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the accession of the State of Jammu and Kashmir to India, jurisdiction in matters of external affairs, defence and communication was transferred to the Government of India and Union Parliament was given power to make laws for the State for the purposes of those three matters only. The Union Parliament had no jurisdiction in any other matter. Sovereignty, insofar as the internal administration of the state was concerned, remained with the ruler. This was as provided for by Clause 8 of the Instrument of Accession: "Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or save as provided by or under this Instrument, the exercise of any power, authority and right now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State."
Instrument of accession Unlike those from the other States, Kashmir’s representatives made it clear that Kashmir’s association with India would be based ‘only’ on the terms of the Instrument of Accession.
The Constitution of India laid down provisions not only for the former provinces of British India but also for the other princely States as full-fledged constituents units of the Union. In the case of Kashmir, it had to make special provisions to cover that particular case.
The basis of the constitutional relationship of Jammu and Kashmir with India was being changed from that created by the Instrument of Accession to the position under Article 370 of the Constitution of India.
The temporary nature of Art. 370 arises merely because the power to finalise the constitutional relationship between the State and the Union of India had been specifically vested in the Jammu and Kashmir Constituent Assembly.
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The internal administration of the state was even after its accession being governed by the Jammu and Kashmir Constitution Act, 1939.
At the time of their accession, it was made clear to all Indian States that their internal autonomy would be safeguarded and they would not be obliged to accept the Constitution of India. But whereas other Indian States lost their independence by supplementary instruments and by agreeing to the settlement of their constitutional position and powers by the Constituent Assembly of India, Kashmir chose to remain a unit of the Indian Federation only on the terms and conditions specified in the Instrument of Accession. The State, if it chose to assimilate its status to that of other Indian States, could do so by a supplementary instrument signed by the Sadar-i-Riyasat (the elected head of the State) on the recommendation of the State legislature. This legal position was set at rest by the Supreme Court of India in the case of Prem Nath Kaul v. the State of Jammu and Kashmir (AIR 1959 SC 749) wherein it was observed:
"We must, therefore, reject the argument that the execution of the Instrument of Accession, affected in any manner the legislative, executive and judicial power in regard to the Government of the State, which then vested in the Ruler of the State."
Again, the Supreme Court of India in the case of Rehman Shagoo v. State of Jammu and Kashmir (AIR 1960 SC 1) said: "When certain subjects were made over to the Government of India by the Instrument of Accession, the State retained its power to legislate even on those subjects so long as the State law was not repugnant to any law made by the Central Legislature."
States’ constitutions
In 1949, the Indian Constituent Assembly was coming to the end of its task. The Government of India conferred with the States, and it became obvious that the subjects of the States desired their Constitutions to form part of the Indian Constitution. A large number of Indian States had been represented in the Indian Constituent Assembly from the beginning and had taken part in the framing of the Constitution. During the drafting of the Constitution of India till 1949, the State of Jammu and Kashmir did not take any part in the debates as it had no representative in the Constituent Assembly. Since Jammu and Kashmir had acceded to India legally and factually, at the suggestion of the Government of India, the Yuvraj, in June 1949, on the advice of his Council of Ministers nominated four representatives to the Indian Constituent Assembly.
Unlike those from the other States, Kashmir's representatives made it clear that Kashmir's association with India would be based 'only' on the terms of the Instrument of Accession. "It was also made clear that, while the accession to the extent of the subjects enumerated in this Instrument, the autonomy of the State with regard to all other subjects outside the ambit of Instrument of accession should be preserved."
Under Clause (7) of the Instrument of Accession, the State did not commit itself to the acceptance of any future Constitution of India, nor fetter its discretion to enter into agreements with the Government of India under any such future Constitution. Despite the accession, the state was still to be governed by the old Constitution Act, 1939. This was because the Government of India had given an undertaking that the people of Kashmir could frame their own Constitution. (Constituent Assembly debates, Vol. X, No. 10, p. 422) The state had voluntarily surrendered three matters only to the Union of India and, therefore, the Government of India could not enlarge the sphere of its jurisdiction unilaterally.
The Constitution of India laid down provisions not only for the former provinces of British India but also for the other princely States as full-fledged constituents units of the Union. In the case of Kashmir, it had to make special provisions to cover that particular case. This was explained by Sri Gopalaswami Ayyangar, who moved the Bill for that purpose in the Indian Constituent Assembly. He said, "At present the State is a unit of a federal State, namely the Dominion of India. This Dominion is getting transferred into a Republic, which will be inaugurated on the 26th January, 1950. The Jammu & Kashmir State, therefore, has to become a unit of the new Republic of India".
During the debate Ayyangar said that the relationship of all States with the Government of India, till India became a Republic, was based on the Instrument of Accession and supplementary Instruments. But whereas in the case of other Indian States "Instruments of Accession will be a thing of the 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 becoming units of the Republic — "it would not be so in the case of Kashmir", since a part of "that particular State is still in the hands of the enemies" and in the second place, "…the Government of India have committed themselves to the position that an opportunity will be given to the people of the State to decide for themselves," the nature of their constitution. (Constituent Assembly Debates Vol. X, No. 10, p 422)
Drafting of Article 370
After this clarification by Ayyangar, the question of drafting Article 370 (Art. 306-A in the Draft Constitution) was considered. "In these negotiations it was made perfectly clear by the State Government that it was for the Constituent Assembly of the State to frame the Constitution of the State and that for any provision that may be made in the Constitution of India regarding Kashmir, the basis should be the 'Instrument of Accession' and till the Constituent Assembly of the State consented to accede in any other subject to the Union, the relationship between India and the State should be limited to the subjects specified in the 'Instrument of Accession'."
