Accession, not Merger Article 370 is temporary, yet cannot be abrogated, or amended
Late Sheikh Mohammad Abdullah was absolutely right when he said while describing J&K’s relations with India that Jammu and Kashmir is part of India in a similar manner as a drop of oil in the bucket of water. Though a drop of oil on water becomes a part of it, yet it has its unique identity and does not merge with the water. He has in a very simple language described the relationship of Jammu and Kashmir with Union of India.
No doubt, Jammu and Kashmir has acceded to India but it has not merged with the Union of India as against other Indian States which merged with the Union of India surrendering all powers of law making to the Union. Despite Accession Jammu and Kashmir retained all residual powers other than those surrendered to the Union of India under the Instrument of Accession signed by the then Maharaja of Kashmir and the Union Government. All other States merged with the Union of India unconditionally while the Accession of Jammu and Kashmir to India was conditional. All other States accepted the Constitution of India while Jammu and Kashmir was the only State for which the Constitution of India accepted the right of the people of Jammu and Kashmir to frame the Constitution for the State.
The Indian Constitution came into force on 26th January 1950 and the Article 370 was to cover the case of Jammu and Kashmir alone. The then Home Minister of India Sardar Patel while speaking on the issue in the Indian Constituent Assembly said that 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. The existing bases were the basis of Instrument of Accession and the special provisions were embodied in Article 370 of Constitution of India which reads as:
Temporary Provisions with respect to the State of Jammu and Kashmir
1. Notwithstanding anything in this Constitution –
a. The provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir.
b. The power of the Parliament to make laws for the State shall be limited to –
I) Those matters in the Union list and the concurrent list which, in consultation with the Government of State are declared by the President to correspond to matters specified in the Instrument of Accession governing the Accession of the State to the dominion of India as the matters with respect to which the dominion legislature may make laws for that State; and
ii) Other such matters in the aid list as, with the concurrence of the Government of State, the President may by order specify.
C The provisions of Article 1 and of this Article shall apply in relation to the State.
D Such of the other provisions of this Constitution shall apply in relation to the State Subject to such exceptions and modifications as the President may by order specify
* Provided that no such order which relates to the matter specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State.
* Provided further that no such order which relates to the matters other than those referred to in the last proceeding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) are in the second proviso to sub-clause (d) of the clause 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 of such decision as it may take thereof.
(3) Notwithstanding anything in the foregoing provisions of this Article the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify;
* Provided that the recommendation of the Constituent Assembly referred to in clause (2) shall be necessary before the President issues such a notification.
So the proviso to clause (3) of the Article 370 categorically states that the recommendation of Constituent Assembly is necessary before the Article 370 is abrogated or modify.
Justice A. S. Anand, the Former Chief Justice of India in his book ‘The Constitution of Jammu and Kashmir – Its Development and Comments’, observes “the Article has been described as a temporary provision in the Constitution. The temporary nature of the Article arises merely because the power to finalize 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 Constituent Assembly for Jammu and Kashmir State and also provides 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 State 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”.
Justice Anand quotes Sheikh Mohammad Abdullah once declaring that any suggestions of altering arbitrarily the basis of our relationship with India would not only constitute a breach of spirit and letter of the Constitution, but it may invite serious consequences for a harmonious association of our State with India.
Justice Anand says that in present context the term temporary has been used so as to minimize the difficulty in the way of amendment of the Constitution of India whenever the necessity arises to abrogate, modify or extend the scope of Article 370 by agreement. Thus, the question of modifying the Article 370 without the agreement and consent of the Constituent Assembly is not possible. This is the reason that the learned Jurist Ramjeth Malani in the capacity of the then Law Minister in BJP Government said that abrogation of Article 370 requires constitutional cope.
Justice Anand further observes that at the time of their Accession it was may clear to all the Indian States that their internal autonomy would be safeguarded and they would not be obliged to accept the Constitution of India. “But were as 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 choose to remain a unit of Indian Federation only on the terms and conditions specified in the Instrument of Accession signed by the Sadr-e-Riyasat on the recommendation of the State Legislature”.
Justice Anand further writes “once Article 370 became applicable and enforceable there is no question of it having ceased to apply only because Article 394 was subsequently deleted. The provisions of the Article continue to remain in force and effective even after the Constituent Assembly at the State enacted the Constitution of India”. He further writes “the facts analysed above make it clear that the State of Jammu and Kashmir enjoys a special position in the Union of India and this position of the State has been permitted by Article 2 of the Constitution of India itself”.
Justice Anand quotes “in arriving at this agreement”, declared Sheikh Mohammad Abdullah the then Prime Minister Jammu and Kashmir “the main consideration before our Government was to secure a position for the State which would be consistent with the requirements of maximum autonomy for the local organs of the State power which are the ultimate source of authority in the State while discharging obligations as a unit of the Federation”.
