Through perverted legal arguments and distortion of the historical facts, they try to prove that J&K“unduly” enjoys a distinct position in the Indian Union which is “violative” of constitutional provisions
The special status that Jammu and Kashmir State constitutionally enjoys in the Union of India is being deliberately made contentious by a section of political thought in the country. The votaries of this political thought are trying to evolve a public opinion in the country in favour of doing away with the constitutional privileges of Jammu and Kashmir. Through a systematic campaign that has been there right from the day Kashmir acceded to India, this political thought that has its adherents from across the parties in the political spectrum of India, has ensured a sustained erosion of the special status of Jammu and Kashmir. And, now when this political thought has become more powerful in the country, an attempt is being made to do away with the remaining constitutional provisions that give special status to Jammu and Kashmir.
Through perverted legal arguments and distortion of the historical facts, it is being tried to prove that Jammu and Kashmir “ unduly” enjoys a distinct position in the Indian Union which is “ violative” of constitutional provisions. The distinctive character that Jammu and Kashmir bears vis- a- vis its accession to India, is purposely being muddled so as to bring this state on par with other constituent units in the Indian union.
To appreciate the distinct constitutional position of Jammu and Kashmir in its right perspective, one cannot run away from the historical facts. History bears witnesses that the accession of Jammu and Kashmir with India was unlike the accession of other states. Secondly, the constitution of India itself grants special privilege to Jammu and Kashmir. The state while acceding to India retained its distinct and special status. While in case of other states which acceded to India, the powers available and exercised by them are those which have been “ conceded” by the Union. In case of Jammu and Kashmir, powers are retained by the state except what has been given by it to the Union.
The Constitution ( Application of Jammu and Kashmir) Order, 1954 lays down foundation of relationship between the state and the union. Proviso to Clause II, Article 368 places an express embargo on application of amendment to a provision of constitution of India, to Jammu and Kashmir. The constitutional provisions as well as the amendments to the constitution can only be extended to the state through the mechanism laid down in Proviso to Clause 2, Article 368 of the Constitution read with Clause 1, Article 370.
A recent judgment in a case titled “ Ashok Kumar and others vs State and others” by a division bench of Jammu and Kashmir High Court comprising Justices Hasnain Massodi and Janak Raj Kotwal, gives valuable insight into the historical facts that led Jammu and Kashmir to accede to India and made this accession constitutionally different from that executed by other states. The historical facts given out in the judgment are followed by sound legal arguments that justify the special status of Jammu and Kashmir.
The court while dealing with the controversy raised in the petition relating to the right of reserved category government servants to accelerated promotion frames a number of pertinent questions vis- a- vis the status of the state. And, in its response to these questions, it goes deeper into the historical facts and factors responsible for the special status of Jammu and Kashmir. The judgment draws a direct link between the special status of Jammu and Kashmir and the constitutional provisions.
While discussing the historical background that led to accession of Jammu and Kashmir, the judgment reads: The State of Jammu and Kashmir like other 600 and odd princely States, regained its sovereignty on 15th August 1947, on the lapse of British Paramountcy, enactment of Indian Independence Act 1947 and emergence of Dominions of India and Pakistan. This was made clear by Cabinet Mission Memorandum dated May 12, 1946 as regards “ States Treaties and Paramountcy” and Statement of Viceroy of May 16, 1946, to the effect that “ Paramountcy can neither be retained by the British Government nor transferred to the new Government.” The Government of India Act, 1935, earlier envisioned accession of a Princely State to the Dominion. In terms of Section 6 of the Act, such a State was to be deemed to have acceded to the Dominion if the Governor General conveyed his acceptance of Instrument of Accession executed by the Ruler of the State. The Instrument of Accession was to abide by Section 6 of the Act as adopted by Section 9 of the Indian Independence Act, 1947. It is pertinent to point out that Government of India Act, 1935 was adopted and operated after independence till Constitution came into force on Jan. 26, 1950.
To have a better understanding of the issue, an extensive part of the judgment merits to be reflected here: It reads: “ The Ruler of an Indian Princely State having regained absolute sovereignty on the lapse of Paramountcy and end of its Treaty obligations towards Imperial power, got power to decide future of his State including an option to accede to either of the two Dominions, India or Pakistan, in accordance with Cabinet Mission Memorandum 1946, Statements of June 3, July 25, 1947 and the Indian Independence Act, 1947. Same was true about Jammu and Kashmir. The power to accede included a choice to accept the Constitution of the Dominion to which accession was made subject to such conditions as put by the Ruler and accepted by the Dominion.
