The recent challenge to Articles 370 and 35A of the Constitution of India before the Supreme Court has evoked strong reactions. On one hand, there are those who argue for abrogation of these Articles to allow full integration of the erstwhile princely state of Jammu & Kahsmir (J&K) into the Indian Union. Others opine that such provisions are hit by the equality clause contained in Article 14, amongst other fundamental rights guaranteed by the Constitution of India. At the other end of the spectrum are those who contend that there is nothing sinister about such provisions; rather, such dispensations and exceptions are perfectly normal in a pluralist society. Further, leaving aside about 35 percent of J&K occupied by Pakistan and about 20 percent occupied by China, there is no consensus even within the part of J&K with India. While Jammu and Ladakh clamour for full integration, the demand in parts of the Kashmir Valley ranges from restoration of autonomy to supposed ‘azadi’. And now, a petition has been filed before the Supreme Court challenging the Constitution of Jammu & Kashmir of 1957 as being inconsistent with the Constitution of India.
In order to appreciate the current legal challenges, it will be useful to examine the constitutional position.
The 3rd June political agreement partitioning the sub-continent was crystallised in the British statutes - the Indian Independence Act of 1947 and the modified Government of India Act of 1935. While India is an ancient civilisation, modern day India and Pakistan are creations of these statutes and have chosen to abide by such constitutional law governing the sub-continent. There is no doubt about the legitimacy of an “India” and a “Pakistan” as created by these statutes, and both countries have been recognised by the United Nations as sovereign member states.
J&K was a sovereign state as of 15 August 1947 in terms of this constitutional law creating India and Pakistan. Hence, the ruler of J&K was the sole repository of power in the state, and was held to be so by the Supreme Court in Premnath Kaul (1959). The sovereign ruler, who could in law accede to India, Pakistan or remain independent, executed the accession instrument of 26 October 1947 in favour of India, thereby making J&K an integral part of India. The accession of a sovereign J&K to a sovereign India was an Act of State, and bound all concerned. This ruled out any ‘right of self-determination’ being vested in the people of J&K in law to decide the future of that state as further elaborated in my book, Unravelling the Kashmir Knot. I have in fact questioned the policy of the Government of India in 1947 to treat the accession of J&K to India as ‘provisional’ and subject to the ‘wishes of the people’ as being beyond the power and competence of the Government of India under the very law that created modern day India. Indeed, such constitutional law did not permit the people in any of the 560 odd princely states (that comprised about 45% of colonial India) to decide the accession of their respective states to India or Pakistan.
As per the accession instrument, the ruler of J&K acceded only external affairs, communications and defence and certain ancillary matters to India, while expressly declaring therein that nothing in the accession instrument affects the continuance of his sovereignty in or over J&K. The Supreme Court held in Premnath Kaul that the accession of J&K to India was subject to the terms of the accession instrument and that the same clearly and expressly recognised the continuance of the sovereignty of ruler in and over his state. A similar case is that of the princely state of Bahawalpur which had acceded to Pakistan. The King’s Bench Division, the UK, held in Sayce (1952) that the ruler of that state had, notwithstanding the accession of that state on 3 October 1947 to Pakistan in specified areas, retained his sovereignty so as to entitle him to immunity as the ruler of a sovereign state from being sued in the UK.
The sovereign ruler of J&K deputed his representatives to represent J&K in the Constituent Assembly of India, which was in the process of framing the Constitution of India. The said representatives, who joined the Constituent Assembly of India on 16 June 1949, sought to limit the accession of J&K to the matters listed in the accession instrument. Further, J&K chose not to execute any merger instrument, as a result of which J&K has not merged its territory into the territory of the Indian Union. There is indeed a distinction between accession and merger in relation to a princely state, with the former connoting cession of sovereignty by that state to India and the latter signifying the blending of state territory into that of the Indian Union. The position that emerges is that while J&K became an integral part of India with the accession on 26 October 1947, it has till date chosen to retain its autonomy, including though not limited to territorial autonomy.