In his historic observation the then Chief Justice of India maintains “though in India there has been a centralising tendency yet in the case of Kashmir it can be argued and maintained that Patel’s process of unionisation was not extended to it”. He says that the relationship of Kashmir with India was initiated on a Federal basis and there was a clear division of sovereignty between the Centre and this State, which is the normal feature of Federation, beyond the powers transferred by it to the Union, the State enjoyed complete residuary sovereignty. This arrangement was embodied in Article 370 of the Constitution of India.
Thus, in the legal view the Jammu and Kashmir though agreed to be a part of India yet has not merger totally with the Union of India but retained its residuary sovereignty beyond the powers transferred to India through the Instrument of Accession.
It is worthwhile to mention here the Instrument of Accession and the letters Maharja Hari Singh wrote to Lord Mountbatten produced by Justice Anand in his book.
“I have to inform your Excellency that a grave emergency has arisen in my State and request the immediate assistance of your Government. As your Excellency is aware the State of Jammu and Kashmir has not acceded to either the Dominion of India or Pakistan. Geographically my State is contiguous with both of them. Besides my State has a common boundary with the Union of Soviet Socialist Republic and with China. In their external relations the Dominions of India and Pakistan cannot ignore this fact. I wanted to take time to decide to which Dominion I should accede or whether it is not in the best interest of both the Dominions and my State to stand independent, of course with friendly relation with both”.
After this paragraph followed an account of the tribal invasion and then Maharaja wrote:
“With the conditions obtaining at present in my State and the grate emergency of the situation as it exists, I have no option but to ask for help from the Indian Dominion. Naturally, they cannot send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government”. He further wrote “I may also inform your Excellency’s Government that it is my intension at once to set up an Interim Government and to ask Sheikh Abdullah to carry the responsibilities in the emergency with my Prime Minister”.
The operative part of the Instrument of Accession reads as:
“I Shriman Inder Mahinder Rajeshwar Maharajadhiraj Shri Hari Singh Ji Jammu and Kashmir Naresh Tatha Tibat adi Deshadhipati Rural of Jammu and Kashmir State in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession”
But after accepting the Instrument of Accession Lord Mountbatten wrote a letter to Maharaja Hari Singh in which he writes; “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 with the wishes of the people of the State, it is my Government’s wish that, as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of State’s accession should be settled by a reference to people”.
This statement has figured as the most controversial feature of Kashmir’s Accession to India and critics of the Accession have steadfastly maintained that this stipulation renders the accession conditional, writes Justice Anand adding that the present writer believes that this statement does not and cannot effect the legality of the Accession.
After giving further justification for the legality of the Accession, Justice Anand writes “however, Pakistan refused to recognize this Accession, Dawn, the Muslim League official organ quoted Mr. Liaquat Ali Khan saying – we do not recognize this Accession. The Accession of Kashmir is a fraud, perpetrated on the people of Kashmir by its cowardly rural with the aggressive help of the Indian Government”. A few days later the same newspaper quoted Pakistan Prime Minister saying – there is not the slightest doubt that the whole plot of Accession of Kashmir to India was pre-planned. It cannot be justified on any moral or political grounds. The same thesis was presented by Sir Mohammad Zafarullah Khan, Pakistan Foreign Minister in 1951. Justice Anand says that Sir Zafarullah also alleged in support of his argument that the Maharaja had no authority to sign the Instrument of Accession as he had lost the confidence of his people. Justice Anand says that it is difficult to regard the Pakistani charges as anything more than abuse. (Reference – Page 68 ‘The Constitution of Jammu and Kashmir – its development and comments’, 6th edition, by Justice A. S. Anand, published by Universal Law Publication Company, New Delhi India).
On page 73 of the book, Justice Anand writes on January 27, 1948 India and Pakistan submitted draft proposals to the President of Security Council on the appropriate methods of solving the Kashmir dispute. “It was in this proposal that India agreed to the holding of a plebiscite in Kashmir as the ultimate determinant of Kashmir’s status. The Indian representative observed on the floor of the Council – In accepting the Accession they (India) refused to take advantage of the immediate peril in which the State found itself and informed the Ruler that the Accession should finally be settled by plebiscite as soon as peace had been restored.
In this article my attempt has been to pin point the historic facts and the legal position of Article 370 and apprise the common people about the whole issue. While concluding I may mention that the statements made by Omar Abdullah in this regard and his tweets on the subject are definitely based on the legal grounds. He may not be the Jurist but his position and his statements have full legal force and are substantiated by the historic facts.
All the statements from RSS and BJP leaders including the Union MOS in PMO, Dr. Jatinder Singh on the subject are totally against the spirit of Indian Constitution and depict their ignorance vis-a-vis Article 370. I suppose that they do it for political purpose but forget its ramifications and effect on the State-Centre relations.
I recommend to all the people interested in the subject to go through the comprehensive Book, written by Former Chief Justice of India, Justice A. S. Anand the resident of Jammu and Kashmir.
