issues of inequality through concessional treatments via 25 Articles for almost 15 States of India, and Article 370 is one of these 25 articles for J&K State. 

Though, Article 370 was inserted in Indian Constitution as a ‘Temporary & Transitional’ arrangement,[xii] it remained as a part of the Constitution for decades, and each dynast politician in J&K misused it for gaining and retaining power in the state and for distributing largesse to their cronies. The authority given to the J&K State under Article 370 to bring about progress and development for its people was used in the establishment of an oligarchic domination over the minorities, weaker sections and exploitation of local populace of the State.

Article 35A:  A Constitutional Fraud and Challenge to Fundamental Rights

It was in the year 1954 that Article 35-A was inserted in the Constitution of India, as applicable to the State of Jammu & Kashmir, through the Constitution Order 1954, along with a slew of other provisions of the Indian Constitution. The addition of 35A in Part III of the Indian Constitution dealing with Fundamental Rights of citizens and individuals, circumvented Article 13 of the Indian Constitution, which declares any law inconsistent with or in derogation of the fundamental rights to be void. This rendered the most sacrosanct feature of ‘Judicial Review’ (which subsequently has been declared as a part of the inalienable basic structure of the Indian Constitution) redundant, when it came to protecting a gamut of fundamental rights of the residents of the then State of J&K.

Article 35A further enacted Section 6 of the “Constitution of J&K” to create a class of “permanent residents”. The category of ‘Permanent Residents’ was arbitrarily frozen to the cut off year 1944, using the State Notification No. 1-L/84 dated 20th April, 1927[xiii], read with State Notification No. 13/L dated 27th June, 1932[xiv] as the justification of its existence. However, unlike these notifications, Sub-sections (1) and (2) of Section 6 of the State Constitution did not apparently make any provision for acquisition of status of permanent residents of the descendants of the permanent residents of the State.

Article 35A led to the following:

  • Gender discrimination in J&K State.
  • Discrimination against the Valmiki community, Gorkhas, West Pak refugees, Border displaced people
  • No rights for non-permanent residents to seek admission for higher education in State Universities.
  • No rights to acquire and hold even a limited immovable property to built a home for own shelter under Article 19(1)(e) read with 19(1) (f) by non permanent resident
  • No right to be considered for employment by non permanent residents in the State Services or State Instrumentalities guaranteed under Article 14 and 16
  • No right to purchase and acquire limited property to start a small business for non permanent residents
  • Denial of remedy of judicial review under Article 35A violated the right to life and liberty guaranteed under Article 21 read with Article 32 of the Constitution of India for two generations of the above mentioned Indian citizens living in J&K.
  • There was no ST reservation and the SC reserved seats were not rotated as was required under the law.

Accordingly, with the abrogation of Article 35A, the following benefits accrued automatically to the aggrieved population:

  • The Right of Equality and equal protection of law under Article 14 for all domiciles of Union Territory J&K
  • Right to opportunity for higher education in the State funded institutes under Article 14 and article 15 for all domiciles of Union Territory J&K
  • Right of employment in the State Services and Public Sector Institutions under Article 16 for all domiciles of Union Territory J&K
  • Right to reside and settle in any part of India (right to shelter) under Article 19(1)(e) and
  • Right to life under Article 21 (are the human rights conferred under a constitutional scheme, by the people of India upon themselves, for the proper development as a human being)

All the above such rights are held to be part of Basic Structure of the Indian Constitution. The J&K State also used ancestry as a racial definition and for racial purpose and emphasised the explicit tie to race. The ancestral enquiry of the citizens is forbidden under Articles 14 and 15(1) for the further reasons that using racial classification is corruptive of the whole legal order Part III seeks to preserve, but Section 6 enacted by the State legislature of J&K threw the scheme of these Articles to the wind.

Article 370 gave the President the power to take the Indian Constitution to J&K with modification and exceptions but no way does it give the President the power to amend or interfere with the Basic structure of the Indian Constitution. Also, when the President passes an ordinance, then under Article 123 of Indian Constitution, it has to be ratified by the parliament within 6 weeks, once the Parliament sits /starts which was not done in case of Article 35A.

Impact

Seventy years of mis-governance, corruption, terrorism, youth taking to drugs and the gun-toting culture, genocide of the Kashmiri Hindus, the human rights violation of Valmikis, gender discrimination and security threat to the region and rest of the country, finally forced the Government of India in August 2019 to take a major step in the National interest of decommissioning Article 370, following due legal and constitutional process. After this Constitutional Order 2019, all the provisions of Indian Constitution as well as the amendments are now applicable to both the Union Territory of J&K and the Union Territory of Ladakh.

The Hon’ble President of India, vide Constitutional Orders 272 and 273 made on 5 and 6 August 2019 respectively, ended this gross imbalance of guarantees of fundamental rights among the residents of Union Territory of J&K and the Union Territory of Ladakh. Article 13 was effectively brought back to life in both these Unions in all its glory and sanctity. Moreover, the entire Constitution of India was made applicable to the previously existing State of Jammu & Kashmir and all its residents, whether or not falling into the ‘Permanent Residents’ category, were handed over the power to exercise all the fundamental rights in Part III of the Indian Constitution, which citizens in rest of the Country could exercise.

Interestingly, the upheld precedence set in 1965, invoked Article 370 to make itself inoperative. Subsequently, a resolution was also presented for Reorganisation of State of Jammu & Kashmir. Ladakh was made a separate Union Territory without a legislature while the Jammu and Kashmir was made a Union Territory with a legislature.

