Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution
—Zaid Deva, Candidate for B.A/LL.B (Hons.), Gujarat National Law University, India; Founding Editor, Indian Journal of Constitutional & Administrative Law
Article 370, as the House will remember, is a part of certain transitional provisional arrangements. It is not a permanent part of the constitution. As a matter of fact, as the Home Minister has pointed out, it has been eroded, if I may use the word, and many things have been done in the last few years which have made the relationship of Kashmir with the Union of India very close. There is no doubt that Kashmir is fully integrated.
This was Jawaharlal Nehru, speaking on Article 370 in the Lok Sabha.[1] On another occasion, G. L. Nanda, the then Home Minister noted, “What happens is that only the shell is there. Article 370, whether you keep it or not, has been completely emptied of its contents. Nothing has been left in it.”[2]
Article 368 of the Indian constitution provides the procedure for its amendment. While rest of the provisions have been ‘amended’ from time to time, for Article 370, on the other hand, immediately after its insertion the process of ‘erosion’ was started, as is apparent from the above two statements.
When we talk of constitutional making, Article 370 of the Indian constitution, stands out perhaps as one of the most controversial provisions (although posing a unique position which requires a serious academic inquiry) to be inserted in any of the federal constitutions in the modern world. In a country, widely regarded as quasi-federal, where enough provisions are there in the national constitution dealing with state matters, Article 370, in its current interpretations, governs the relationship of the Union, with a unit, having its own constitution. As it happens, the State of Jammu & Kashmir is the only state to negotiate its terms of membership with the Union of India.[3]
Taking a strictly legal perspective, Article 370 (Article 306-A in the draft constitution) was inserted in the Indian Constitution to make a place for the special status of the state created by the Instrument of Accession.
Before delving into the position created by the Instrument, it is essential to look at the background and the legislation which provided for such accessions. It should be noted that it was the Government of India Act, 1935, and not the Indian Independence Act, 1947, which provided for mechanism of the accession of Indian states to the Federation sought to be established. The latter act, under Section 8(2) merely recognized the Act of 1935 as the interim constitution till the enactment of a Constitution by a Constitutional Assembly convened for that purpose.[4] Hence, in so far as the accession of princely states to either of the dominions were concerned, the same was governed by the Act of 1935, in particular, Section 6.[5] As a direct consequence of the Indian Independence Act, and specifically under Section 7(b)[6] the British suzerainty came to an end, thereby bringing an end to the exercise of powers of paramountcy by the British. In other words, this meant that the rights of the Indian states which did flow from their relationship to the crown would no longer exist and that all the rights surrendered by these states to the paramount power would return to them.[7](Under the British rule, the Indian subcontinent comprised of British India, provinces which were directly ruled by the Crown, and the Indian States/Princely States, which were semi-sovereign ruled by the local ruler over which the British exercised paramountcy). Therefore, it can be said that from August 15th to October 22nd, 1947, the State of Jammu & Kashmir existed as a sovereign country, exercising its power to enter into arrangements with India by virtue of its sovereignty, as observed by Sheikh Abdullah in his address to the Constituent Assembly of the state.[8]
By virtue of the Instrument of Accession[9] executed on October 26th, 1947 the Maharaja of the State acceded to India in respect of three subject matters, Defence, External Affairs and Communications. As mentioned before, the Government of India Act, 1935 provided for these Instruments, by way of which the princely states were given an opportunity to accede to the Federation i.e. cede a subject matter to the Union, over which it could legislate previously. This was used, post independence, by the princely states to join the Dominion of India. The important clauses of the Instrument which require attention are: Clause 5) 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. Clause 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 an agreement with the Government of India under any such future constitution. With this background, let’s understand Article 370 while trying to remove the confusions that still lurk around this provision.
