• FAQ includes key events in Jammu and Kashmir during 1947-1950. Was Art 370 a temporary provision? Expert views on the legal aspects being made in the Supreme Court so far.  

The legality of the 2019 move to modify Article 370 (using existing Constitutional provisions) and scrap 35A is being heard in the Supreme Court (SC). Thanks to SC its proceedings are recorded. Hearing respected Judges is a great learning.

On hearing a few videos, I felt the need to share a perspective because the state of Jammu and Kashmir (J&K) has a unique history esp. post 1947 and because the manner in which different people made reference to J&K affairs, invariably for political gain. Matters need to be viewed in an integrated, simple and unbiased way.

Matter before constitutional bench of SC - The Legality of use of Article 370(1) for issuing of Presidential order under C.O 272 of 05-08-2019 to supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time and issue of Presidential Notification under C.O.273 of 06-08-2019 making use of Art 370(3) to modify Art-370 of Constitution of India is under judicial scrutiny.

In 2014, I wrote an E book on J&K. For this FAQ have referred to, amongst others, former CJI A.S. Anand’s book based on his dissertation on the Jammu & Kashmir State Constitution that had, in April 1963, earned him a Ph.D. from the Faculty of Laws, London University. That thesis was, with slight modifications and alterations, later converted into the full fledged book titled ‘The Constitution of Jammu & Kashmir- Its Development & Comments.’ I referred to the 8th edition that was published in 2016 by LexisNexis-Universal Law Publishing. eSamskriti has received permission from LexisNexis to use quotes from Justice Anand's book. 

Questions 1 to 14 covers related matters and is Art 370 temporary. Questions 15-17 cover purely legal aspects.

1. Brief Chronology of key events in J&K

1. A Legislative Assembly (Praja Sabha) existed on 15/8/1947.  

2. 5,000 Pathan tribesmen invade J&K starting 21/10/1947.

3. Instrument of Accession (hereafter referred to as IOA) signed on 26/10/1947.

4. IOA unconditionally accepted by Mountbatten on 27/10/1947.

5. Nehru chose to go to the U.N. on 1/1/1948 on the aggression.

6. Resolutions adopted by UN Commission for India and Pakistan on 13/8/1948 and 5/1/1949 provide for a plebiscite after withdrawal of troops from Pakistan.

7. Regent of J&K Yuvraj Karan Singh issued a proclamation on 25/11/1949 that legally declared total oneness with the Constitution of India.

8. Article 370 became a part of Indian Constitution in 1950.

9. Elections to Constituent Assembly held in 1951-Sheikh Abdullah became PM of J&K.

10. Sheikh Abdullah arrested in 1953.

11. Kashmir Constituent Assembly confirmed legality of State’s accession to India in 1954.

12. State Constitution came into force on 26/1/1957.

13. The Simla Agreement, signed between India and Pakistan in July 1972, decided to settle all differences by peaceful means through bilateral talks, the ceasefire line in J&K would become the line of control.

14. Terrorism from 1988 onwards claimed app. 47,000 lives to date of writing. 

15. BJP and PDP form a government with Mufti Mohd Sayeed as Chief Minister (CM), sworn in March 2015.

16. Governor rule due to demise of CM Sayeed.

17. PDP Government sworn in with Mehbooba Mufti as CM.

18. BJP withdraws support from Mehbooba lead govt.

19. Governor Rule.

20. J&K Assembly dissolved.

21. Governor / President Rule.

22. Article 370 and 35A scrapped in August 2019.  

Temples of Kashmir. By Namrata W.

2. In 1947, what was the trigger in J&K?

At a meeting held on 25/7/1947 Mountbatten advised the princes that they should accede to one of the two dominions, keeping in mind the ‘geographical contiguity of their States’, while surrendering power over three specified subjects, without any financial liability. 

3. Did Jammu and Kashmir have a National Assembly prior to 1947? (prompted by arguments in SC)

Yes.

The first legislature called Praja Sabha was established in 1934 by the ruler of J&K. “In 1948, Hari Singh made a decree to convene a national assembly and work out a new constitution of the state.” Source

The first Prime Minister of J&K, appointed by Dogra ruler Maharaja Hari Singh, was Sir Albion Banerjee (1927-29). The state had nine more Prime Ministers before Independence. The first after Independence was Mehr Chand Mahajan (October 1947-March 1948). He was replaced with Sheikh Mohammad Abdullah, who until then had been Head of the Administration. Source Indian Express

“In 1949 Hari Singh transferred power to his son Yuvraj Karan Singh Bahadur, who issued an order for the election of a constituent assembly in the state.” Elections for this assembly were held in 1951. 

