The most important feature of Federalism in the United States of America was the compact between the erstwhile 13 British Colonies that constituted themselves first into a Confederation and then into a Federal Polity under the 1791 Constitution of the United States of America. In a Confederation, Units do have a right to secede, but in a Federation they do not have such a right though in this system they are given a lot of autonomy to operate within their allotted spheres.

The Supreme Court of India in State of West Bengal Vs. Union of India, 1963 AIR 1241 too had attached the highest importance to an agreement or compact between States as an essential characteristic of Federalism. Since such as an agreement was not there in India, it held that India was not a Federal Polity.

Subsequently, the same was overruled and Federalism was recognized as the Basic Structure of the Constitution of India in Keshavand Bharti Vs State of Kerala & Anr. , AIR 1973 SC 1461 and reiterated in the S. R. Bommai Vs Union of India , AIR 1994 SC 1918.

Article 370 of the Constitution of India is an essential facet of our Federalism as like in the compact in the US, it governs the Centre’s relationship with Jammu & Kashmir. It is, therefore, necessary to understand the origin of Article 370 of Constitution of India, the related constitutional issues such as its temporary status and frequent calls for its abrogation, and the Supreme Court’s response to these issues.

At the time of Independence, there were two kinds of territories in India -- one was British India that was under the direct administrative control of the British. The other comprised the Princely States that had signed subsidiary alliance treaties with the British and had a British Resident posted in their territories. The Maharajas, Rajas and Nizams were still the De jure Rulers administering these Territories/States. In vital matters of war and peace, these Rulers were required to take the concurrence of the British Resident.

The Indian Independence Act, 1947 divided British India, i.e., the territories under the direct administration of the British, into two countries -- India and Pakistan -- on August 15, 1947. But some 580 Princely States that had signed subsidiary alliances with the British also had their sovereignty fully restored to them and given three options -- to remain as Independent Countries, or join the Dominion of India or join the Dominion of Pakistan. Section 6 (a) of the 1947 Act said that this act of joining one of the two countries was to be through an Instrument of Accession . Though no prescribed form was provided, a State so joining under Section 6 (2) of the 1947 Act could specify the terms on which it was deciding to join one of the new dominions.

These terms would be those which the Ruler of the Princely State accepted as matters on which the dominion legislature (Indian Parliament) may make laws for the State. And also with respect to the limitations on the power of the dominion legislature to make laws for the State and exercise executive authority of the dominion in the said Princely State . Thus, the Instrument of Accession was supposed to regulate and govern the distribution of powers between the Central Government and the concerned Princely State .

Technically speaking, the Instrument of Accession was, therefore, like a treaty between two sovereign countries which had decided to work together. It was just like any other contract between two countries. The maxim under international law which governs contracts or treaties between States is Pucta Sunt Servanda, i.e., promises between States must be honoured. If there is a breach of contract, the general rule is that parties are to be restored to the original position, i.e., the pre-agreement status.

Pre 1947, Kashmir was a Princely State with a Hindu King and a majority Muslim population. Due to its strategic geographical location, its Ruler Maharaja Hari Singh initially decided to remain independent and preferred to sign standstill agreements with India and Pakistan. Pakistan had accepted his proposal and operated the post and telegraph system in Kashmir. But when there was an invasion by the Afridis, Tribesmen and Army Men in plain clothes from Pakistan, Maharaja Hari Singh sought India’s help and India responded that it could send its army only after Kashmir acceded to India. This was a just demand.

Hari Singh, on the advice of Sheikh Abdullah, thus signed the Instrument of Accession on certain terms on 26th October, 1947 and Lord Mountbatten as Governor General of independent India accepted it on 27th October, 1947 on behalf of the Government of India. The Schedule appended to the Instrument of Accession gave the Indian Parliament power to legislate for Jammu & Kashmir on only Defence, External Affairs and Communications. In Clause 5 of Jammu & Kashmir’s Instrument of Accession , Maharaja Hari Singh explicitly mentioned that the terms of my Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument. Its Clause 7 said 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 arrangements with the Government of India under any such [a] future Constitution.