“ Though almost all the Princely States with few exceptions acceded to either of the Dominions before 15th August 1947, the Ruler of Jammu and Kashmir did not immediately accede to either of the Dominions. He wanted sometime to take a decision. He entered into a standstill agreement with Dominion of Pakistan.
His proposal to enter into a similar agreement with Dominion of India could not materialise, as the Dominion of India desired further discussion on the matter.” Before the ruler of Jammu and Kashmir could have entered into discussions with India for a similar agreement, there were developments in the State that could not make such discussions possible. The state was attacked by the raiders.
“ The Ruler in October, 1947,” the judgment reads, “ approached Dominion of India for help to meet the challenge that confronted the State. The Dominion of India had its reservations.
It conveyed its inability to deploy troops of Indian Army in absence of a formal accession by the Ruler to the Dominion. The Ruler realising that the help sought may not come unless he decided to accede to Dominion of India signed Instrument of Accession on October 26, 1947. The Governor General of Dominion of India accepted the accession of the State to Dominion of India and conveyed acceptance to the Ruler on 27th October 1947. Governor General in the same communication conveyed decision to send troops of Indian Army to the State to help it in defending territory of the State, protecting life and property of people of the State.
“ The immediate object of the accession, unlike other Princely States, therefore, was to make possible and legitimize deployment of troops of Indian Army to the State. This is what we also gather from following statement of Prime Minister of the State in Jammu and Kashmir Constituent Assembly on 5th November 1951; “ When the raiders were fast approaching towards Srinagar, we could think of only one way to save the State from total annihilation— by asking for the help from a friendly neighbour. ….. But the absence in constitutional ties between our State and India made it impossible for her to render us any effective assistance in meeting the aggressor”. “ Though the Instrument of Accession signed by the Ruler of the State was similar to such Instruments signed by Rulers of other Princely States, to the extent it conceded power to Dominion Legislature, the Federal Court and other Dominion Authorities i. e. Defence, External Affairs and Communications, in relation to the State and such powers and functions vested under Government of India Act 1935 as in force on August 15th 1947, yet the attending circumstances of the signing of Instrument of Accession and its acceptance, sufficiently indicate that contemporaneously with the signing of the Instrument of Accession, a Constitutional framework was conceived whereunder the State unlike other States that acceded to Dominion of India, was to enjoy a special constitutional status. This is gatherable from following facts and events that took place around and after signing of the accession: The text of Instrument of Accession, though, similar to such Instruments signed by other Princely States and cover the same subjects i. e.
foreign affairs, defence and communication, yet the paras 4 and 7 of the Instrument of Accession and the Communication whereby Governor General accepted the accession, made it clear that Dominion of India did not treat accession by the State to Dominion of India, in the manner it treated accession made by other Princely States to the Dominion. It was made sufficiently clear that the State was to stand on different pedestal and to be given distinct and different status as regards constitutional powers, it was to enjoy after accession. It would be advantageous to reproduce paras 4 and 7 of the Instrument of Accession and the Communication whereby Governor General conveyed to the Ruler acceptance of Accession of State to the Dominion of India.
“ 4. I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor- General and the Ruler of this State whereby any functions in relation to the administration in this State of any law of the Dominion Legislature shall be exercised by the Ruler of this State, then any such agreement shall be deemed to form part of this Instrument and shall be construed and have effect accordingly.
7. Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangement with the Government of India under any such future constitution.” The acceptance letter reads: My Dear Maharaja Sahib, “ Your Highness’ letter dated 26th October 1947, has been delivered to me by Mr. V. P. Menon. In the circumstances mentioned by Your Highness, my Government have decided to accept the accession of Kashmir State to the Dominion of India. In consistence with their policy that in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with wishes of the people of the State, it may Government’s wish that, as soon as law and order have been restored in Kashmir and its soil is cleared of the invader, the question of state’s accession should be settled by a reference to the people.
Meanwhile, in response to your Highness’ appeal for military aid, action has been taken today to send troops of the India Army to Kashmir, to help your own forces to defend your territory and to protect the lives, property, and honour of your people. My Government and I note with satisfaction that your Highness has decided to invite Sheikh Abdullah to form an interim Government to work with your Prime Minister.
