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A write up on Article 370

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AN OVERVIEW ON ABROGATION OF ARTICLE 370

Article 370 of the Constitution has come to an end heralding the emergence of a new Jammu and Kashmir. The Presidential Order abrogating the special status to J&K and its bifurcation into two Union Territories is by and large accepted by the Nation. But the frail voices of dissension from opposition parties, describing the move as undemocratic and a treachery on the people of Kashmir, spell doom for its full grandeur and glory.

The Background of the Instrument of Accession:

Maharaja Hari Singh was the Ruler of Jammu and Kashmir princely state at the time of independence.  Even before the ‘Quit India’ movement in British India, there arose revolt against Maharaja by National Conference under Sheik Abdulla and Muslim Conference in 1938, as ‘Quit Kashmir Movement’.  With the end of Second World War, decolonisation started with Britain declaring its intention to accord complete Independence to India. The Cabinet Mission visited India on March 23, 1946, and issued Memorandum containing guidelines for the native States to follow regarding the future course of action on independence. Provincial Governments under British sovereignty and princely States ruled by dynasties, and under the suzerainty of Britain were dealt with according to the memorandum issued. The Princely States could opt to join as a federal unit under the proposed Dominion or could remain as Sovereign State. The Memorandum brought to an end the paramountcy of crown over princely States.

Following this, the Indian Independence Act 1947 was passed by the British Parliament dividing India into Dominion of India and Dominion of Pakistan. By Section 9 of the Independence Act, the Princely States were given the option to accede to either of the dominions as per Section 6 of the Government of India Act 1935. Full freedom was given to Principalities in joining with emerging Dominions or to remain as independent sovereign States. The Indian Independence Act contemplated a referendum to ascertain the wishes of people only in respect of North-West Frontier Province and Sylhet in Assam (Section 2(2)(e) and3(2) of the Act). The dominion of Pakistan was carved out from British India with West Punjab, Sind, Baluchistan, East Bengal and North-West Frontier Province with remaining British India to become the Dominion of India. But sourcing power from Section 9 of Independence Act read with Section 6 of Government of India Act, as many as 500 and more princely States executed Instrument of Accession with India or Pakistan, as the case may be before 15th August 1947. The princely state of Junagadh, Kashmir and Hyderabad were diplomatically dithering to take a decision on accession.

Maharaja Hari Singh of Kashmir wanted to remain as a sovereign state, opting not to sign the Instrument of Accession.  But when the revolt against Maharaja by Pushtun Tribesmen with the aid of the Pakistan army was about to dethrone the King, the assistance of India was sought by the Maharaja. With the signing of Instrument of Accession on October 27, 1947, by the Maharaja, which in, form and substance were like 140 other instruments of Accession signed by other States, the princely State of Kashmir became an integral part of India.

It did not contain any clause for a referendum to be conducted for its full integration with Dominion of India. Archives on Constitutional literature say that Dr Ambedkar was averse to the incorporation of Article 370 into the Constitution as according to him, it was against the terms of Instrument of Accession and the intent of full integration of Kashmir with India. The task of drafting Article 370 was undertaken by Gopalaswamy Ayyangar, a Minister in Nehru’s cabinet without portfolio.

When Pakistan sponsored insurgency continued, India moved a motion in the U.N. Security Council in 1948 under Article 35 of U.N. Charter terming Pakistan’s intervention as a disturbance to international peace as also the tranquillity in Kashmir valley.  This paved the way for `entanglement’ of India with UN diktat. It appears from records that the UN by Resolution No. 97 asked the Pakistan Military forces to demilitarise the area.