Pursuant to the Instrument of Accession, Article 370 was inserted in the Constitution of India after much deliberations and negotiations. Its characteristic features are:
1) The provisions of Indian Constitution are not applicable to the state except Article 370, and it is through this article that Article 1, which defines the territory of Union of India, was made applicable to the state
2) With regard to the power of parliament to make laws for the state, the same is limited to those matters in the Union & Concurrent List, which correspond to the matters specified in the Instrument, provided the President declares such corresponding/comporting of entries vis. the Instrument in consultation with the state government, through a Presidential Order
3) Matters/Entries from Union List not covered in above can be made applicable, with the concurrence of the State government, by Presidential Orders, which again shall be placed before the Constituent Assembly, once it is convened in terms of Article 370(2)
4) Other provisions of the Constitution shall apply to the state subject to such exceptions and modifications as the President may by Order specify, provided with regard to matters specified in the Instrument shall be issued in consultation with the government of the state, and with regard to matters other than those referred to in preceding proviso the concurrence of the state government is required, and such concurrence would, under the terms of Article 370(2) required to be placed before the Constituent Assembly, once convened
5) The legislative power of the State, is exhaustive, and unbridgeable in respect of matters covered in the State List and as a special feature, residuary matters fall within the realm of the state
6) This special provision cannot be repealed/abrogated unilaterally, by merely issuing a Presidential Order; it requires the recommendation of the Constituent Assembly of the State
An essential feature of this Article is laid down under clauses (2) and (3) in respect of the power of the Constituent Assembly of the State. It should be noted here that, the aforesaid power of the Constituent Assembly is not derived from Article 370. The Constitution merely recognizes what was executed by the Maharaja in his Instrument of Accession, more particularly in Clause 5.
By employing standard interpretative tools, there is no doubt that Article 370 was inserted as a temporary provision. Since, the Instrument of Accession (or any treaty for that matter) could not hold in the constitutional regime that India was about to enter, without being recognized by the constitutional text, Article 370 was incorporated, to effectuate the special position for the State created by the Instrument. As there was no constituent body representing the will of the people, it was envisaged that various provisions of the constitution would be extended to the State after consultation with the state government (which was interim in nature). The constituent assembly of the state, representing the sovereign will of the people was tasked with coming up with a constitution for the state, decide on the finality of accession, give a framework to the relationship with the Union of India (decide on the extent of federal jurisdiction), and after all that was done, finally recommend changes to be made to Article 370. Had matters proceeded as planned, today, Article 370 would not define the relationship with the Union of India.
N Gopalaswami Ayyangar’s exposition of Article 370 is very pertinent in this regard.[10]
We have also agreed that the will of the people, through the instrument of the constituent assembly will determine the constitution of the state as well as the sphere of Union jurisdiction over the State. Till it comes into being, only an interim arrangement is possible. (It is argued that Article 370 was inserted to govern this interim arrangement).
He further goes on to say that:
when the Constituent Assembly of the state has met and taken its decisions both on the Constitution for the state and the range for federal jurisdiction over the state, the President on the recommendation of that Constituent Assembly issue an order that this article shall cease to be operative…..but the recommendation of the Constitution Assemble will be a condition precedent.
This proves two things:
1) Article 370 is a temporary provision. It was envisaged that before the Constituent Assembly of the state disperses, the range of federal jurisdiction would have been determined, and a fresh mechanism suggested for more extensions in the future, by way of recommending the amendment to Article 370. Since the Constituent Assembly did not recommend any change to Article 370, could it be said that the relationship that exists of today, continues to be of a transitory nature? All changes which were made post 1957 (the year the state constitution was adopted) are invalid in law, as the final shape to the constitutional framework could be given by the constituent assembly alone Even if the otherwise is assumed, the same would require ratification by a constituent assembly.
2) The demands of removing Article 370 are also misconceived. Many people have argued that since the constituent assembly doesn’t exist the President is free to act. In making these politically motivated statements, people miss out on the fact that Article 370(3) makes it abundantly clear that it cannot be removed unilaterally, and that the President and the Union are incompetent in making any change to the Article 370, without the prior recommendation of the Constituent Assembly of the state..
The question that arises here, is what happens to the presidential orders passed post 1957 extending various provisions of the Indian Constitution from time to time? (1957 is the year when the constituent assembly was dissolved. Post 1957, by way of various Presidential Orders, the federal jurisdiction was extended beyond what was initially envisaged, making the state more like rest of the states in the Indian Union. Many people have raised their doubts as to the legitimacy of these Presidential Orders.) One interpretation could be that the legislative assembly exercising constituent functions possesses the power to ratify the orders as required under Article 370(2). The second and the more concrete interpretation would be to re-convene a Constituent Assembly by making a law for it under residuary powers of the state. The SC in the Golaknath case observed that, “..the power of amendment is ‘not all comprehensive there will be no way to change the structure of our Constitution or abridge the fundamental rights even if the whole country demands for such a change. Firstly, this visualizes an extremely unforeseeable and extravagant demand; but even if such a contingency arises the residuary power of the Parliament may be relied upon to call for a Constituent Assembly for making a new Constitution or radically changing it.”[11] In the case of the Jammu & Kashmir, the residuary power lies within the domain of the state. Even though this case was overruled by the Supreme Court in Keshavnanda Bharti, no final decision could be arrived at, with regards to the above holding of the court in the Golaknath case.