4. Background to Article 370

Subsequent to Accession of J&K to India, Lord Mountbatten wrote a personal letter to the Maharaja ‘it is my Government’s wish that, as soon as law and order is restored in Kashmir and its soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people.’ 

Critics argue that this stipulation made the Accession conditional. Former Chief Justice of India (CJI) Justice A.S. Anand, “believes that this statement does not and cannot affect the legality of the accession which was sealed by India’s official acceptance. This statement is not a part of the IOA. Mr M.C. Mahajan, the former Chief Justice of India observed thus: The Indian Independence Act did not envisage conditional accession. The Dominion’s Governor-General had the power to accept the accession or reject the offer but had no power to keep the question open or attach conditions to it.” 1 pg 57

5. India’s war with Pakistan

On 7/11/1947 Indian troops won the battle of Shaltang, thereby removing all threats to Srinagar. Three days later, Baramulla was recaptured.

Read  About Battle of Shalteng by Col Bhatnagar

Indian Army soon realized that the only way to completely remove the raiders was by attacking their bases and sources of supply in Pakistan. On 22/12/1947, India warned Pakistan that unless Pakistan denied her assistance and bases to the invaders, India would be compelled to take action.

6. India goes to U.N.

At that critical stage, Lord Mountbatten urged PM, Jawaharlal Nehru, about “the overwhelming need for caution and restraint”. He stressed, “How embroilment in war with Pakistan would undermine the whole of Nehru’s independent foreign policy and progressive social aspirations.” 1 Pg. 60 On Mountbatten’s advice, Nehru decided to lodge a complaint with the United Nations Security Council. That was done on 1/1/1948. 

On 5/1/1949 the U.N. Commission for India and Pakistan proposed a resolution whereby the future of J&K would be determined by a democratic method of a plebiscite conducted by India under the UN’s auspices but after Pakistan withdrew its troops from the State and disbanding of Azad Kashmir forces. India declared a ceasefire on 1/1/1949, occupied areas were not recovered. The Simla Agreement (1972) overruled the U.N. Resolution since both countries decided to settle all differences by peaceful means through bilateral talks.

Read  All you wanted to know about Jammu and Kashmir Accession to India

7. Did all States have a Legislature? (prompted by arguments in SC)

No.

J&K had a Praja Sabha established in 1934. The Jammu and Kashmir Constitution Act was promulgated in 1939.

The King was the source of all authority. Was he the only king doing so then?

“In Hyderabad, a Legislative Assembly was set up in 1946 but the Muslim members, had by official orders, a majority of 10 over Hindus in a House of 132, though the population was 85% Hindu. The Nizam was the source of all authority.

Mysore had a Legislative Council with an elected majority from 1907. It had legislative and financial powers but no control over the executive government.

In Jaipur, the first Legislative Assembly was established in 1944.” 1 Pg. 42

One must realize that the ruler of J&K made an attempt to associate his people with the administration.

8. Were all States asked to draw up a Constitution?

Yes.

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. 1 Pg. 94

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.’ 3 Pg. 11 Note that J&K state constitution became effective from 26/1/1957.

9. Can the Accession of J&K to India be reversed?

No.

Clause 5 of the Instrument of Accession (IOA) reads, “The terms of this instrument of accession shall not be varied by any amendment of the Act or of the Indian Amendment Act, 1947 unless such amendment is accepted by me by an Instrument supplementary to this Instrument.” 1 Pg. 318

Further Section 3 of the State Constitution that came into effect from 26/1/1957 says, ‘The State of J&K is and shall be an integral part of the Union of India’. 1 Pg. 171 Section 147 of State Constitution says that this Section is not amenable.

Kashmiri shop in Tanjore, Tamil Nadu bang opposite Maratha Palace entrance.

10. Was Article 370 promised at the time of signing IOA? (prompted by  arguments in SC)

No. Even if it were it would be unbinding since signing of the IOA was unconditional.