There are opinions favouring and against the procedures followed, for the ReorganisSation of the State of Jammu & Kashmir, and also for decommissioning of Article 370. Some constitutional experts, rather than debating the legality of the Government’s move are trying to trace the political motive behind it. However other constitutional legal experts are of the opinion that the legal and constitutional procedures were followed.

One of the objections to the Decommission of Article 370 is the absence of the Constituent Assembly in J&K. The counter argument is that absence of CA can be interpreted in three ways:

  • Absence of CA means 370 sub clause 3 itself becomes defunct
  • Absence CA the proviso becomes defunct
  • Absence CA can be construed as its successor.

Legal experts are of the opinion that if Article 370 had gone to the extent of stating that in the absence of the Constituent Assembly, the proviso renders the whole provision defunct; only then could the decommissioning not be possible. Other experts argue that the words ‘President may by notification cease / modify Article 370’ gives the express power to the President to decommission Article 370, and the absence of this phrase in Article 370 would have been an inherent limitation to do so. There is also a view that the decommissioning of Article 370 under Presidential Order 2019 is in conflict with the basic Structure of the Indian Constitution. Others opine to the contrary and argue that article 370 itself created exception to Fundamental Rights of Indians both inside the State of J&K and in the rest of the country and now Presidential Order 2019 has given full play to Fundamental Rights in Jammu & Kashmir thus strengthening the basic structure of the Indian Constitution. There are also arguments that views of the people through their representatives were not considered due to the absence of the J&K State Legislative Assembly. But the counter argument is that even if the views were taken, the Government was not bound by those views.

When 370 was being framed in its sub article (3), the framers of the Indian Constitution used the word ‘cease to operate’ thus contemplating a situation that it could be decommissioned or abrogated without amending the Indian Constitution. The argument in favour of the procedure of using 370 Clause 1(d) provisions to de-operationalise Article 370 itself (through Article 367 which is about definitions and interpretations) is that there is an Upheld Precedence to it as the same route was followed in 1965 to replace Sadr-e-Riyasat with Governor & Wazir-e-Azam with Chief Minister.

Conclusion

5 August 2020 marked the first Anniversary of Decommissioning of Article 370 and Reorganisation of the State of Jammu & Kashmir into two Union Territories—the Union Territory of Jammu & Kashmir and Union Territory of Ladakh. The two Constitutional orders ended the constitutional isolation of the northernmost State of India and also put an end to the shameful, discriminatory and undemocratic policies and practices in that region, securing the rights and privileges denied to the economically and socially backward populace of the region, and bringing them at par with the rest of the citizens all over the India. After the amendment of Article 370, Union Territory of Jammu & Kashmir and the Union Territory of Ladakh fully come under the umbrella of Indian Constitution with the expectation that the long delayed peace and development will now take precedence over terrorism and radicalisation in the region.

(Shakti Munshi is Director, C-Tech Labs, Pvt. Ltd. An entrepreneur and social activist, she is also the Secretary, Jammu Kashmir Study Centre, Mumbai. Legal inputs for this article were provided by Divya Roy, Advocate Supreme Court and Pankaj Jamtani.)

[i] A Handbook of Jammu and Kashmir State 1 (The Ranbir Government Press, Jammu, 3rd Edition, 1947).

[ii] Majid Hussain, Geography of Jammu and Kashmir 3 (Rajesh Publication, New Delhi, 1987).

[iii] Arjan Nath Chaku & Inder K Chaku, The Kashmir Story through the ages, Vitasta Publishing, New Delhi, p 27-28

[iv] A copy of the notification is available at https://www.satp.org/satporgtp/countries/india/states/jandk/documents/actsandordinances/State_Subject_Rules.htm

[v] Adarsh Sein Anand, “Accession of Jammu and Kashmir State – Historical and Legal Perspectives”, Journal of the Indian Law Institute, October-December 2001, Volume 43, Number 4, available at http://14.139.60.114:8080/jspui/bitstream/123456789/12505/1/012_Accession%20of%20Jammu%20and%20Kashmir%20State%20-%20Historical%20and%20Legal%20Prespectives%20%28455-468%29.pdf

[vi] A.S. Anand, Constitution of Jammu & Kashmir – Its Development & Comments  66 (Universal Publishing, 8th edn., 2016)

[vii] Draft Article 306A later renumbered as Article 370  when Constitution of India was finally drafted. Article 370 (before 2019 amendment) states:

“370. Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything contained in this Constitution,—

(a) the provisions of Article 238 shall not apply now in relation to the state of Jammu and Kashmir;[a]

[viii] Constituent Assembly Debates, 17 October 1949

[ix] Constituent Assembly Debates, 17 October 1949

[x] Pt. Nehru in his Lok Sabha Speech on “Closer Integration of Jammu and Kashmir with India” in the year 1963

[xi] M.S. Ratnaparkhi, Kashmir Problem and its Solution, 77 (Atlantic Publishers, Delhi, 2011)

[xii]  Marginal note of Art. 370 under Part XXI of COI.

[xiii] Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004 as Unconstitutional by Justice G.D. Sharma (2004) 6 SCC (Jour) 23.

[xiv] Justice G. D. Sharma, Supra note 8

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Published by Shakti Munshi

Shakti Munshi is Director, C-Tech Labs, Pvt. Ltd. An entrepreneur and social activist, she is also the Secretary, Jammu Kashmir Study Centre, Mumbai.

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