One of the most controversial issues and perhaps the one with no possible solution at sight is back to rock the Indian polity. The Jammu & Kashmir High Court has recently observed that the Article 370 which grants special status to the State is a permanent feature of the Constitution and is beyond amendment, repeal or abrogation. It is pertinent to note that another plea challenging the validity of the provision is pending before the High Court of Delhi.
Amid arrests of political leader like Yasin Malik, last year, the then Chief Minister of the State, Omar Abdullah tweeted ‘Mark my words and save this tweet – long after Modi’s Government is a distant memory, either Jammu & Kashmir will not be a part of India or Article 370 will still exist’, on May 27, 2014. This was an enraged reaction to Central Minister for PMO, Jitendra Singh’s statement that the Modi’s Cabinet was ready to debate on Article 370 of the Constitution of India and that it would take efforts to ‘convince the unconvinced’. What was more interesting is the fact that the Minister of PMO himself is an elected representative from the State.[1] It must, at this juncture, be noted that the BJP’s election manifesto had given sufficient importance to the issue.
It is my firm conviction that the issue must be discussed in the light of its legislative and political history. When India attained independence in 1947 there were nearly 562 princely states in the Indian Territory which were not under the control of British India.[2] According to the scheme of independence under the Indian independence Act, 1947, the princely states that existed under British rule were given a choice of acceding either to India or Pakistan, or remain independent.[3] While most of the princely states acceded to India, very few States adjacent to the Dominion of India, including J&K, Junagadh, Hyderabad were confused. Quite evidently, Junagadh and Hyderabad (by operation polo) were annexed to India by the show of might.[4]
It is interesting to note that Maharaja Hari Singh of Kashmir had signed Stand Still agreement with Pakistan on 12th August, 1947 seeking their continuous trade relationship with the Territory until he takes his decision on the status of the territory under his kingdom. The polity was undisturbed until during the early days of October 1947 when tribesmen from Pakistan started occupying western parts of the Territory. It was on 26th October, the Maharaja wrote a letter to the Governor General Mountbatten[5] in which he says, ‘With the conditions obtaining at present in my State and the great 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’, indicating that it is, but under, undue influence that he had signed the Instrument, acceding his territory to India. This is followed by a number of incidents which include the Indo – Pakistan war, India knocking the doors of UN Security Council, passing of UNSC resolutions seeking plebiscite,[6] etc., before the Constitution of India, containing Article 370, came into force.
Truncating the history with this, it is wiser to now jump into the contentious provision ‘Article 370’ of the Constitution of India.The provision which grants special status to the State provides, among other things, that: ‘The power of Parliament to make laws for the State of Jammu and Kashmir is limited to –
a) Those matters in the Union List and the Concurrent List, which in consultation of the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession;
b) such other matters in the Union and Concurrent Lists only with the concurrence of the Government of the State, the President by order specify. This means that on such matters laws can be made only with the consent of the State of Jammu and Kashmir.’
Exercising his powers under Article 370 of the Constitution, the President, from time to time, has issued orders extending several provisions of the Constitution to the State of Jammu & Kashmir. By the Constitution (Application to Jammu & Kashmir) Order 1954 the Legislative authority of the Union was extended to the State and it, inter alia, provides for the following:
Firstly, The Constitution of the State of Jammu & Kashmir shall continue to be operative; Secondly, the Jurisdiction of the Supreme Court extends to the State except for Articles 135 and 139; Thirdly, the provision regarding emergencies under Article 352 can be applied to the State only with the Concurrence (consent) of the State; Fourthly, The provisions for imposing the President’s rule under Art. 356 apply to the State. But Art. 360, relating to the financial emergency does not apply; Fifthly, the Directive Principles of State do not apply to the State of J & K. Sixthly, Under Art. 368, an amendment to the Constitution shall not apply to the State until the President by order applies it to the State.
Since the provision in question is based upon the Instrument of Accession, by virtue of which, J&K acceded to India, it is pertinent to peruse the relevant provision of the Instrument. The Instrument says,[7] ‘I hereby declare that I accede to the Dominion of India … but subject always to the terms thereof…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.’ The matters in respect of which the Dominion Legislature was authorized to make law for the State are: Defence (which includes armed forces, arms, ammunitions, explosives etc.,), External Affairs (which includes giving effect to Treaties and agreements, naturalization etc.,) and Communication (which includes posts, railways, ports etc.,).
It must be noted that India is a federal republic with more ‘unitary features’. Schedule VII to the Constitution has three lists. The Union list consists of 97 subjects (including residuary powers) over which the Parliament has exclusive powers to deal with. While the State list consists of 66 subjects, the Concurrent list consists of 47 subjects. Moreover, according to the scheme of the Constitution, even in matters within the concurrent list, State laws which are inconsistent with central laws are invalid. And at times of emergency, the Indian federation leans towards the centre. However, this is not the case with the State of Jammu & Kashmir as seen in the previous paragraphs. This is exactly why there is a debate on the abrogation of Article 370 of the Constitution.