When Nehru sent Abdullah to explain to him the position and draft an appropriate Article, excerpts from what Dr Ambedkar said, ‘I am the Law Minister of India. I cannot betray the interest of my country.’ (Interview of Prof Balraj Madhok Organiser issue 14/11/2004) 2 Pg.18 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 Constituent 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. 2 Pg. 15, also 1 Pg. 95

In the first place there has been a war going on within the limits of J&K State- part of the State is still in the hands of the enemies, and in the second place, the Government of India, have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity will be given to the people of the State for decide for themselves the nature of their Constitution.” 2 Pg. 15 Thus, Article 238 was not to apply to J&K.

Justice Anand quotes Sardar Patel, once the Constitution came into force on 26/1/1950. “In view of the special problem with which the J&K government is faced, we have made special provisions for the continuance of the State with the Union on the existing basis”, declared Sardar Patel in the Constituent Assembly. 1 Pg. 98 

Note that Article 238, that was meant for Part B states like Travancore, Patiala, “was not named anywhere as temporary but was removed in 1956 using the Constituent power inherited in Art-368 (procedure for amendment of the Constitution). It was redundant post The Reorganization of States Act 1956.

Article 370 was thus formally added to the Constitution of India whilst Article 35A was applied to J&K bypassing parliament. 1 Pg. 106

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

No. Article one was not applied to J&K through Art-370. This Article is applied to J&K along with Art-1.

Justice A 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 56

12. Is Article 370 a temporary provision? (prompted by arguments in SC)

Senior Journalist Daya Sagarji says, "Yes it was as regards its first text,  and in a way it was  mentioned there in that it had not to stay in its ‘First / Original form’  and even a procedure to modify / amend this Article was mentioned there itself where under even without a Constitution amendment Act it could be amended and that is what has happened on 06-08-2019."

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.

The integration of other States with the Union of India happened smoothly (barring Hyderabad and Junagarh) so there was no need for any temporary provision. Hence, the Executive included Article 370 as temporary.

Note that laws are made by the Executive based on the external environment then. If that is to be reviewed 75 years later, we must take into account the environment then whilst deciding on legal issues.

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. Part XXI deals with numerous states and not only J&K for e.g. Manipur, Goa, Gujarat.

And on 27th November 1963, Pandit Nehru confirmed on the floor of the Parliament that he had earlier made the statement: “Samvidhan ki dhara 370 ghiste ghiste ghis jaayegi.” (“Article 370 of the Constitution would disappear by being eroded progressively.”) 2 Pg. 24

13. It is being argued that only the J&K Constituent Assembly (CA) can scrap Article 370 (prompted by arguments in SC)

The J&K CA came into being through elections held in 1951. It’s first meeting was held on 31/10/1951. The CA came into being to draw up a Constitution for J&K and was dissolved in March 1957.

For more please see Daya Sagarji’s comments in points 18 and 19 below.  

14. Was a Census conducted in 1951 before deciding the electoral districts?

No.

15. So what was the basis for allocating seats among Jammu, Kashmir and Ladakh regions?

Yuvraj Karan Singh issued a proclamation on May 1, 1951, that the state shall be divided into a number of territorial constituencies, each with a population of 40,000 or as near thereto as possible, and each electing one member.

Thus 100 seats were decided (Kashmir having 43, Jammu 30 and Ladakh 2) of which 25 were kept for PoJK that were not to be included, for the time being, in the effective strength of the legislative assembly till the area is vacated by Pakistan.

Since no census data was available, 100 seats were decided on the basis of assumption and method of proportions. Some say the seats were allocated in a manner to give Kashmir more seats and hence control over J&K.

Read  All you wanted to know about Delimitation in Jammu and Kashmir   AND  Making sense of Jammu and Kashmir Census 2011 numbers

16. What about the new Constitution and 1957 elections? 

The new constitution of J&K became operational on 26/1/1957. It has 158 Sections, of which Section 3 says, ‘The State of J&K is and shall be an integral part of the Union of India’. Section 5 says, ‘The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India’.

Surya Martand Mandir, Anantnag. 2014. 

