Notwithstanding the above events, J&K’s accession to India was full and final. The IOA signed was similar to what was signed by other princely states which provided matters with respect to which the Dominion Legislature may make Laws for the State i.e. defence, external affairs, communications and ancillary. 

Continued from 'All you wanted to know about the Accession of Jammu and Kashmir to India' 

Birth of Article 370

Q. Was J&K the only State to draft its own Constitution?

A. No. ‘It was accepted that the States and the Unions of the States would institute their own Constituent Assemblies to draw up the constitutions for their Governments. The State Ministry constituted a special Committee in November, 1948, shortly after the draft Constitution of India was introduced in the Constituent Assembly to lay down broad guidelines for the Constituent Assemblies of the States and the Unions of the States in order that the Constitutions of the States were based upon uniform principles and the principles did not conflict with the constitutional organization of the Republic. The Committee drafted a model constitution, more or less based upon the provisions of the Constitution of India envisaged for the provinces or what the draft constitution named the part A States, for the State Constituent Assemblies to adopt. 

However, the process of instituting the Constituent Assemblies in the States was slow and except for the Saurashtra States Union, Travancore-Cochin and Mysore, Constituent Assemblies of the States were not convened. The Interim Governments instituted in the States, faced several problems of integration and liberalization and the convocation of the Constituent Assemblies was bound to take a long time.

To overcome these difficulties a conference of the Premiers of the States and the Unions of the States was held in Delhi in 1949. The Conference of the Premiers decided not to wait for the institution of the Constituent Assemblies in the States and instead proposed to entrust the task of framing the state constitutions to the Constituent Assembly of India who would draw up the State Constitutions in consultations with the States and with the consent of their governments.

The draft provisions were then sent to Saurashtra, Travancore- Cochin and Mysore, where they

were considered by the respective Constituent Assemblies of these States and accepted with minor modifications. The draft constitution was also sent to the other States and the Unions of the States for their consideration. All the State Governments accepted the draft provisions, except the Jammu and Kashmir State.’ 6 pg 11  

Key points: All princely States including J&K were asked to draft their own Constitution. Draft provisions were considered by Constituent Assemblies of some states. Eventually all State Governments accepted the draft constitution barring J&K.  

Q. Was Article 370 promised at the time of signing IOA?

A. No it wasn’t. As stated earlier signing of the IOA was unconditional. Further the draft Constitution of India presented to the Constituent Assembly for debate in February 1948 did not have Article 370. Therefore, Article 370 being promised in 1947 is a fallacy.

When Nehru sent Abdullah to explain to him and draft an appropirate Article, Dr Ambedkar said, "Mr Abdullah, you want India should defend Kashmir, India should develop Kashmir and Kashmiris should have equal rights as citizens of India, but you don't want India and any citizen of India to have any rights in Kashmir. I am the Law Minister of India. I cannot betray my country". (Interview of Prof Balraj Madhok Organizer issue 14/11/2004). It was then that Nehru asked Ayyangar to draft Article 306-A. 

The final Article 370 was Article 306-A in the draft Constitution of India which was placed before the Constitutent Assembly on 17th October, 1949. According to Constituent Assembly Debates (India) Vol X No 10, Gopalaswami Ayyangar, minister without portfolio in Nehru's government (and former PM of J&K) made the following arguments in support for article 306-A:

'In the case of other Indian States, the IOA will be a thing of the past in the new Constitution; the States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of accession for becoming units of the Republic and, in the case of practically all States other than J&K, their constitutions have also have been embodied in the Constitution for the whole of India. It would not be so in the case of Kashmir as the State is not yet ripe for this kind of integration due to the special conditions prevailing in Kashmir. 

Q. If Article 370 is repealed, would J&K cease to be part of India?

A. No. This was in the news after CM Omar Abdullah’s comment to that effect. The basis for J&K accession to India was the IOA and not Article 370. Justice A.S. Anand wrote, ‘This IOA was unconditional, voluntary and absolute. It was not subject to any exceptions. As such, it bound the State of J&K and India together legally and constitutionally. And so, regarding the legality of the accession in the judicial sense of the word there is no doubt’.1 pg 75. 

