This article on Art 370 was written well before the Narendra Modi government moved The Constitution (Application to Jammu and Kashmir) Order, 2019 which has now repealed Art 370 and its illegitimate child Art 35A. These twin articles are now history. Yet it will be proper to know the background and circumstances in which Art 370 was introduced so as to be able to refute the nefarious propaganda against its revocation.
Article 370 of the Indian Constitution has been the singular bone of contention in multiple debates in this country. This is primarily because this Article 370 has been misquoted and used as an instrument to confuse and confound the masses by various political denominations to suit their own ends. There is a simplicity to this Article, which an elementary reading of the Indian Constitution can divulge. But the conundrum lies in twisting and turning its meaning, in order to prevent its abrogation since the 1950s whence such repeal was warranted.
In order to understand the genesis of this contentious Article 370 let’s look at the events of yesteryears. It is pertinent to note that the British Parliament passed the Indian Independence Act on 18th July, 1947 that provided for setting up of the Dominions of India and Pakistan. The Instruments of Accession were signed by approximately 565 Princely States in the months that followed. And Jammu and Kashmir became an integral part of the Dominion of India with the signing of the Instrument of Accession on 26th October, 1947. During those months India was preparing its Constitution.
On 17th October, 1949, Mr. Ayyangar suggested the adding of a new Article 306 (A) to the Draft Constitution of India which was already compiled by the Drafting Committee. This new additional temporary Article was eventually to be numbered as Article 370. Later on, the Indian Constitution was adopted and enacted on 26th November, 1949 and the Constitution of Jammu and Kashmir was enacted on 17th November, 1956.
It is worth noting that Dr. Babasaheb Ambedkar, who was Chairman of the Drafting Committee of the Constitution of India did not include any of the provisions of Article 370 in the Draft Constitution. The general debate on the Draft Constitution began on 4th November and lasted upto 9th November, 1948. The clause by clause consideration of the Draft Constitution commenced on 15th November, 1948 and lasted for 114 days as the members scrutinized every clause that was needed in our Constitution. Still Article 370 found no place in the Draft Constitution of India. It was Mr. Gopalaswamy Ayyangar who advocated the introduction of this article.
The position of Jammu and Kashmir in the Indian Constitution by virtue of Art 370, emanates from the basis underlined by Art 1 of the Constitution itself. Art 1 applies to Jammu and Kashmir by itself and independently brings the state within limits of the territories of Indian Union and within its jurisdiction. Art 1 is an independent constitutional instrument, which does not depend upon Article 370; rather, the instruments created by Article 370 depend upon the provisions of Art 1.
Further, the Clause 1(c) of Art 370 is redundant and reiterates the fact which is already accomplished by Art 1 of the Indian Constitution. Also, Art 370 describes a jurisdiction which is temporary and transitional. The provisions of Clause 1(c) of Article 370 do not prejudice the nature of Art 1 in its application to Jammu and Kashmir and in case Art 370 is abrogated, the applicability of Art 1 will not be affected. In fact, in such an eventuality Jammu and Kashmir will immediately be placed at par with other states of Indian Union and brought within the purview of all other provisions of the Indian Constitution without modification, including those pertaining to the Constitution of Jammu and Kashmir. The Constitution of Jammu and Kashmir will simultaneously be set aside. It must be noted that the state Constitution of Jammu and Kashmir was modelled on the Indian Constitution, with alterations that were needed and inserted to deal with temporary problems and upheaval brought about by the Pakistan’s invasion.
The provisions of Art 370 are not relevant to the accession of the state and do not form any constitutional commitments in regard to accession. If Art 370 is abrogated, it will not affect the accession of Jammu and Kashmir, because Art 370 does not accomplish the accession of Jammu and Kashmir to the Indian Union. Nor does Art 1 of the Indian Constitution accomplish accession of the erstwhile Indian States to the Indian Union. In fact, to reiterate the above point, even if Art 1 ceases to be operative then to the accession of Jammu and Kashmir (making it an integral part of the Union of India) will remain unaffected.
It needs to appeal to the sensibility of any astute government that Art 370 has become redundant ever since the day the Constituent Assembly of Jammu and Kashmir was dissolved, after completion of its task. This Article 370 is obsolete today, and can fulfil no productive or conducive purpose.
The manner of insertion of Article 370 into the Indian Constitution
When Dr. B.R. Ambedkar prepared the Draft Constitution of India, it did not contain Art 370. It was proposed by Mr. Gopalaswami Ayyangar, minister without portfolio, when the amendments and modifications were being discussed in the Constituent Assembly. Art 370 was debated in the Constituent Assembly on October 17th, 1949 where it was initially numbered as Art 306-A
The statements set out below are of the debate pertaining to Art 306-A which was re-numbered as Art 370 in the Indian Constitution.
