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Articles 370 and 35A of the Constitution of India have now been Buried Ultimately

The President has, on the recommendation of Parliament, issued 'The Jammu And Kashmir Reorganization Act, 2019' [Act No. 34 of 2019] a Declaration under Article 370 (3) of the Constitution of India in exercise of his powers under Article 370 (3) read with Article 370 (1) of the Constitution to declare that all clauses of Article 370 would cease to be operative from August 06, 2019, except the clause to the effect that (a) II provisions of this Constitution, as amended from time to time, without any modifications or exceptions shall apply to Jammu and Kashmir (J&K), notwithstanding anything contrary contained in the Constitution or the Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 or otherwise.

Such Presidential Order is the culmination of dramatic steps taken by New Delhi in issuing the Constitution (Application to Jammu and Kashmir) Order, 2019 under Article 370 (1) and the passage of the Jammu and Kashmir Reorganization Bill, 2019 in Parliament.
Article 370 (3) of Constitution of India provides President of India has the powers to amend or repeal the Article by issuing a notification, based on a recommendation of Constituent Assembly of Jammu & Kashmir. President of India signed the Constitution (Application to Jammu & Kashmir) Order, 2019 on August 5, 2019, regarding Article 370 (1), under which all the provision under Article 4 would be applicable to J&K. J&K Constituent Assembly would be read as J&K Legislative Assembly. Similar changes to Article 370 have been done in the past as well. Now since President’s Rule is in force in the State, implementation of Article 370 has ceased to exist as the President of India issued the notification in this regard, after this House passed the resolution.

After issuing August 05, 2019 orders all orders or amendments issued under the same clause in 1954 stand revoked. In the Constitution (Application to Jammu and Kashmir) Order, 1954 the then Congress Government had taken recourse to the same clause and had brought in Article 35-A. In terms of legalities, the President of India signed Constitution (Application to Jammu & Kashmir) Order, 2019 on the morning of August 5, 2019, now called Constitutional order 272.

Both Houses of the Parliament have approved through a majority vote the revocation of Article 370 in the Constitution. In another bill which also stands passed by both the Houses, J&K has been bifurcated into two Union Territories, one of Ladakh and the other of Jammu & Kashmir.

Notably, Government has also amended Article 367 of Constitution of India and added Clause (iv) to it which now includes Jammu & Kashmir in General Category along with other States. Earlier, it was not included in the category of States referred to as the said States in this Article. But now it is also a part of the said States. Jammu and Kashmir is now like any other State when it comes to applying constitutional provisions.

The power which was vested in Legislative Assembly of the State is now vested in the Governor (read Lt. Governor). Earlier the Assembly used to recommend to the Governor and the later used to recommend further to the President of India. But now like any other State, the Council of Ministers will give advice to the Lt. Governor. Constituent Assembly is now to be read as Legislative Assembly. Thus the compulsion to have Constituent Assembly to scrap Article 370 of Constitution of India is not required.

Two issues were brought forward in Parliament. Clause (ii) and (iii) of Article 370 of Constitution of India were scrapped. According to these clauses, the recommendation of Assembly was required to scrap Article 370. But now only Clause (i) remains. Two Union Territories have been carved out. Ladakh is a Union Territory without Assembly. It will have two Hill Councils and a Lieutenant Governor. Jammu-Kashmir has been made a Union Territory with an Assembly. The Lt. Governor as the Administrative Head continues to perform his role.

By this move, Government of India has achieved three objectives: firstly, it has removed the preferential treatment accorded to J&K and applied the entire Constitution to Jammu & Kashmir; secondly, it has bifurcated Jammu & Kashmir into two Union Territories – J&K with a legislature and Ladakh without a legislature; thirdly, it has made the State Legislative Assembly (instead of its Constituent Assembly) the competent authority to make the recommendation to the President of India to declare Article 370 of Constitution of India inoperative.