Q. Could Nehru have forced the State to merge with the Constitution of India like other States?

A. Yes, Nehru could have treated the princely state of J&K in the same way as other princely states. But it was Nehru who pushed for the installation of a government headed by Sheikh Abdullah as PM. Nehru’s friendship with Abdullah, their dislike for the Maharaja and India being under pressure in the U.N. eventually forced the Maharaja to abdicate the throne in favor of his 18 year old son in June 1949. The situation changed thereafter. 

Q. Could Nehru’s Government have cleared J&K of Pakistan occupation? 

A. Lt Gen N S Malik wrote, ‘Indian Army’s advance into present POK in 1948 was said to have been halted on the advice of Sheikh Abdullah to Nehru that the areas beyond were not Kashmiris.’10 

Also, having taken the J&K issue to the U.N. any attempt to force the State into a merger with the Constitution of India would have raised hackles abroad – created a situation which the Indian government under Nehru was not temperamentally attuned to. Defence analyst K. Subrahmanyam wrote, “There is also the view that Nehru was anti-militarist in his orientation and as, an advocate of peace and non-alignment, neglected the role of military power in international relations” 11 pg 41

Q. Is Article 370 a temporary provision?

A. A reading of the Constituent Assembly Debates referred to above show that Gopalaswami Ayyangar had said that article is temporary in nature. He justified its existence on account of special conditions prevalent then. Further Article 370 fell under the Constitution of India’s Part XXI called ‘Temporary and Transitional Provisions’ at the time of enactment of the Constitution.

Under a Constitutional Amendment of 1963, the world ‘Special’ was added to the previous title. Subsequent amendments were enacted as Special Provisions of one kind or another for various States under Article 371. However, Article 370 has continued as Temporary provision.

On 27/11/1963 Pandit Nehru confirmed on the floor of Parliament that he had earlier made the statement: ‘Article 370 of the Constitution would be eroded progressively’. 3 pg 24

Labeled as a temporary provision w.r.t J&K, Article 370 has now become permanent.

Q. What are the provisions of Article 370 in brief?

A. The article states that the provisions of Article 238 (see next para) shall not apply to J&K. Further the essence of clauses (1)(b)(i) and (1)(b)(ii) is that laws of Parliament on matters in the Union List and the Concurrent List can be made for J&K only after ‘consultation’ with the State government (ie subjects mentioned in the IOA namely Defence, External Affairs and Communication) or after ‘concurrence of the State government depending on the subject matter of the law. (ie all other laws). The words ‘Consult’ can be construed differently. In reality over 260 Central laws, were given effect to in J&K after concurrence of the State Government. 

Article 238 was meant to govern the constitutional relationship between the Union and princely States. All princely States that had acceded to the Indian Dominion were labeled as Part ‘B’ states in the Constitution of India. J&K too was a part B state. However, all States had accepted the Constitution of India while J&K wanted to frame its own Constitution. Further, the article was deleted by the 7th Amendment Act, 1956, when the scheme of reorganization of all States was done on the basis of language. This meant changing the boundaries of existing states and abolition of the classification of the Part B states.

Q. Is it correct to justify Article 370 by referring to exclusive provisions of Article 371? 

A. It is true that the Constitution makes Special provisions for Maharashtra, Gujarat, Nagaland, Assam, Manipur, Sikkim, Mizoram, Arunachal Pradesh and Goa. But the special provisions of these states are nowhere near the breadth and scope of the temporary provisions of J&K.

For example Article 371A deals with Nagaland. It stipulates that no act of Parliament on (i) religion or special practices of Nagas, ii) Naga customary law and procedure, including administration of justice under it and iii) ownership and transfer of land and its resources would apply to the State unless the State Legislative Assembly do decides and so on. Article 371H for Arunachal Pradesh lays down that the strength of the assembly shall consist of not less than 30 members and confers special responsibility and discretion on the Governor in respect of law and order. Art 371I lays down that the legislative assembly of Goa shall have a minimum of 30 members. Compare the scope of these special provisions with the temporary provision of J&K.

Note that India’s opponents want to perpetuate special conditions in J&K so as to ensure continuance of Article 370 and prevent its integration with India. Just because 54% of J&K is not in India’s possession, can that be a valid reason for the Article to continue 64 years later! 

The above is chapter one from an E book first published by www.firstpost.com

To read E book and get details of References