In constitutional theory, this provision poses a peculiar position. As a part of the constitution, over which one sovereign body has the full power to make amendments, when it comes to Article 370, prior recommendation of another sovereign body is required. One of the agreed conclusions of the Indira-Sheikh Accord of 1975 was that the State of Jammu & Kashmir, in its relations with the Union of India, shall continue to be governed by Article 370 of the Constitution of India. Such an agreement is a fraud on the constitution, as what was envisaged by the Constituent Assembly of India and then subsequently by that of the state, cannot be altered by an accord between the executive heads of the respective governments. (Shiekh Abdulla was the first Prime Minister of the state. He was dismissed from office in 1953, and subsequently arrested. After his release, he entered into an accord with the then Prime Minister of India, Indira Gandhi. In the accord, many things as regards the constitutional relationship of the state with the Union were agreed to.) That would have required a formal amendment in the provision as per the procedure laid down in the Constitution. The Constituent Assembly of India did not envision a situation where the Indian Constitution in its application to the State of Jammu & Kashmir, could be modified by mere Presidential Orders for all times to come.[12] Answering this doubt, Nehru in his letter to President Prasad said, “Because of all this [reference of Kashmir Issue to UN by India], a special provision [Article 370] was made in our constitution in the transitory clause, so that we can give effect to changing circumstances without having recourse to a formal amendment of our constitution.”[13]
The Plebiscite Front in their White Paper observed, “The Constitution of the Indian Union, therefore, clearly envisaged the convening of a Constituent Assembly for the Jammu & Kashmir State which would be finally competent to determine the ultimate position of the State in respect of the sphere of its accession which would be incorporated in the shape of permanent provisions of the Constitution.”[14]
It won’t be wrong to suggest that, as it stands today, and in so far as parliament’s amending power or the President’s power to issue orders, is concerned, Article 370 has become an unamendable feature the Indian Constitution.
Suggested Citation: Zaid Deva, Seventy Years of Accession: Reflections on Article 370 of the Indian Constitution, Int’l J. Const. L. Blog, Dec. 27, 2017, at: http://www.iconnectblog.com/2017/12/seventy-years-of-accession-reflections-on-article-370-of-the-indian-constitution
[1] Jawaharlal Nehru on the ‘Erosion’ of Article 370, Lok Sabha, 27 Nov. 1963, Lok Sabha Debates, Vol. XII, cols 1231-2.
[2] Union Home Minister G. L. Nanda on Abrogation of Article 370, Lok Sabha, 4 December 1964. Lok Sabha Debates, 4 December 1964, Vol. XXXIII, cols 3449-65.
[3] A. G. Noorani, Article 370: A Constitutional History of Jammu & Kashmir, (Oxford University Press, New Delhi, 2011).
[4] See Indian Independence Act, 1947, http://www.legislation.gov.uk/ukpga/1947/30/pdfs/ukpga_19470030_en.pdf.
[5] See Government of India Act, 1935, http://lawmin.nic.in/legislative/textofcentralacts/GOI%20act%201935.pdf.
[6] Supra note at 4.
[7] The Cabinet Mission’s Memorandum on Indian States, Treaties and Paramountcy, Cmd. 6835, HMSO London.
[8] Sheikh Abdullah’s Speech to the Constituent Assembly on 5 November 1951 – Jammu & Kashmir Constituent Assembly Official Report. Volume I (1951-5), pp. 55-81.
[9] See the Instrument of Accession, at <http://www.jammu-kashmir.com/documents/instrument_of_accession.html.>
[10] Constituent Assembly Debates, Volume X, pp. 422-7.
[11] AIR 1967 1643.
[12] See Indira-Sheikh Accord, 1974, https://www.mainstreamweekly.net/article3395.html.
[13] Nehru’s Letter to President Rajendra Prasad, Dated 19 June 1952.
[14] White Paper of the Government of Jammu & Kashmir on the Delhi Agreement Entitled ‘India & Kashmir- Constitutional Aspect, citing Sheikh Abdullah’s statement in the Constituent Assembly on 11th August 1952.
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