As regards India it gave a direction to conduct a plebiscite in Kashmir to ascertain the wishes of Kashmir people regarding accession to India.  [C.N.Agrawal Memorial Lecture by Dr A.S. Anand, former Chief Justice of India reported in (1996) 4 SCC Journal 11) Later, in 1951 when National Assembly was Constituted in J&K, its representatives were elected through democratic process where the total 75 seats went in favour of the National Conference and its leader Sheik Mohamed Abdulla was elected as the Prime Minister of Jammu and Kashmir. The Constituent Assembly, by its resolution dated February 15, 1954, ratified the State’s accession to India in unequivocal terms.  The National Assembly, while adopting its Constitution on November 7, 1956, declared in Article 3 that Jammu and Kashmir are and shall be an integral part of Union of India. Further Article 147 of J&K Constitution unequivocally says that Article 3 and 5 shall not be amended in any manner in future.  It is also further laid down in Article 147 of J&K Constitution that the provisions relating to the relations with Union of India are also not liable to any change by way of amendment.  Though technically no plebiscite as instructed by UN was conducted, still the declaration by the elected representatives of the J&K Constituent Assembly gives a democratic imprimatur to the accession of J&K to India.  The Constitution of J&K was adopted on 7/11/1956.

Present Constitutional therapy done

Running with the tumultuous years in Kashmir after independence, the framing of the Constitution of Union of India was taking place. The then Industries Minister in the Nehru Cabinet, Dr Shyamaprasad Mukharji, resigned from the Cabinet on account of the decision to give special status to Jammu and Kashmir. His death in custody by the J&K Government under Sheik Abdulla is still a mystery to be unravelled. When Article 306A (now 370), was introduced by Gopalaswami Ayyangar in the Constituent Assembly it is curious that the opposition came from a Muslim member, Maulana Hasrat Mohani (United Provinces: Muslim).  He termed the granting of special status as discriminatory.  In Hasrat Mohani’s own words in the Constituent Assembly (debates held on 17th October 1949):

Honourable Shri. N. Gopalaswami Ayyangar: 

……..Maulana Hasrat Mohani: Sir, I want to make it clear at the very outset that I am neither opposed to all these concessions being granted to my Friend Sheikh Abdullah, not am I opposed to the acceptance of the Maharaja as the ruler of Kashmir.  And if the Maharaja of Kashmir gets further powers and concessions I will be very glad.  But what I object to is this.  Why do you make this discrimination about this Ruler? Mr Ayyangar has himself admitted here that the administration of Kashmir State is not on a very good basis……

Now the time was overdue for the Government of India to bring to an end Article 370 for ensuring constitutional parity of States.  Article 370(3) was invoked by the President for causing cessation of the Article itself.  By invoking Section 92 of the J&K Constitution, the power of the Legislature of the State was assumed by the Governor.  By the amendment of the proviso to Article 370(3) with the effect of substituting ‘Constituent Assembly’ with ‘legislature of the State’, the Constitutional task was deftly done by the Government of India within the legal framework. Article 370 was in fact the placenta in the birth of Jammu & Kashmir. The gestation period of Jammu & Kashmir is over and the birth of J&K has taken place as twins. An excellent Constitutional gambit indeed it was.

Self Determination:

The Presidential order and Bills moved by the Government are termed as undemocratic by Opposition mainly on the premise that a recommendatory resolution of Legislature of the State is lacking as mandated by the proviso to Article 370(3).  The position is conceded by all concerned regarding the power of the President to issue a notification to cause cessation of operation of Article 370 of the Constitution.  But argument based on lack of concurrence of the elected representative is one essentially boiling down to the issue of self-determination. The Independence Act made it peremptory the holding of the referendum only in the North-West Frontier Province and Sylhet in Assam.  It provided that these parts of British India could be made part of Pakistan subject to ratification by the people of the province through a referendum.  The princely States under the suzerainty of the British Empire were returned their sovereign power by the British Crown to decide the issue of accession in accordance with the provisions in the Independence Act.  The Independence Act contemplated a carte blanche to be given to only the Rulers of Princely states, and no right of self-determination of its people was conceded to, as far as accession to dominions is concerned.  The J&K Constituent Assembly was formed on October 31, 1951.

