Jammu & Kashmir - Article 370
"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.