This relationship between J&K and the Indian Union was reflected in Article 370 of the Constitution of India. The scheme of Article 370 did not however contemplate that the ruler of J&K was to remain a constitutional ruler. Rather, it envisioned that J&K would have its own constitution to be framed by its own constituent assembly. The form of government that J&K should adopt, the Supreme Court reasoned in Premnath Kaul, ‘was a matter which had to be, and naturally was left to be, decided by the Constituent Assembly of the State’ and ‘(u)ntil the Constituent Assembly reached its decision in that behalf, the constitutional relationship between the State and India continued to be governed basically by the Instrument of Accession.’ The Supreme Court held that the purpose of Article 370 was indeed to limit the accession of J&K to India to the terms of the accession instrument until the state Constituent Assembly determined the constitutional relationship between the two, and that ‘it was not, and could not have been, within the contemplation, or competence of the Constitution-makers to impinge even indirectly’ on the plenary powers of the ruler of the state.
On 20 March 1952, Mirza Mohammad Afzal Beig, the chairman of the Basic Principles Committee of the state Constituent Assembly, described the proposed constitutional relationship of J&K with the Indian Union as being one of ‘an Autonomous Republic within the Indian Union’. This relationship was later crystallised in the Delhi Agreement of 24 July 1952, which inter alia permitted the state legislature to make laws conferring special rights and privileges upon the state subjects. Indian Parliament ratified the Delhi Agreement on 7 August 1952 while the state Constituent Assembly ratified it on 21 August 1952. New Delhi inserted Article 35A in the Constitution of India through the Constitution (Application to Jammu and Kashmir) Order of 1954 under Article 370. Article 35A inter alia empowers the state legislature to define ‘permanent resident’ of the state and to provide special rights and privileges to such permanent residents.
It may be noted that Article 370 of the Constitution of India mandates a recommendation of the state Constituent Assembly before the President of India can declare Article 370 inoperative. The state Constituent Assembly dispersed after framing the Constitution of Jammu & Kashmir in 1957 without, however, making any recommendation to declare Article 370 inoperative.
It therefore follows that the competence of any organ of the Indian State to declare Article 370 inoperative no longer exists. Nor would any attempt to equate the state Constituent Assembly referred to in Article 370 with the state legislative assembly (so as to enable the state legislative assembly to give such recommendation) come to New Delhi’s rescue since that would make a mockery of New Delhi’s commitment to J&K to preserve its autonomy as a term of its accession to India. That it was the state Constituent Assembly which was to take the final decision in this regard was, in fact, emphasized by the Supreme Court in Premnath Kaul.
It is often argued that there is no justification for retaining Article 370 for more than 70 years now when Article 370 is placed under Part XXI of the Constitution of India which deals with "Temporary, Transitional and Special Provisions", and when the heading of Article 370 describes it as temporary provisions with respect to J&K. This is, in my view, a complete misreading of the constitutional provision.
The temporariness in relation to J&K stemmed from the fact that at the time Article 370 was adopted by the Constituent Assembly of India there was still to be a transition from monarchy to a form of government that was to be decided by the state Constituent Assembly that was yet to be set up, and which would also finally determine the constitutional relationship of J&K with the Indian Union. It was pending such transition and determination that the terms of the accession instrument were to hold the field. The Supreme Court, while observing in Premnath Kaul that the monarch was not intended to remain the constitutional ruler, held that the “Constitution-makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself; that is the main basis for, and purport of, the temporary provisions made by the present Article.’ The Supreme Court referred to the scheme of Article 370 to hold that ‘the Constitution makers attached great importance to the final decision of the Constituent Assembly, and the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provisions of Art. 370(1) is made conditional on the final approval by the said Constituent Assembly in the said matters.’
It has been noted earlier that while it was within the powers of the state Constituent Assembly to recommend that Article 370 be made inoperative, it did not do so before its dispersal. As a result, the constitutional relationship between J&K and the Indian Union is presently governed by Article 370 of the Constitution of India (reflecting the terms of the accession instrument) read with the state Constitution.