The Constitution of India was soon to come into force, so it was necessary to take steps for the enforcement in Kashmir of the provisions of the Indian Constitution as applicable there. Legally, the power to issue a proclamation for this purpose vested in the Ruler. So the Yuvraj, acting on the advice of his Council of Ministers, issued a proclamation on November 25, 1949, to the following effect:
"Whereas with the inauguration of the new Constitution for the whole of India now being framed by the Constituent Assembly of India, the Government of India Act, 1935, which now governs the constitutional relationship between this State and the Dominion of India will stand repealed.”
"I now hereby declare and direct that the Constitution of India shortly to be adopted by the Constituent Assembly of India shall, insofar as it is applicable to the State of Jammu and Kashmir, govern the constitutional relationship between this State and the contemplated Union of India and shall be enforced in this State by me, my heirs and successors in accordance with the tenor of its provisions.”
"That the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other Constitutional provisions inconsistent therewith which are at present in force in this State." (White Papers on Indian States, Appendix LIV page 371)
It is obvious that the basis of the constitutional relationship of Jammu and Kashmir with India was being changed from that created by the Instrument of Accession to the position under Article 370 of the Constitution of India. This Article covered the case of Kashmir only and gave Kashmir a special status in that the provisions governing the relationship of other Part B states did not apply to it. Article 238 (Article 211 in the Draft Constitution) which governed the relationship between Union of India and other Part B States was not to apply to Jammu and Kashmir.
Exclusive to Kashmir
The Constitution of India came into force on the January 26, 1950. Article 370 was to cover the case of Kashmir alone. "In view of the special problem with which the Jammu and Kashmir Government is faced, we have made special provisions for the continuance of the State with the Union on the existing basis," declared Sardar Patel, the then Home Minister, in the Indian Constituent Assembly.
Article 370, it was explained by Sardar Patel, was a device to continue the existing relationship of the Jammu and Kashmir State with the Union of India. It has been described as a "temporary provision" in the Constitution. This expression has given rise to a lot of debate about the scope of Article 370. The temporary nature arises merely because the power to finalise the constitutional relationship between the State and the Union of India had been specifically vested in the Jammu and Kashmir Constituent Assembly. The Constitution of India clearly envisaged the convening of a Constituent Assembly for the Jammu and Kashmir State and also provided that whatever modifications, amendments or exceptions that might become necessary either to Article 370 or to any other Articles in the Constitution of India in their application to Jammu and Kashmir were subject to the decision of that Assembly.
Therefore, the 'temporary' provision does not mean that the Article is capable of being abrogated, modified or replaced unilaterally. "I would like to make it clear," declared Sheikh Abdullah in the Kashmir Constituent Assembly, "that any suggestions of altering arbitrarily the basis of our relationship with India would not only constitute a breach of the spirit and letter of the Constitution, but it may invite serious consequences for a harmonious association of our State with India." (Jammu and Kashmir Constituent Assembly Debates Vol. IV No. 1-3 dated 11th August, 1952)
Nothing irregular
Jammu and Kashmir became an integral part of India after the execution of the Instrument of Accession. Therefore, Clause (1) (c) of Article 370 provides for the application of Article 1 of the Constitution of India, which defines the territory of India. The State was shown in the Constitution as a Part B State, but the provisions of Article 238, which generally governed the relationship of Part B States with the Union of India, were not applicable to this State. This might appear extraordinary, but it is not irregular, for unlike the other Indian States, Kashmir did not accept the application of the Indian Constitution in its entirety and had not executed any further Instrument, unlike the other Indian States. The Supreme Court of India opined that:
"The effect of the application of the present article (Article 370) has to be judged in the light of its objects and its terms considered in the context of the special features of the constitutional relationship between [the] State and India. The Constitution makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself…." (Prem Nath Kaul vs. the State of Jammu and Kashmir, AIR 1959 SC 749)
According to Clause (1) (c) of Article 370, the only Articles of the Constitution of India which applied of their own force to the State were Articles 1 and 370; Clause (1) (d) provided that the other provisions of the Constitution of India applicable to the State could be determined by the President of India in consultation with the Government of the State. Exceptions and modifications could be made in the same manner and the provisions could be enlarged too. "Power to modify includes a power to enlarge or add to an existing provision," held the High Court of Kashmir in the case of Sant Singh v. State, (AIR 1959 J & K 35), where the question was whether the enlargement of the provisions by the Government of India in consultation with the Government of Jammu and Kashmir.
Therefore, the term 'temporary' has been used in Article 370 so as to minimise the difficulty in the way of the amendment of the Constitution of India, whenever the necessity arises to modify or extend the scope of other provisions of the Constitution of India.
Laws for J&K
As a matter of fact, in exercise of the powers conferred by Article 370 (i) (ii), the President of India has issued a number of Constitution (Application to Jammu and Kashmir) orders from 1950 onwards applying various other provisions of the Constitution of India and the laws enacted by Parliament to the State of Jammu and Kashmir. The first such order was made in 1950, which was superseded by the 1954 order. There have been almost 45 amendment orders to the 1954 order till date applying various other provisions of the Constitution of India to the State.
A part of the territory of Jammu and Kashmir continues be under enemy occupation. That was one of the factors debated in the Constituent Assembly of India while enacting Article 370. As I have said above, it is by virtue of this Article that many provisions of the Constitution of India have been extended to the State of Jammu and Kashmir from 1950 onwards. More provisions may be extended by the President of India in consultation with Jammu and Kashmir. That is within the scope of Article 370 of the Constitution of India and the Supreme Court of India has said so in absolute clear terms.
— The writer is a former Chief Justice of India;
former Chairman, National Human Rights Commission; and former Chief Justice of the J&K High Court.