Senior Journalist Daya Sagarji (DS) and leading scribe on J&K affairs writes on the legal aspects in State Times, Jammu. Here are extracts from his articles – 

“It was on August 5, 2019 that The Constitution (Application to Jammu and Kashmir) Order C.O 272 of date August 5, 2019 was made by the President of India under the provisions of Art370 (1) of Constitution of India , that with respect to Art-370 of Constitution of India, the Constitution (Application to Jammu and Kashmir ) Order C.O 273 of date August 6, 2019 was made by the President of IndiaDeclaration Under Article 370(3) of the Constitution and Bill No. XXIX of 2019-The Jammu and Kashmir Reorganisation Bill, 2019 was passed by Parliament of India on 6th August 2019 (Act No: 34 of 2019 assented by President of India on August 9, 2019).” Source

17. Was Art 370 a bridge between J&K and India? 

In part 2 Dayaji wrote, “Art-1 is not applied through Art-370. Hence anyone who opines/ believes that Art-370 is 'connecting' as a bridge J&K with India union is carrying a wrong opinion.” To read full reasoning and Article 370 as passed in 1950 click

18. Since there is no Constituent Assembly of J&K today (as mentioned in Art 370(3) so the recommendations made (by Parliament) to President for issuing the said notification are not constitutionally valid. (prompted by discussions in SC)

Dayaji wrote, “A proclamation (Jammu and Kashmir Constitution (Amendment) Act, 2008 (Samvat) 1951AD)  issued by Yuvraj Karan Singhji  had in 1951 named the then Praja Sabha/ Constituent Assembly/ Legislative Assembly to be same as far as legislature/ legislative function was concerned.” Therefore, the 'Constituent assembly ' is still there in the form of Legislative Assembly of J&K. 

In Part 3 Dayaji wrote, “The J&K Constituent Assembly was assigned the job of framing J&K Constitution as state of the Union of India in 1951 and was well aware of the Clause (3) of Article 370. Therefore, it was for the Constituent Assembly (that is said to have ultimately dispersed after writing and adopting Constitution of J&K in 1956 (16 November ) to make some recommendations to the President with regard to status of Article 370 since it was a Temporary Provision w.r.t. to J&K. 

Many Constitution (Application to J&K) orders (C.Os76-77, 83-94, 108,122,148 etc) have been made by President of India after 1957 with the concurrence of State Government when there was no Constituent Assembly and the State Legislative Assembly has performed where ever needed. In August 2019 J&K was under president rule where LG/Governor becomes State and Parliament takes function of Legislative Assembly). To read full reasoning/article click here

19. Can the Governor/Parliament assume role of Legislative Assembly? (prompted by arguments in court).

Yes.

In part 4 Dayaji wrote, “When there is President Rule under Art-356 of the Constitution the Governor becomes State and Parliament takes function of Legislative Assembly). (Art-356: Provisions in case of failure of constitutional machinery in States.- (1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation- (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament).

Hence Parliament could use either of the options i.e Art-368 and Art-370(3) and option of using recommendations of the Assembly/ Parliament has been well used with the provisions of constitutional of India to operate upon Art-370 vide C.O 373 0f 06-08-2019.” To read full article part 4 and reasoning click here

We shall add excerpts from Daya Sagarji’s subsequent articles on proceedings in the SC.

Another commonly asked question is– 

20. Why was Sheikh Abdullah and 25 others arrested in 1953?  

They were charged with conspiracy to overthrow the duly Constituted Government of J&K, and facilitating annexation of the State’s territory by Pakistan? (1 pg 67)

In his opening speech on 31/10/1951 Abdullah stated “that one of the objectives of the Constitution Assembly was to frame a Constitution for the further governance of the country, to decide about the future of the Royal dynasty, whether compensation should be paid to landowners etc and to declare its reasoned conclusions regarding accessions and future of the State. He enumerated three alternatives: accession to India or Pakistan or complete independence.” 1 Pg. 110

In 1950 the situation was a bit complicated, J&K was facing the heat of war supported and abetted by Pakistan who had forcefully occupied vast territory of the State. We were entangled in the UN.  But seventy plus years later the situation has changed! OR is instability in and non-integration of J&K with India supported by those powers who want India to be on the edge and keep its Army perpetually under pressure.

All quotes from Justice Anand’s book are courtesy and copyright LexisNexis (a division of Reed Elsevier India (Pvt Ltd), Universal Law Publishing. Errors if any are unintended and without malafide intent. You are free to have a different point of view.

References

1. The Constitution of Jammu and Kashmir Its Development and Comments. Eight Edition 2016 by Justice A S Anand.

2. The Truth behind Article 370 by Arvind Lavakare. 

3. Article 370 by M K Teng.

4. Real Face of Article 370 by Daya Sagar, published by Jammu Kashmir Study Centre.

Videos in SC 

1. For August 9, 2023

2. This is a mockery

3. Why did Parliament do that

4. It is a fraud on the Constitution  

This article should not be republished without written approval of www.esamskriti.com

Burnt Pandit homes Anantnag. 2014.