On February 15, 1954, the Assembly ratified State’s accession to India. The J&K Constitution came into being on January 26, 1957. The Constituent Assembly of J&K was dissolved on November 17, 1956.  Though initially Sheik Abdulla was elected Prime Minister, he was dismissed by Head of State (Sadr-e-Riyasat), Karan Singh, son of Maharaja Hari Singh on August 1953 and was put in prison. The declaration in the J&K Constitution that J&K is an integral part of India makes the self-determination of people of J&K complete in itself. The abrogation of the temporary provision, Article 370, makes the integration a constitutional reality whereby a uniform Constitution is made applicable to the whole of India.

Territorial Integrity, Sovereignty and Self Determination

The concept of Nation-State is the product of the Treaty of Westphalia 1648.  When cultural boundaries match up with political ones, the emergence of Nation-State is the natural fall out. The creation of uniform national culture by State intervention will naturally augment the formation of Nation-State.

Uniform language, ethos, State emblems etc. are contributing factors for the formation of Nation-State. The adoption of national policies on education, cultural affairs, civil relations among citizens by a responsible Government followed by its successful implementation eventually leads to Nation-State formation. Territorial integrity and territorial sovereignty, not for Nation-State alone but for all States, are a necessary concomitant of Statehood. UN Charter enumerates territorial sovereignty and political independence as a precondition for recognition as State. It is surprising that India, with its crippled sovereignty over an integral part of it, was nevertheless recognised as a Member State by UN so far. India’s territorial integrity and full sovereignty over its component States were an absolute necessity for its assertion as a State entity with full statehood in its conceptualisation. Now it is turning out to be axiomatic in International Law that when the clash of logic is based on territorial integrity and sovereignty on the one hand and right of self-determination on the other end, the former takes precedence over the latter.

Indian Episodes of the annexation of territory

The annexation of Hyderabad to India is a classic example of the assertion of territorial integrity and territorial sovereignty. Though Nizam of Hyderabad wanted to join with Pakistan, through a military intervention, called `Operation Polo’, the princely state of Hyderabad was made part of Union of India in September 1948.  The Nawab of Junagadh desired to accede to Pakistan but Junagadh was annexed to Indian territory by military action.  The referendum done in Junagadh under the supervision of Indian Military troop was only a farce, designed to give it the flavour of self-determination. The annexation of Sikkim in 1975, which was a Protectorate of Union of India till then, is also another example of the assertion of territorial integrity. A referendum done after the conquest in Sikkim was, in fact, a smokescreen to give legitimacy to the conquest.  The liberation of Goa and Pondicherry were done by way of similar military conquest.

The conquest for the preservation of rights of ethnic groups

On the international arena, the Russian annexation of Crimea in 2014 is another instance, where even a conquest is justified in the name of territorial integrity and preservation of rights of ethnic groups.  Israel’s occupation of Galon Heights is now accepted by the US as an assertion of territorial sovereignty and integrity.  Justice Anand, in his lecture (1996) 4 SCC Journal 11) draws a parallel from the US annexation of Texas in 1845 from Mexico, when he talks about the accession of Kashmir to India.  The common feature of all these annexations is its justification for protection of rights of ethnic groups. The Ethno-linguistic issues of Russians in Crimea, the sufferings of the US settlers in Texas were the propelling factors for the intervention of respective countries.  The large scale exodus of Kashmiri Pandits, following the oppression by the majority religious groups in the late 1990s is a legitimate reason for the Government of India for a complete military suzerainty over Kashmir. The resettlement of the Kashmiri Pandits in their homeland is a constitutional compulsion for India for its intervention.

For a State to survive and progress, the territories in its corridor and contour are to be held in contiguity with complete sovereignty, which essentially is territorial integrity in political science.  For India to be a nation with full sovereignty over its territory, the complete integration of Jammu & Kashmir is indispensable. Fortunately, we have done it through constitutional means, though with a few fulminations over procedural niceties.  Given the international scenario on Crimea and Galon Heights, even military deployment to secure peace and complete integration cannot be objected to. Territorial integration to secure peace is being accepted as a norm in international law as a means to curb terrorism thriving on the platform of separatism.

Surgery by Constitutional means is now over. Political chemotherapy has to commence yet. Let us be hopeful for our Paradise on Earth to re-emerge with its full splendour and gaiety.

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