Debate on Art 370 during the drafting of Indian Constitution
Mr. President: Very well. We take up article 306A now. Mr. Gopalaswami Ayyangar.
Mr. N. Gopalaswami Ayyangar: Sir, I move:
“That with reference to Amendment no. 379 of List XV (Second Week), after article 306, the following new article be inserted: 306A
Sir, this matter, the matter of this particular motion, relates to the Jammu and Kashmir State. The House is fully aware of the fact that the State has acceded to the Dominion of India. The history of this accession is also well known. The accession took place on the 26th October, 1947. Since then, the State has had a checkered history. Conditions are not yet normal in the State. The meaning of this accession is that at present that State is a unit of a federal State, namely, the Dominion of India. This Dominion is getting transformed into a Republic, which will be inaugurated on the 26th January, 1950. The Jammu and Kashmir State, therefore, has to become a unit of the new Republic of India.
As the House is aware, accession to the Dominion always took place by means of an instrument which had to be signed by the Ruler of the State and which had to be accepted by the Governor-General of India. That has taken place in this case. As the House is also aware, Instruments of Accession will be a thing of past in the new Constitution. The States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of Accession for the purpose of becoming units of the Republic, but they are mentioned in the Constitution itself; and, in the case of practically all States other than the State of Jammu and Kashmir, their constitutions also have been embodied in the Constitution for the whole of India. All those other States have agreed to integrate themselves in that way and accept the Constitution provided.
Maulana Hasrat Mohani: Why this discrimination, please?
N. Gopalaswami Ayyangar: The discrimination is due to the special conditions of Kashmir. That particular State is not yet ripe for this kind of integration. It is the hope of everybody here that in due course even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other States. (Cheers) At present it is not possible to achieve that integration. There are various reasons why this is not possible now, I shall refer again to this a little later.
In the case of the other Indian States or Unions of States there are two or three points which have got to be remembered. They have all accepted the Constitution framed for States in Part I of the new Constitution and those provisions have been adapted so as to suit conditions of Indian States and Unions of States. Secondly, the Centre, that is the Republican Federal Centre will have power to make laws applying in every such State or Union to all Union Concurrent Subjects. Thirdly, a uniformity of relationship has been established between those States and Unions and the Centre. Kashmir’s conditions are, as I have said, special and require special treatment. I do not want to take much of the time of the House, but I shall briefly indicate what the special conditions are. In the first place, there has been a war going on within the limits of Jammu and Kashmir State.
There was a cease-fire agreed to at the beginning of this year and that cease-fire is still on. But the conditions in the State are still unusual and abnormal. They have not settled down. It is therefore necessary that the administration of the State should be geared to these unusual conditions until normal life is restored as in the case of the other States.
Part of the State is still in the hands of rebels and enemies.
We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.
Again, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.
At present, the legislature which was known as the Praja Sabha in the State is dead. Neither that legislature nor a constituent assembly can be convoked or can function until complete peace comes to prevail in that State. We have therefore to deal with the Government of the State which, as represented in its Council of Ministers, reflects the opinion of the largest political party in the State. 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. Now, if you remember the viewpoints that I have mentioned, it is an inevitable conclusion that, at the present moment, we could establish only an interim system. Article 306A is an attempt to establish such a system.
I shall now proceed to take the House through the provisions of this article. As honourable Members will remember, the constitution of Indian States is mainly governed by article 211A of this Constitution which applies the Constitution to Indian States, subject to the modifications contained in Part VI-A read with the Schedule. So far as that provision in concerned, I have already indicated to you that the provisions regarding the Constitution of other States could not at present be applied to Jammu and Kashmir. Therefore, clause (1) (a) of this article says that the provisions of article 211A of this Constitution shall not apply to the State of Jammu and Kashmir.
The Second portion of this article relates to the legislative authority of Parliament over the Jammu and Kashmir State. This governed primarily by the Instrument of Accession. Broadly speaking, that legislative power is confined to the three subjects of defence, foreign affairs and communications, but as a matter of fact these broad categories include a number of items which are listed in the Instrument of Accession. I believe they number some twenty to twenty-five. Now, these items have undergone a change in description, in numbering, in arrangement, as amongst themselves, in List I and List III of the new Constitution. It is therefore necessary that the items mentioned in the Instrument of Accession should be brought into line with the changed designations of entries in Lists I and III of the new Constitution. So, clause (1) (b) of article 306A says that this listing of the items as per the terms of the new Constitution should be done by the President in consultation with the government of the Sate.