“ That the Dominion of India and the State at the time Instrument of Accession was signed by Ruler and accepted by Dominion of India had decided to work out a Constitutional framework, whereunder the State was to retain sovereignty to a limited extent, is also reinforced by the fact that while the Constituent Assemblies/ Rulers/ Raj Parmukas of all the Princely States that acceded to Dominion of India in November 1949 ( before November 26th 1949 – the date Constitution was adopted) decided to accept the Constitution and consented to application of Constitution in its entirety to their States, such a decision was not taken by the Ruler of the State. It was thereby made sufficiently clear that the Dominion of India had decided to treat the State differently, and not at par with other States.
“ The Ruler a few months after signing of the Instrument of Accession, in the Declaration of 5th March, 1948 announced his resolve to constitute a National Assembly to frame Constitution for the State. “ The State did not adopt Government of India Act, 1935 or the Constitution for the intervening period till Constituent Assembly was convened, Constitution framed and adopted, but decided to adopt and abide by Jammu and Kashmir Constitution Act, Svt. 1986 ( 1939 A. D.).
“ The fact that the parties had agreed on a Constitution relationship different from one applicable to other acceding Princely States, was evident when Draft Clause 306 ( A) ( corresponding to Article 370) was introduced in the Constituent Assembly of India. Shri N. Gopal Swami Ayanger, while introducing the Draft Clause identified following amongst eight special circumstances that persuaded the Framers to incorporate the Draft Clause in the Constitution.
8) that the Will of the people expressed through the instrument of a Constituent Assembly would determine the Constitution of the State as well as the sphere of the Union jurisdiction over the State.
“ Shri Ayanger explaining the scope of Article 370 in the Constituent Assembly on October 17th 1949 stated; “ 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 the 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 …” He further remarked: “ The Government of State feels 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… 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 Draft Clause 306 was adopted by Constituent Assembly as Article 370 without any changes and without much discussion.
“ The Constitutional framework worked out by Dominion of India and the State reflected in Article 370 has its roots in paras 4 and 7 of Instrument of Accession. It in the first place, provided for convening of a Constituent Assembly to frame Constitution of the State. Reference, in this regard, may be made to Clause ( 2) and proviso to Clause ( 3) of Article 370. The Head of the State issued a proclamation on May 1st 1951 for convening the Constituent Assembly for the State, to decide the future of the State. The object of the Constituent Assembly as stated by Mr. Ayanger, was to determine “ the Constitution of the State as well as sphere of Union jurisdiction over the State”. The Constituent Assembly was also to take a final call on the application of laws made by the Parliament to the State in consultation with or with the concurrence of the State Government. The Constituent Assembly commenced its proceeding on 31st October, 1951. The Constitution was adopted on November 17th 1956 and the members put their signatures on the Constitution on November 19th 1956.
The Resolution to dissolve the Constituent Assembly was passed on November 17th 1956 and the Assembly dissolved on January 25th 1957. The Constitution of Jammu and Kashmir came into force on January 26th 1957.
The State unlike other States of the Union, therefore, has its own Constitution with Preamble reflecting core constitutional values, Directive Principles of State Policy, mapping out its constitutional goals, the extent of its executive and legislative powers and its relationship with Union of India etc. etc.
“ The other facet of the Constitutional arrangements agreed upon, related to special status of the State, allowing it to exercise powers on the subjects that in case of other States were within exclusive domain of the Union Government, and restricting power of the Union Government to legislate on such subjects, by making it, subject to consultation or concurrence of the State Government within the meaning of paragraph ( ii) of sub- clause ( b) of clause ( 1) or in the second proviso to sub- clause ( d), Article 370. In terms of Article 370 Parliament’s legislative power over the State is primarily confined to three subjects mentioned in the Instruments of accession i. e. Defence, Foreign Affairs and Communications.
The President, however, has power to extend to the State other provisions of the Constitution as also other laws that relate to the subjects specified in the Instrument of Accession. While extending such provisions and laws, the exercise of the power involves consultation with the State Government. In such matters, only “ consultation” is required as the State is taken to have accepted the Instrument of Accession, therefore, dispensing with the requirement of concurrence. The President has even power to extend other provisions of the Constitution or other laws not related to subjects enumerated in the Instrument of Accession to the State provided the State Government gives concurrence to extension of such Constitutional provisions, application of laws. In other words, laws on subjects included in the Union List and Concurrent List may be extended in consultation with State Government while laws on other subjects are to be extended to the State only with concurrence of the State Government.