Kashmir owes its origin to a legendary rishi (ascetic-scholar) Kashyap, who is credited to have reclaimed it from a huge lake that existed where Kashmir Valley is located today. The land was first called in ancient literature Kashyapmar, which was corrupted to become Kashmir. Maurya emperor Ashoka had a strong connection with Kashmir. He founded the city of Srinagar and brought Buddhism to Kashmir, which saw a number of ruling dynasties till the middle of fourteenth century. Around this time, a Tibetan Buddhist refugee Rinchana, who later converted to Islam, established first Muslim dynasty in Kashmir. When Akbar became the Mughal emperor, he annexed Kashmir to his empire.

The State of Jammu & Kashmir acquired its modern shape under Ranjit Singh, who established a Sikh confederation and annexed Kashmir from the Mughal empire in early 19th century. The administration of Jammu & Kashmir was given to a local chieftain from the Dogra community, who expanded it by capturing Ladakh and Baltistan for the Sikh empire.

By this time, the British rule of East India Company was getting stronger in India. The company had successfully challenged the advance of Sikh empire, whose leader Maharaja Ranjit Singh was forced to sign a Treaty of Amritsar in 1809, which was formalised in 1846 after first Anglo-Sikh war. This treaty decided the fate of Jammu & Kashmir.

The British trader-rulers sold the dominion of Jammu & Kashmir to Dogra King Gulab Singh for Rs 75 lakh. The Dogra King ruled over the regions of Jammu, Kashmir Valley, Gilgit-Baltistan and Ladakh. The arrangement continued till 1947, when the British divided the Indian subcontinent into two countries - India and Pakistan. Before August 15, 1947 Indian Territories were governed by Britishers. Those Territories which were governed by the Britishers directly called British India. In British India, there was no role of Kings or Nawabs, who governed their Territories directly, which were known as Princely States. There were 565 Princely States.

According to Lord Mountbatten Plan, it was declared that British India would be divided into parts namely (i) Dominion of India & (ii) Dominion of Pakistan. Following the Lord Mountbatten Plan, Independence of India Act, 1947 was passed by the British Parliament. Principle of Lapse of Paramountcy was enshrined in Section 7 of the Independence Act, 1947, stating that there were no agreement with any Princely State. Three options were given to the Princely States either to choose India or Pakistan or to be an Independent Country.

The political agreement of 3rd. June, 1947 to partition the Indian sub-continent was crystallized in British statutes - the Indian Independence Act, 1947 and the modified Government of India Act, 1935. While India is an ancient civilization, modern-day India and Pakistan are creations of these statutes and have chosen to abide by such constitutional law governing the sub-continent. There is no doubt about the legitimacy of an 'India' and a 'Pakistan' as created by these statutes, and both countries have been recognized by the United Nations as Sovereign Member States.

Pre Constitutional Political and Legal History
Maharaja Hari Singh, the only surviving son of Maharaja Amar Singh, was the King of Jammu & Kashmir, who appeared to chart out his own way without acceding to India or Pakistan. It signed a standstill treaty with Pakistan, which breached the agreement by invading Jammu and Kashmir in October 16, 1947. Mohd. Ali Jinnah wanted to use force for acquiring land of Kashmir. Pakistan with the help of the tribal Imilitias attacked Kashmir on October 22, 1947. Brigadier Rajender Singh, stopped them from entering Uri by blasting the bridge and restrained them for two days, but sacrificed his life.

After two days the Pakistani invaders entered into Uri on October 24, 1947 and captured Hydro-Power Station. They cut electricity of Kashmir. They reached Baramullah, just 54 kilometres from Srinagar. The Pakistani invaders committed murders, rapes, loot etc. Maharaja Hari Singh signed the Instrument of Accession with India on October 26, 1947 and decided to join Dominion of India.