INSTRUMENT OF ACCESSION
Full text of the Instrument of Accession executed by Maharajah Hari Singh on October 26, 1947
Whereas the Indian Independence Act, 1947, provides that as from the fifteenth day of August, 1947, there shall be set up an independent Dominion known as INDIA, and that the Government of India Act 1935, shall with such omissions, additions, adaptations and modifications as the Governor General may by order specify, be applicable to the Dominion of India.
And whereas the Government of India Act, 1935, as so adapted by the Governor General, provides that an Indian State may accede to the Dominion of India by an Instrument of Accession executed by the Ruler thereof.
Now, therefore, I Shriman Inder Mahinder Rajrajeswar Maharajadhiraj Shri Hari Singhji, Jammu & Kashmir Naresh Tatha Tibbet adi Deshadhipati, Ruler of Jammu & Kashmir State, in the exercise of my Sovereignty in and over my said State do hereby execute this my Instrument of Accession and
1. I hereby declare that I accede to the Dominion of India with the intent that the Governor General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State of Jammu & Kashmir (hereinafter referred to as “this State”) such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India, on the 15th day of August 1947, (which Act as so in force is hereafter referred to as “the Act’).
2. I hereby assume the obligation of ensuring that due effect is given to provisions of the Act within this State so far as they are applicable therein by virtue of this my Instrument of Accession.
3. I accept the matters specified in the schedule hereto as the matters with respect to which the Dominion Legislature may make law for this State.
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 the State, then any such agreement shall be construed and have effect accordingly.
The terms of this my Instrument of Accession shall not be varied by any amendment of the Act or the Indian Independence Act, 1947, unless such amendment is accepted by me by Instrument supplementary to this Instrument.
6. Nothing in this Instrument shall empower the Dominion Legislature to make any law for this State authorizing the compulsory acquisition of land for any purpose, but I hereby undertake that should the Dominion for the purpose of a Dominion law which applies in this State deem it necessary to acquire any land, I will at their request acquire the land at their expense, or, if the land belongs to me transfer it to them on such terms as may be agreed or, in default of agreement, determined by an arbitrator to be appointed by the Chief Justice of India.
7. Nothing in this Instrument shall be deemed to commit in any way to acceptance of any future constitution of India or to fetter my discretion to enter into agreement with the Government of India under any such future constitution.
8. 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 powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.
9. I hereby declare that I execute this Instrument on behalf of this State and that any reference in this Instrument to me or to the Ruler of the State is to be construed as including a reference to my heirs and successors.
Given under my hand this 26th day of October, nineteen hundred and forty seven.
Maharajadhiraj of Jammu and Kashmir State.
Schedule of instrument of Accession
The matters with respect to which the dominion Legislature may make laws for this state
1. The naval, military and air forces of the Dominion and any other armed forces raised or maintained by the Dominion; any armed forces, including forces raised or maintained by an acceding State, which are attached to, or operating with, any of the armed forces of the Dominion.
2. Naval, military and air force works, administration of cantonment areas.
3. Arms, fire-arms, ammunition. Explosives.
B. External Affairs
1. External affairs; the implementing of treaties and agreements with other countries; extradition, including the surrender of criminals and accused persons to parts of His Majesty’s Dominions outside India.
2. Admission into, and emigration and expulsion from, India, including in relation thereto the regulation of the movements in India of persons who are not British subjects domiciled in India or subjects of any acceding State; pilgrimages to places beyond India.
1. Posts and telegraphs, including telephones, wireless, broadcasting, and other like forms of communication.
2. Federal railways; the regulation of all railways other than minor railways in respect of safety, maximum and minimum rates and fares, station and services terminal charges, interchange of traffic and the responsibility of railway administrations as carriers of goods and passengers; the regulation of minor railways in respect of safety and the responsibility of the administrations of such railways as carriers of goods and passengers.
3. Maritime shipping and navigation, including shipping and navigation on tidal waters; Admiralty jurisdiction.
4. Port quarantine.
5. Major ports, that is to say, the declaration and delimitation of such ports, and the constitution and powers of Port Authorities therein.
6. Aircraft and air navigation; the provision of aerodromes; regulation and organisation of air traffic and of aerodromes.
7. Lighthouses, including lightships, beacons and other provisions for the safety of shipping and aircraft.
8. Carriage of passengers and goods by sea or by air.
9. Extension of the powers and jurisdiction of members of the police force belonging to any unit to railway area outside that unit.
1. Election to the Dominion Legislature, subject to the provisions of the Act and of any Order made thereunder.
2. Offences against laws with respect to any of the aforesaid matters.
3. Inquiries and statistics for the purposes of any of the aforesaid matters.
Jurisdiction and powers of all courts with respect to any of the aforesaid matters but, except with the consent of the Ruler of the acceding State, not so as to confer any jurisdiction or powers upon any courts other than courts ordinarily exercising jurisdiction in or in relation to that State.