Sheikh Abdullah was a popular leader of Kashmir and the Chief of the National Conference. Maharaja Hari Singh first appointed Sheikh Abdullah as Head of the Emergency Council on 30th October, 1947 with 22 other Officers. Maharaja Hari Singh then appointed Sheikh Abdullah as his Prime Minister on 05th March, 1948. Through the March 1948 Proclamation, Maharaja Hari Singh also directed that a Constitution be framed for his State. Accordingly, in India’s acceptance of the Instrument of Accession of Jammu & Kashmir, Governor-General Lord Mountbatten, clearly stated It is my Government’s wish that as soon as law and order is restored in Kashmir and her soil is cleared of the invader, the question of the State’s accession be settled by a reference to the people. Thus, India regarded accession as purely temporary and provisional. This was said in the Government of India’s White Paper on Jammu & Kashmir in 1948.

In a letter to Sheikh Abdullah dated 17th May 1949, Pt. Jawahar Lal Nehru, with the concurrence of Vallabhbhai Patel and N. Gopalaswami Ayyangar (who drafted Article 370), wrote as under;
It has been settled policy of Government of India, which on many occasions has been stated both by Sardar Patel and me, that the Constitution of Jammu & Kashmir is a matter for determination by the people of the State represented in a Constituent Assembly convened for the purpose.

Between Nehru and Patel, Nehru due to his Kashmiri lineage was keen to have Kashmir in India. Patel on the other hand was more interested in getting Hyderabad. The Instrument of Accession eventually had to be made part of the Constitution of India so that the powers of the Government of India and Parliament vis-a-vis Jammu & Kashmir are clearly delineated. Article 370 of Constitution of India is nothing but a constitutional recognition of the conditions mentioned in the Instrument of Accession that the ruler of Jammu & Kashmir signed with the Government of India in 1948. It reflects the contractual rights and obligations of two parties.
The original draft of Article 370 of Constitution of India was given by the Government of Jammu & Kashmir. This was then modified and negotiations were held between the Government of India and the State of Jammu & Kashmir for over five months.

Finally, Article 306-A (now 370) was passed in our Constituent Assembly on 27th May, 1949. N. Gopalaswami Ayyangar, member of the Assembly moved the motion. He also reiterated, though accession is complete but we have offered to have plebiscite taken when conditions are created for the holding of a proper, fair and impartial plebiscite. He also said if accession is not ratified then we shall not stand in the way of Kashmir separating herself away from India.

On 16th June, 1949, Sheikh Abdullah and three others joined Constituent Assembly as its members. The commitment to the plebiscite and drafting of a separate Constitution by Jammu & Kashmir’s Constituent Assembly was repeated by Ayyangar on 17th October, 1949 when Article 370 was finally adopted and included in the Constitution of India by the Constituent Assembly.

Court Rulings
Article 370 of Constitution of India is the first Article of Part XXI of Constitution of India and is unique in many ways. The heading of this part is Temporary, Transitional and Special Provisions. The Article exempted Jammu & Kashmir from the Constitution of India and permitted it to draft its own Constitution. It restricted Parliament’s legislative powers in respect of Jammu & Kashmir to extend a Central law to Jammu & Kashmir on the subjects included in the Instrument of Accession , mere consultation with the State Government is needed but to extend other matters, concurrence of the State Government is mandatory. There is a huge difference between consultation and concurrence. In the former, discussions would suffice but in the latter acceptance by the other party, i.e., the Government of Jammu & Kashmir, is mandatory.

Article 370 of Constitution of India was temporary in the sense that the Constituent Assembly of Jammu & Kashmir was given the right to modify/delete/retain it. The Constituent Assembly of Jammu & Kashmir decided in its wisdom and rightly so to retain it. The other view was that it was temporary till a plebiscite was held to ascertain the people’s wishes. The Narendra Modi Government itself said in 2018 in a written reply in Parliament that there was no proposal to remove Article 370 of Constitution of India.