The princely State of Jammu & Kashmir was a sovereign State as of 15th August, 1947 as per this constitutional law creating India and Pakistan. It was in terms of such law that the Ruler of Jammu & Kashmir, who was the sole repository of power in the State, chose to accede to India through the Instrument of Accession of 26th October, 1947. Such accession by the Ruler, though unconditional, was only in matters of External Affairs, Communications and Defence and certain ancillary matters.

The Instrument of Accession declared that nothing therein would affect the continuance of the sovereignty of the Ruler in or over Jammu & Kashmir. Unlike other princely States acceding to India, the sovereign Ruler of Jammu & Kashmir did not thereafter merge the territory of the State into the Indian Union nor accede further subjects to India.

Even so, it was not contemplated that a ruler would remain the constitutional head of a State within a democratic Indian Republic. Hence, there was to be a transfer of power from the Ruler of Jammu & Kashmir to a duly elected State Constituent Assembly. And so, the Constitution of India itself contemplated in Article 370 that Jammu & Kashmir would have its own Constitution framed by its own Constituent Assembly. Since there was still to be a transition from Monarchy to a form of Government that was to be decided by a State Constituent Assembly that was yet to be set up, and which would also finally determine the constitutional relationship of Jammu & Kashmir with the Indian Union, Article 370 of Constitution of India was described as a temporary provision and placed under Part XXI of the Constitution of India which deals with Temporary, Transitional and Special Provisions.

To appreciate the true import of the temporariness of Article 370 of Constitution of India, one needs to only go through the decision of the Constitution Bench of Hon'ble Supreme Court of India in Premnath Kaul (1959). Accordingly, the Constitution of India was made applicable to Jammu & Kashmir only through Article 370 of Constitution of India, and it was through Article 370 of Constitution of India that Article 1 of the Constitution (which lists the States of India and their territories) was extended to Jammu & Kashmir.

The State Constituent Assembly, subsequently set up in 1951, regarded the constitutional relationship of Jammu & Kashmir with India as one of an autonomous republic within the Indian Union. This relationship was later crystallized in the Delhi Agreement, 1952, which was duly ratified by the Indian Parliament and the State Constituent Assembly, and which inter alia permitted the State Legislature to make laws conferring special rights and privileges upon the State Subjects. The President of India, with the concurrence of Jammu & Kashmir, exercised the power under Article 370 of Constitution of India to issue the Constitution (Application to Jammu & Kashmir) Order, 1954, which inserted provisions like Article 35-A to give effect to the Delhi Agreement and also applied further Articles of the Indian Constitution to J&K (with modifications).

Another provision inserted by this 1954 Order was the proviso to Article 3 of the Indian Constitution of India. This provision mandates that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State. In other words, Jammu & Kashmir has not only not merged its territory into the Indian Union, it has explicitly preserved its territorial integrity as also identity. That, incidentally, also rules out trifurcation of Jammu & Kashmir without its consent.

Article 370 of Constitution of India itself mandates a recommendation of the State Constituent Assembly before the President of India can declare Article 370 of Constitution of India inoperative. The State Constituent Assembly dispersed after framing the Constitution of Jammu & Kashmir in 1957, without, however, making any such recommendation. Nor can a recommendation of the State Legislature (unlikely as it may be) be a substitute for the requisite recommendation of the State Constituent Assembly. It therefore follows that the competence of any organ of the Indian State to declare Article 370 of Constitution of India inoperative no longer exists.

Commentators who identify Article 370 of Constitution of India as an obstacle to full integration of J&K into India plead that the abrogation of Article 370 (and Article 35-A) would remove the preferential treatment accorded to the State, permit citizens from across the country to settle in J&K and buy land there, and assimilate the people of J&K into the mainstream. Others argue for honouring the autonomy guaranteed by Article 370 of Constitution of India, asserting that it is Article 370 of Constitution of India that makes J&K a part of India, and should Article 370 of Constitution of India be abrogated, the accession of J&K to India itself gets undone. The contention is that Article 1 of the Indian Constitution (which lists the States of India) is made applicable to J&K by Article 370 of Constitution of India itself, and if Article 370 of Constitution of India goes, so does the application of Article 1 of the Indian Constitution to J&K, which would render J&K independent of India.