Clause (b)(ii) refers to possible additions to the List in the Instrument of Accession, and these additions could be made according to the provisions of this article with the concurrence of the government of the Sate. The idea is that even before the Constituent Assembly meets, it may be necessary in the interests of both the Centre and the State that certain items which are not included in the Instrument of Accession would be appropriately added to the List in that Instrument so that administration, legislation and executive action might be furthered, and as this may happen before the Constituent Assembly meets, the only authority from whom we can get consent for the addition is the Government of the State. That is provided for.
Then, there is the Explanation, which defines what the Government of the State means. The Government of the State is defined both in the Constitution which is now supposed to be in force in the Jammu and Kashmir State as well as in the Proclamation which the Maharaja issued on the 5th March, 1948. The terms of the Proclamation, to the extent that they are inconsistent with the provisions of the Constitution Act of the State, will prevail over that Constitution Act, and therefore it is that in this Explanation it is the Proclamation which is referred to. Under the terms of that Proclamation the Maharaja constituted an interim popular Government, and he said: –
“I hereby ordain as follows :-
(1) My Council of ministers shall consist of the Prime Minister and such other Ministers as may be appointed on the advice of the Prime Minister. I have by Royal Warrant appointed, Sheikh Mohd. Abdullah as the Prime Minister with effect from the 1st day of March 1948.
He proceeds –
“The Prime Minister and other Ministers would function as a Cabinet and act on the principle of joint responsibility.”
Then there was no Legislature functioning, and so he instituted a kind of responsible Government with a Prime Minister and colleagues who would own collective responsibility for their acts and regard themselves as jointly responsible for all the acts of the Government. Now, that is brought out in this Explanation.
K. Santhanam: The Explanation says that the Maharaja will be recognised by the Union instead of by the President.
N. Gopalaswami Ayyangar: Perhaps we may leave it to the Third Reading. As you know the scheme of the Constitution Act is that the Rajpramukh must be recognised by the President. So, this also says that the Maharaja of Jammu and Kashmir should be a person recognized for the time being by the Union.
As regards the Council of Ministers, this Proclamation set up a system under which this Council was to be established, viz., that the Maharaja first finds the Prime minister and then on his advice appoints his colleagues, and the Explanation as now amended by me says that whatever Council of Ministers is in being at the time will, along with the Maharaja to whom they are responsible give their concurrence or give their advice on such matters as are referred to them under this article.
Clauses (c) and (d) refer to the provisions of the Constitution other than the matters listed in Lists I and III. These various provisions have been divided into certain categories. The first according to this draft is that article 1 of the Constitution will automatically apply. As you know, it describes the territory of India, and includes amongst these territories all the States mentioned in Part III, and Jammu and Kashmir is one of the States mentioned in Part III. With regard to the other provisions in the Constitution, these will apply to the Jammu and Kashmir State with such exceptions and modifications as may be decided on when the President issues an order to that effect. That Order can be issued in regard to subjects mentioned in the Instrument of Accession only after consultation with the Government of the State. In regard to other matters, the concurrence of that Government has to be taken.
Now, it is not the case, nor is it the intention of the members of the Jammu and Kashmir Government whom I took the opportunity of consulting before this draft was finalized – it is not their intention that the other provisions of the Constitution are not to apply. Their particular point of view is that these provisions should apply only in cases where they can apply the only subject to such modifications or exceptions as the particular conditions of the Jammu and Kashmir State may require. I wish to say no more about that particular point at the present moment. Then we come to clause (2). 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 Jammu-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. In other words, what we are committed to is that these additions are matters for the determination of the Constituent Assembly of the State.
Now, you will recall that in some of the clauses of this article we have provided for the concurrence of the Government of the State. The Government of the State feel that in view of the commitments already entered into between the State and the Centre, they cannot be regarded as final authorities for the giving of this concurrence, though they are prepared to give it in the interim periods but if they do give this concurrence, this clause provides that that concurrence should be placed before the Constituent Assembly when it meets and the Constituent Assembly may take whatever decisions it likes on those matters.
The last clause refers to what may happen later on. We have said article 211A will not apply to the Jammu and Kashmir State. But that cannot be a permanent feature of the Constitution of the State, and hope it will not be. So 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 306A 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 issues any order of that kind the recommendation of the Constituent Assembly will be a condition precedent. That explains the whole of this article.
The effect of this article is that the Jammu and Kashmir State which is now a part of India will continue to be a part of India, will be a unit of the future Federal Republic of India and the Union Legislature will get jurisdiction to enact laws on matters specified either in the Instrument of Accession or by later addition with the concurrence of the Government of the State. And steps have to be taken for the purpose of convening a Constituent Assembly in due course which will go into the matters I have already referred to. When it has come to a decision on the different matters it will make a recommendation to the President who will either abrogate article 306A or direct that it shall apply with such modifications and exceptions as the Constituent Assembly may recommend. That, Sir, is briefly a description of the effect of this article, and I hope the House will carry it.