The Delhi High Court in W.P.(C) 9300/2015 Kumari Vijayalaxmi Jha Vs Union of India & Anr., , Vide its Judgment dated April 11, 2017 rejected a petition holding that Article 370 of Constitution of India was temporary and its continuation a fraud on the Constitution. The Supreme Court too said in April 2018 that despite the headnote using the word temporary, Article 370 of Constitution of India was not temporary.

The Apex Court in State Bank of India Vs Santosh Kumar Gupta & Anr. , in Civil Appeal No. 12237-12238 of 2016 Vide its Judgment dated December 16, 2016 also accepted that due to historical reasons, Jammu & Kashmir had a special status.

In Prem Nath Kaul Vs State of Jammu & Kashmir , AIR 1959 SC 749, a five-judge bench of the Supreme Court observed on Article 370 (2):
This clause shows 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 Article 370 (1) is made conditional on the final approval of the Constituent Assembly of Jammu & Kashmir.

Jammu & Kashmir’s Constituent Assembly was thus given the right to take a call on Article 370 of Constitution of India. The unanimous Judgment was authored by Justice P. B. Gajendragadkar on his behalf and on behalf of Chief Justice of India S. R. Das, Justices S. K. Das, K. N. Wanchoo and Mohammad Hidaytullah.

Thus the Bench of eminent Judges was convinced that Jammu & Kashmir’s relationship with India was to be finally determined by the Jammu & Kashmir Constituent Assembly. But in Sampat Prakash Vs State of Jammu & Kashmir , AIR 1969 SC 1153, another Bench of the Apex Court, without even bothering to cite its own 1959 Judgment, decided that Article 370 of Constitution of India could still be invoked even after the dissolution of Jammu & Kashmir’s Constituent Assembly.

The Supreme Court has refused to accept that Article 370 of Constitution of India is temporary in nature. A five-Judge Bench held, Article 370 of Constitution of India has never ceased to be operative. Thus, Article 370 of Constitution of India is a permanent provision. If it is a permanent feature of our Constitution then it cannot be amended and thus can be said to be the part of the Basic Structure. Under Article 368 of Constitution of India, Parliament can amend any provision of the Constitution of India but as per the Keshvanand Bharti Judgment, no constitutional amendment can either destroy the Constitution or alter its basic features. Interestingly, those opposed to Article 370 of Constitution of India make contradictory arguments-. On the one hand, they argue it was a temporary provision and, therefore, is no more valid or needed. On the other, they continue to justify repeated use of Article 370 of Constitution of India by the Government of India.

The Supreme Court has the power to interpret words used in the Constitution of India. In fact its decisions under Article 141 of Constitution of India are considered binding law. Thus, the Court in its interpretation of life under Article 21 held that life means to live with human dignity. It even held that the right to privacy is implicit in Article 21 of Constitution of India. Similarly, it held that the word temporary in the heading of Chapter XXI does not mean temporary. Any temporary provision may indeed be termed as special. Thus the word special in the heading of this Chapter was inserted by the 13th Constitutional Amendment in 1962. Sardar Patel himself had said in the Constituent Assembly that a special provision had been made for the Kashmir in view of the existing relationship of the Centre with the State of Jammu & Kashmir.

In fact, there are temporary provisions in the of Constitution of India such as reservation for the Scheduled Castes (SCs)/ Scheduled Tribes (STs) in Parliament and State Assemblies which were initially there just for 10 years. English, for instance, was temporarily permitted as the language of Governmental work.

The Constituent Assembly of Jammu & Kashmir was convened on 31st October, 1951 and after adopting the Jammu & Kashmir Constitution a decision was taken to dissolve it from 26th January, 1957. On the other hand, after the signing of three copies of the Constitution of India on 24th January, 1950, India’s Constituent Assembly was merely adjourned sine die.

The Article 370 (3) of Constitution of India can probably be deleted with the concurrence of the State Legislative Assembly, which today represents the will of the people through the elected representatives.

Presidential Orders and the Hollowing Out of Article 370
On December 19, 2018, the President of India issued a proclamation declaring President’s rule in J&K. Under the proclamation, the President assumed to himself all the functions of the Government of the state and declared that the powers of the state legislature would be exercised by Parliament.