The executive, Parliament and judiciary of the Indian State - being creations of the Constitution of India – are bound by this position and simply cannot re-open the same. Similarly, the question of any creation of the Constitution of India examining the validity of the state Constitution framed by a duly elected state Constituent Assembly as contemplated by the Constitution of India itself does not arise.
Again, those protesting against Article 35A inserted through the Presidential Order of 1954 (passed under Article 370 subsequent to the Delhi Agreement of 1952) as being beneficial for the state’s permanent residents overlook that the same 1954 Order also inserted Article 35C in the Constitution of India to the prejudice of the state’s permanent residents by giving immunity for five years to preventive laws in J&K from being challenged on the ground of their being inconsistent with the guaranteed fundamental rights under the Constitution of India. In other words, New Delhi suspended Part III of the Constitution of India for J&K residents, and that too, through executive action – something unheard of for the rest of the country. The Supreme Court, in Sampat Prakash (1969), went further to uphold repeated extension of such immunity through successive executive orders under Article 370 – that is, to ‘ten years’ under the Constitution (Application to Jammu and Kashmir) Second Amendment Order of 1959 to ‘fifteen years’ under the Constitution (Application to Jammu and Kashmir) Amendment Order of 1964.
Interestingly, the framers of the Constitution of India might not have even contemplated that New Delhi could issue such successive executive orders. At least, the then President of India, Rajendra Prasad, who had presided over the Constituent Assembly of India, and Gopalaswami Ayyangar, who had drafted Article 370 (draft Article 306A), did not think that the President could. Indeed, Rajendra Prasad questioned, in his Note of 6 September 1952, ‘the competence of the President to have repeated recourse to the extraordinary powers conferred on him by Article 370’ and noted that ‘any provision authorizing the executive government to make amendments in the Constitution’ was an incongruity. After all, it is a legislative function to amend a constitution, and, for the rest of the country, the Constitution of India vests such power in Parliament and not in the executive.
Be that as it may, not only has New Delhi taken repeated recourse to executive power under Article 370 to apply to J&K almost the entire Constitution of India and thereby encroach upon its autonomy, it has also chosen to apply through executive action certain provisions of the Constitution of India with substantial modifications to J&K. Article 368 of the Constitution of India mandates that a constitutional amendment in relation to states in India would require a two-thirds vote of both Houses of Parliament, along with ratification by one half of the states. For J&K, executive orders under Article 370 of the Constitution of India have sufficed to bring about constitutional amendments till date.
In other words, New Delhi has bypassed its own Parliament in applying drastically amended laws to the state. The 1961 decision of the Supreme Court in Puranlal Lakhanpal, which ruled that the widest interpretation be given to the term ‘modification’ in Article 370, has come in handy in emasculating the constitutional autonomy guaranteed to J&K. Article 370, emptied of its contents, has never stood in the way of New Delhi behaving with or in J&K as it liked, with mere executive directions by New Delhi deciding fate of the state. As a result, J&K did get a ‘special status’, though certainly not of an ‘Autonomous Republic’ within the Indian Union!
Against this background, it is difficult to comprehend with what face can a legal challenge to Article 35A now be made on the ground that it was inserted in the Constitution of India by New Delhi through executive action under Article 370 and not legislative action under Article 368, or that it gives preferential treatment to permanent residents of J&K.
Moreover, it has been overlooked that there is a distinction between the autonomy guaranteed to J&K by the Constitution of India and a legally untenable claim of ‘right of self-determination’ by a section of the people of that state to determine its accession to India. The grant of such constitutional autonomy to J&K, including the permissibility of J&K having its own constitution, is consistent with the fact that J&K is an integral part of India. And needless to say, the state Constitution itself declares J&K to be an integral part of India.
The current legal challenges to Articles 370 and 35A and to the state Constitution are thus misdirected and misconcieved. Rather, such challenges merely serve as an index to test the bonafides of the Indian State – whether it will honour or instead continue to disregard the terms of the accession instrument on which J&K had acceded to India and had become its integral part.
Dr Aman Hingorani is an advocate-on-record and mediator at the Supreme Court of India. He also authored Unravelling the Kashmir Knot.
First Published: IST