J&K became an integral part of India not by virtue of Article 370 of the Constitution of India but through the accession instrument of 26th October, 1947 executed by its sovereign Ruler in favour of India in terms of the law that created modern-day India. The 11-Judge Bench of the Supreme Court held in Madhav Rao (1973) that the accession instrument was an Act of State on the part of the sovereign ruler of a Princely State and bound all concerned. The accession made by a sovereign J&K to a sovereign India, therefore, cannot be re-opened and is binding on all, whether in Srinagar or in New Delhi.

Since the basis of the relationship between J&K and the Indian Union is the accession Instrument of Accession, and not Article 370, (even if it was constitutionally permissible) would not undo the accession or make J&K independent of India.

Inclusion of 370 in the Constitution of India was never intended to create a partial accession or to perpetuate Instrument of Accession based autonomy for Jammu and Kashmir forever. They were intended to permanently unite the State in an indestructible Union. The decision to grant special status to Jammu and Kashmir under Article 370 of the Constitution of India was temporary and transitional, as indicated by the marginal note and as such it cannot last forever. It was not an essential feature of the Constitution and not part of the basic structure of the Constitution of India and hence was not beyond amendment.

Under Article 370 (iii) of Constitution of India, there is a provision for withdrawing this special status, which can be done by the President in consultation with the State Assembly. Since there is no State Assembly now (in J&K) and President’s Rule is in operation, the entire legislative function vests in the President. The power under Article 370 (1) of Constitution of India has been used to amend Article 367 of Constitution of India. In Article 367, under Interpretation, a clause was added in relation to the State of Jammu and Kashmir. As per the amendment, now the Government of Jammu and Kashmir equals the Governor of Jammu and Kashmir; the Sadar-i-Riyasat equals to the Governor, and most important, the Constituent Assembly of Jammu and Kashmir now equals the State Legislature.

In plain words, to scrap Article 370 of Constitution of India, the President needed a recommendation of the Constituent Assembly of the State. This amendment of Article 367 of Constitution of India equated the Constituent Assembly to the State Legislature, and the State Legislature was made equal to the Governor, and the abrogation was completed. With this, the era of State within the State is over and the controversial provision that made Jammu & Kashmir separate from India is buried forever. The psychological barrier that it created between Kashmir and rest of India stands removed. Articles 370 and 35A of the Constitution of India have now become a part of history of Jammu and Kashmir.

Since August 05, 2019, when the Government of India revoked the special status of Jammu & Kashmir, the floodgates of righteous rage from the usual suspects from India and the rest of the world have opened. Hardly surprising. This was the jackboot, the blood-soaked end of democracy, a rape of the Constitution, the trampling of fundamental rights of people of Jammu & Kashmir, and so on. These hyperventilating flag-bearers of freedom (or whatever) should calm down and consider one historical fact. These fundamental rights have now been restored. Women, Dalits, Tribals and minorities of Jammu & Kashmir are now equal citizens of India. And this is shockingly easy to explain.

The revocation of Article 370 of Constitution of India ends a foul majoritarianism in Jammu & Kashmir. If there ever was any unabashed and constitutionally sanctioned majoritarianism anywhere in India, it was in J&K through Article 370. The Constitution of this Muslim-majority State did not have the word “minorities anywhere in it. And it should be our national shame that we allow these hypocrites to freely talk of majoritarianism while staying silent about the 20th century’s swiftest forced exodus of a minority community—Hindu Kashmiri Pandits from Valley in 1990.

Written by: Dinesh Singh Chauhan, Advocate
J&K High Court of Judicature, Jammu.
Email: [email protected] , [email protected]

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