Three Things Happened In Quick Succession Thereafter:

1. Firstly, on August 05, 2019, the President of India issued an order, C.O. 272, which said that henceforth, any amendment of Article 370 was possible upon a recommendation of the Legislative Assembly instead of the Constituent Assembly of J&K. This was very clever – since President’s Rule was imposed in J&K, India’s BJP-dominated Parliament was acting as the Legislative Assembly of J&K. Parliament could therefore ask the President to amend or repeal Article 370.
   
   
2. Next, both Houses of Parliament issued a recommendation to the President of India to abrogate Article 370. Consequently, on Aug. 06, 2019 the President of India issued a declaration making Article 370 inoperative.
   
   
3. Finally, on Aug. 09, 2019 Parliament enacted the Jammu and Kashmir Reorganisation Act, 2019, which took away the statehood of J&K altogether and bifurcated the State into two Union Territories: Jammu & Kashmir, and Ladakh, both of which will be Centrally administered. In short, President of India and Parliament fundamentally altered the constitutional status of Jammu & Kashmir without the consent of her elected representatives.

Over time the frequent use of Presidential Orders – allowed under Article 370 of the Constitution of India – to extend the writ of the centre to Jammu & Kashmir has considerably weakened this special provision in the Constitution of India.

Pt. Jawhar Lal Nehru himself admitted in Lok Sabha on 27th November, 1963 that Article 370 of the Constitution of India has eroded. India has used Article 370 of the Constitution of India more than 45 times to extend provisions of the Constitution of India to Jammu & Kashmir. Even President Rajendra Prasad was not very happy about the frequent use of Article 370 of the Constitution of India and he wrote a letter to Nehru on 6th September, 1952 specifically saying that executive powers should not be used in this manner. As a matter of fact, by the use of mere Presidential Orders we have almost nullified the effect of the special constitutional status of Jammu & Kashmir.

By the Presidential Order of 1954, almost the entire Constitution of India (including most constitutional amendments) was extended to Jammu & Kashmir. Ninety-four out of 97 Entries of the Union List are today applicable to Jammu & Kashmir. Thus, on 94 subjects Parliament already has the exclusive power to pass laws that will be applicable to Jammu & Kashmir just like any other State. Two hundred and sixty out of 395 Articles of the Constitution of India have been extended to the State of Jammu & Kashmir. Similarly of the 12 Schedules of the Constitution of India, seven have already been extended to Jammu & Kashmir.

Surprisingly, the Central Government has used Article 370 of the Constitution of India to even amend a number of provisions of Jammu & Kashmir’s Constitution though that was not the power given to it under this Article of the Constitution of India. Article 370 of the Constitution of India had a limited mandate to extend the applicability of the Constitution of India to Jammu & Kashmir. Thus Article 356 of the Constitution of India (on imposition of President’s Rule in the States) was extended to Jammu & Kashmir though a similar provision was already there in Article 92 of Jammu & Kashmir’s Constitution, which indeed required imposition of President’s Rule in the State only with the concurrence of the President of India.

To change the provision (in the Jammu & Kashmir Constitution) of the Governor being elected by the State Assembly, Article 370 of the Constitution of India was used to convert the position into a nominee of the President of India. This was an undemocratic step as Governors have proved to be the Centre’s agents in the State. In fact, ideally, the Governor of each State should be elected by the Legislative Assembly of the State. If he is to be nominated by the Centre, the concurrence of the Chief Minister should always be taken.

To extend President’s Rule beyond one year in Punjab, the Central Government had to bring in the 59th, 64th, 67th and 68th Constitutional Amendments as Article 356 (5) explicitly lays down that President’s Rule in a state cannot be extended beyond one year unless there is a national emergency or the Election Commission of India certifies that elections cannot be held to the state’s legislative assembly.

We achieved the same result in Jammu and Kashmir just by invoking Article 370 of the Constitution of India without any need to amend the Constitution of India. Similarly Article 249 of the Constitution of India, i.e., the power of Parliament to make laws on entries in the State List, was extended to Jammu & Kashmir without a resolution by the State Assembly. It was done just on the recommendation of the then Governor Jagmohan. There is hardly anything in Article 370 of the Constitution of India except the shell. In fact, decades ago Gulzari Lal Nanda, the then Union Home Minister, had said it had been almost completely emptied. It is more useful for the Central Government than for the people of Jammu & Kashmir.

