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before the Narendra Modi government moved The Constitution (Application to Jammu and Kashmir) Order, 2019 which has now repealed Art 370 and its illegitimate child Art 35A.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.