After an analysis of the legal principles, legal documents and above all, the Constitution of India, it is my firm conviction that there is nothing wrong in retaining Article 370 of the Constitution on the following grounds:
1. Article 370 being an original provision of the Constitution (as against amended provisions), it cannot be inconsistent with the other provisions of the Constitution. In law, there is always a presumption that provisions of the same statute cannot be repugnant to each other.[8] The provisions must be read together harmoniously. The purpose for which the Article was incorporated in the Constitution is quite clear. Therefore, special powers under Article 370 apply only to the State on the basis of its political history and the general scheme of federation under the Constitution applies to other States. There is, therefore no repugnancy within the Constitution.
2. The natural corollary to the preceding point is that Article 370 is an exception to the general rule relating to the Indian federal polity. No rule is without exceptions. For instance, though only ‘States’ are entitled to have legislature, Union Territory of Pondicherry has a legislature.[9] Similarly, many other States have been armed with Special powers under Articles 370A - I of the Constitution based on their political history and necessity. Therefore, there is no wrong in having an exception in Article 370 to the Indian Federal Polity under the Constitution of India.
3. Kashmiris are entitled to their right to Self Determination which is now recognized as a jus cogens principle in International Human Rights Law which can never be challenged. Article 1 of the International Covenant on Civil and Political Rights to which India is a party provides that ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ Right to self – determination should be identified with internal self – determination. The Kashmiris decided to merge with India in such terms as reflected in Article 370. Article 370 should, therefore, be identified with the inalienable Right to Self Determination of Kashmir and its people.
4. The Scheme of Federation in India is based on the Canadian constitution as against the American Federation.[10] While Canada is a federation formed by Centrifugal forces (division of States for political convenience on the lines of language and other considerations), America is a federation formed by Centripetal forces (independent sovereign States coming together to meet their common needs and to defend themselves in common).[11] India is a ‘Union of States’ politically divided on the basis of language and ethnicity for convenience of administration, the State of Kashmir is a territory which merged with India considering its political needs and it is not a State having its boundary drawn on the lines of language and other considerations. Therefore, though Indian federal polity is designed on the lines of Canadian federation (more powers to the Federal Government as against the Provincial Government), Article 370 of the Indian Constitution is pari materia to the American Federal constitution.[12]
In these circumstances, it is wrong to say that India has succumbed to external pressure in giving special status to Kashmir. The truth is far behind what it is thought to be. As a matter of fact, India has ignored UNSC resolutions requiring it to conduct plebiscite in Jammu & Kashmir. In providing special status to J&K under Article 370 of the Constitution, India has not succumbed to any pressure, but has only observed its promises and preserved its integrity and dignity it has always possessed.
[1] Dr. Jitendra Singh is an elected representative from Udhampur Lok Sabha Constituency, State of Jammu & Kashmir.
[2] The Princely States of India: A Chronological Checklist of Their Rulers, by David P. Henige. Published by Borgo Press, 1997.
[3] Implied from Section 2 of the Act entitled ‘Territories of the new Dominion’ andSection 7 of the Act entitled ‘Consequence of the new Dominion’.
[4] ‘Encyclopaedia Americana’, Volume 14, P. 633, Ed.,1997.
[5] The text of which is available with the National Archives of India.
[6] Security Council Resolution 48 of 1948 dated April 21, 1948.
[7] Copy of the Original text obtained from the National Archives of India vide F. No. 1(7) – 38/2014 – R II – RTI dt 30/08/2014 under the RTI Act, 2005.
[8] ‘In Civile Est Nisi Tota Lege Perspecta Una Aliqua Particula Ejus Proposita Judicare Vel Respondere’, which means ‘it is an elementary rule that construction is to be made of all parts (of a statute) together, and not of one part only by itself.’
[9] As enabled by Article 239A of the Constitution which is entitled ‘Creation of Local Legislatures or Council of Ministers or both for certain Union Territories’.
[10] The Canadian Constitution enumerates a lists of subjects over which the provinces have exclusive legislative control. The rest of the subjects are left with the Centre. The Indian Constitution, under Article 248 entitled ‘Residuary Powers of the legislation’ provides residuary power to the Parliament.
[11] Principles of Political Science’, Dr. Anup Chand Kapoor, S.Chand Publishing, New Delhi, Ed.,2011.)
[12] In 1787, the delegates of Philadelphia Convention devised a new scheme of Federation by which the modern federation of the United States of America came into existence. The American Constitution provides more powers to the States and leaves nationally important subjects which include external affairs and Defence with the Federal Government. Similarly, the State of Jammu and Kashmir which became an integral part of the Union of India by virtue of the Instrument of Accession has more powers and leaves nationally important subjects to the Central Government by virtue of the Instrument and Article 370 of the Constitution.