Even while the core of Article 370 of the Constitution of India has been eroded, it does of course does have huge sentimental value for the people of Jammu and Kashmir who would view its abrogation with a great deal of unhappiness. In any case it will be violation of commitments given by us to at the time of accession of Jammu & Kashmir.

Article 3 of the Jammu and Kashmir Constitution itself declares the State to be an integral part of India. In the preamble of the Jammu & Kashmir Constitution, not only is there no claim to sovereignty like in the Constitution of India, but rather there is a categorical acknowledgement about the object of the Jammu & Kashmir Constitution which is to further define the existing relationship of the state with the Union of India as its integral part thereof . (emphasis supplied).

Moreover, the people of the State of Jammu & Kashmir referred as mere permanent residents not citizens. Thus, due to Article 370 of the Constitution of India and the decision by the Jammu & Kashmir’s Constituent Assembly to remain part of the Indian Union, the Jammu & Kashmir Constitution did not proclaim the sovereignty of Jammu & Kashmir. It makes no claim to independent citizenship.

Conclusions
Since October 1947 the Instrument of Accession was the basis of J&K’s accession to India and that no change would be made to it without the consent of her people. In the early years, Indian leaders had gone so far as to suggest that a plebiscite would be held wherein the people of Kashmir would be given the right to decide to even secede from the Union of India. Though a plebiscite is no longer feasible, the motive force of Article 370 of Constitution of India was that no fundamental constitutional change would be brought about in J&K without the concurrence of her people through their elected representatives.

By a clever process of legal drafting, the Government of India has now radically altered the constitutional position of J&K without so much as consulting her elected representatives. For this reason, the President’s declaration repealing Article 370 of Constitution of India, which relies on the resolutions of both Houses of Parliament instead of the State legislature of J&K, violates the spirit of Article 370 of the Constitution, though perhaps not its letter.

Since Jammu & Kashmir is an integral part of India, keeping in view Federalism and the unique history of the State joining the Indian Union, the State of Jammu & Kashmir has been given some autonomy under Article 370 of Constitution of India.

Article 370 of Constitution of India is certainly not an issue of integration; it is an issue of granting autonomy or federalism. Those who advocate its deletion are more concerned with uniformity rather than integration. Uniformity and integration are not the one and the same. Preservation of diversity and granting autonomy indeed lead to lasting integration.

Written By: Damini Singh Chauhan - Semester 9th, The Law School, University of Jammu.
Email: [email protected]

Articles on 370 Jammu and Kashmir Special Status

1. Abrogation of Article 370 of Constitution of India consistent with the Principles of Indian Federalism
2. Amendment in Article 370 of Indian Constitution
3. The Emergence of New Jammu And Kashmir
4. Whether Abrogation of Article 370 And Bifurcation of State of J and K Is Legitimate Or Not?
5. Articles 370 and 35A of the Constitution of India have now been Buried Ultimately
6. Does Scrapping of Art 370 Poses A Threat to Asymmetrical Federalism In India
7. Amendment of Article 370 And Issues Arising Thereof
8. It Is Not About Bhoomi Maatr It Is About Maatr Bhoomi Revocation of Article 370 And Article 35-A
9. Jammu And Kashmir No More Special
10. Brief on Article 370 And President Order Dated 05/08/2019
11. Legal History of Article 370 and 35A and Current Status
12. Article 35-A A Biggest Fraud on Constitution of India
13. Temporary provision about Jammu & Kashmir
14. Integration of J&K With India Is Now Full And Final
15. Jammu and Kashmir HC Upholds PM's Employment Package (2009) For Kashmiri Pandits Living In The Valley
16. J&K Now Stands Fully And Firmly Integrated With India
17. Daring Resolve Taken By Centre on Jammu And Kashmir
18. The Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 and The Jammu and Kashmir Re organization Bill, 2019