“ Article 370 of the Constitution embodies conceptual framework of relationship between Union of India and State and lays down broad features of special status granted to the State. It, as already pointed out, at the same time confers power on the President to deal with the areas otherwise within domain of the State, subject to consultation or concurrence with the State. Article 370 is the only provisions of the Constitution that applies to the State, on its own. The only other provision applied to the State by the Constitution itself, is Article 1 made applicable by sub clause ( c) clause ( 1) Article 370. The Constituent Assembly in terms of proviso to Clause ( 3) Article 370 is conferred power to recommend to the President that Article 370 be declared to cease to be operative or operate only with the exceptions and modifications mentioned in the recommendation, if any so made. It is only on such recommendations that the President in terms of Clause ( 3) Article 370 of the Constitution may, by public notification, declare that Article 370 shall cease to be operative or shall be operative only with such exceptions and modifications and from such date, specified in the notification. The Constituent Assembly did not make such a recommendation before its dissolution on January 25th, 1957. Resultantly, Article 370, notwithstanding its title showing it a “ temporary provision” is a permanent provision of the Constitution. It cannot be abrogated, repealed or even amended as mechanism provided under Clause ( 3) of Article 370 is no more available. Furthermore, Article 368 cannot be pressed into service in this regard, inasmuch as it does not control Article 370 – a self contained provision of the Constitution.
“ To have a good idea about extent of special status or autonomy enjoyed by the State, we have to go through Constitutional ( Application to Jammu and Kashmir) orders issued by the President, applying Constitutional provisions and other laws to the State.
Such orders widen the powers of the Union Government in matters related to the State with correspondence decrease in powers of the State Government.
“ President of India, in exercise of powers under Article 370 ( 1) ( d), has issued Constitutional ( Application to Jammu and Kashmir) orders from time to time applying various Constitutional provisions to the State with exceptions and modifications.
First such Order was made on January 26th 1950. Second schedule to the Order specified Constitutional provisions applied to the State, in addition to Articles 1 and 370 of the Constitution. This was followed by Constitutional ( Application to Jammu and Kashmir) Order, 1954. The Order applied various Constitutional provisions with modifications, detailed therein, to the State. The Order did not only modify text of Constitutional provisions applied to the State but in case of some of such provisions, deleted part of text, added to the text, or added provisos to existing Constitutional Orders. It even added new Article like Article 35A to the Constitution in its application to the State.
“ The State as on date continues to enjoy autonomy in areas covered by the provisions of Constitution not extended to the State. Most of the provisions of the Constitution applied to the State are extended with exceptions and modifications to maintain and preserve special status granted to the State. To suit autonomy granted to the State, provisions like Article 35A and proviso to Article 253 and proviso to Clause 2 Article 368 have been added to the provisions of Constitution, as applied to the State. The Article 35A gives protection to existing laws in force in the State and to any law enacted after 1954 by the State legislature, defining the classes of persons treated as permanent residents of the State, conferring on permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects employment in the State Government, acquisition of immovable property in the State, settlement in the State or right to scholarship and other aids granted by the State. Proviso to Article 253 even guarantees a say or role to the Government of the State in decision affecting the disposition of the State.
In terms of Proviso to Clause ( 2), Article 368 no amendment made to the Constitution is to have effect in relation to the State, unless applied by the order of the President under Clause ( 1) of Article 370.” Regarding the applicability of the constitution and amendment to the constitution to Jammu and Kashmir, the judgment reads: The President, therefore, has while adding proviso to Clause ( 2) Article 368, in effect, provided that amendment to any Constitutional provision, though earlier applied to the State, would not apply to the State except by an order issued in accordance with mechanism devised under Article 370, acted within his powers under Article 370( 1).
The historical facts and legal position expatiated in the judgment suggest that all the controversies raised over the special status of Jammu and Kashmir should rest now.
In terms of Article 370 Parliament’s legislative power over the State is primarily confined to three subjects mentioned in the Instruments of accession i. e. Defence, Foreign Affairs and Communications. The President, however, has power to extend to the State other provisions of the Constitution as also other laws that relate to the subjects specified in the Instrument of Accession. While extending such provisions and laws, the exercise of the power involves consultation with the State Government. In such matters, only “ consultation” is required as the State is taken to have accepted the Instrument of Accession, therefore, dispensing with the requirement of concurrence. The President has even power to extend other provisions of the Constitution or other laws not related to subjects enumerated in the Instrument of Accession to the State provided the State Government gives concurrence to extension of such Constitutional provisions, application of laws. In other words, laws on subjects included in the Union List and Concurrent List may be extended in consultation with State Government while laws on other subjects are to be extended to the State only with concurrence of the State Government.
Nissar Bhat enbhat@ gmail. com
