Introduction

Article 370: A Constitutional History of Jammu

and Kashmir
A. G. Noorani

Print publication date: 2011

Print ISBN-13: 9780198074083
Published to Oxford Scholarship Online: September 2012
DOI: 10.1093/acprof:oso/9780198074083.001.0001

Introduction
A.G. Noorani

DOI:10.1093/acprof:oso/9780198074083.003.0001

Abstract and Keywords

Article 370 of the Constitution of India relating to the State of Jammu and
Kashmir is now over sixty years old. The Constitution came into force on 26
January 1950 and with it, this unique provision. All other provisions were
debated in the Constituent Assembly of India after deliberations in its Drafting
Committee and, sometimes, in discussions in the Congress Parliamentary Party.
This chapter notes that the redrafting of Article 370 and a review of the
Constitution of Jammu and Kashmir are necessary. It holds that amendments
must be based on agreement between all the major parties in Jammu and
Kashmir. Given the political will, sincerity of purpose, and a spirit of
compromise, it is not difficult to retrieve from the wreckage of Article 370 a
constitutional settlement which satisfies the aspirations of the people of Jammu
and Kashmir.

Keywords:   Constitution of India, Article 370, Jammu and Kashmir, Congress Parliamentary Party,
political will, Constitution of Jammu and Kashmir, constitutional settlement

Article 370 of the Constitution of India relating to the State of and Kashmir is
now sixty years old. The Constitution came into force on 26 January 1950 and
with it, this unique provision. All other provisions were debated in the
Constituent Assembly of India after deliberations in its Drafting Committee and,
sometimes, discussions in the Congress Parliamentary Party.

Article 370 was discussed for five months by the Prime Minister of India,
Jawaharlal Nehru and his colleagues with the Prime Minister of Jammu and
Kashmir, Sheikh Mohammad Abdullah, and his colleagues; from May to October

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Introduction

1949 (Chapter 2, Doc. Nos 1–9). The State of Jammu and Kashmir is the only
State in the Union of India which negotiated the terms of its membership with
the Union. The Constituent Assembly merely put the imprimatur of its approval,
on 17 October 1949, to a draft agreed between the Union and the State. Article
370 records a solemn compact. Neither side can amend or abrogate it
unilaterally, except in accordance with the terms of that provision.

The Union Home Minister P. Chidambaram acknowledged in the Rajya Sabha on

6 August 2010 that Jammu and Kashmir had acceded to India in ‘unique
circumstances’ (Indian Express, 7 August 2010). He added that the State poses a
‘unique problem’ which requires a ‘unique (p.2) solution’. It is not very evident,
however, that the dimensions of the uniqueness and its implications are fully
realized. It is one thing to say that ‘it is important to win the hearts and minds of
the people of Jammu and Kashmir’. It is another to admit precisely what led to
the grim situation which called for this resolve and to define realistically the
measures which will accomplish the objective which the Minister mentioned.

A little over a decade after the enactment of Article 370, its co-architect, Prime
Minister Nehru, declared in the Lok Sabha on 27 November 1963 that Article
370

has been eroded, if I may use the word, and many things have been done in
the last few years which have made the relationship of Kashmir with the
Union of India very close. There is no doubt that Kashmir is fully
integrated… We feel that this process of gradual erosion of article 370 is
going on. Some fresh steps are being taken and in the next month or two
they will be completed. We should allow it to go on. We do not want to take
the initiative in this matter and completely put an end to Article 370
(Chapter 9, Doc. No. 1).

There was no need for that, as the Union Home Minister Gulzari Lal Nanda
explained in the Lok Sabha on 4 December 1964: ‘the only way of taking the
Constitution (of India) into Jammu & Kashmir is through the application of
Article 370… It is a tunnel. It is through this tunnel that a good deal of traffic
has already passed and more will’ (Chapter 9, Doc. No. 2).

He pointed out that ‘while the normal process of (constitutional) amendment is

subject to stringent conditions, the process of amendment made available to
[sic.] Article 370 are very simple’—by a Presidential Order. In regard to the rest
of India, if a state’s powers are to be curbed, and correspondingly those of the
Union enlarged, the elaborate procedure laid down in Article 368 will have to be
followed. In regard to the State of Jammu and Kashmir, Nanda argued, a mere
executive order made by the President under Article 370 would suffice. His
successors in office accepted this interpretation of Article 370.

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Introduction

Nanda concluded: ‘What happens is that only the shell is there. Article 370,
whether you keep it or not, has been completely emptied of its contents. Nothing
has been left in it’ (Ibid.).

(p.3) This is the reality of ‘the special status’ of the State of Jammu and
Kashmir. Nehru was conscious of the indelicacy of the metaphor. Article 370 was
not ‘eroded’ by efflux of time or ravages of the elements. It was denuded of
content by conscious executive acts on his advice through one Presidential
Order after another. Of no other constitutional provision can the metaphor
(‘eroded’) be thus used. It is important to trace the steps by which this result
was accomplished.

The Indian Independence Act, 1947 empowered the Governor General of India
(Section 8(2)) to adapt the Government of India Act, 1935 as the interim
constitution till the enactment of a Constitution by the Constituent Assembly of
India. The Act, as adapted, served as a Constitution from 15 August 1947 to 25
January 1950.

Section 6(1) of the Act enabled ‘an Indian State’, a formerly princely state, to
accede to India by its ruler executing an Instrument of Accession. It is important
to note that no specific form was prescribed by the Act itself. All it required was
that the Instrument declare the act of accession and specify its terms. As a
matter of convenience the Government of India used the Draft Instrument which
was drawn up after the Act of 1935 became law. The federation it envisaged did
not come into being. In the case of Jammu and Kashmir, the Instrument of
Accession which the Ruler executed on 26 October 1947 was accompanied,
uniquely, by a letter of the same date signed simultaneously with the Instrument.
In law, such a document is a collateral document and the two form an integral
whole. The letter has the same legal effect as does, indeed, the Governor
General’s letter of acceptance dated 27 October 1947 (Chapter 1, Doc. Nos 5
and 6). Acceptance is a legal prerequisite under Section 6(1) of the Act. The
Governor General’s letter stipulated that ‘as soon as law and order have been
restored in Kashmir and her soil cleared of the invader; the question of the
State’s accession should be settled by a reference to the people’. Accordingly,
the White Paper on Jammu & Kashmir published by the Government of India
early in 1948 recorded: ‘In accepting the accession, the Government of India
made it clear that they would regard it as purely provisional until such time as
the will of the people of the State could be ascertained’ (Chapter 1, Doc. No. 7).

Clause 7 of the Instrument of Accession said, ‘Nothing in this instrument shall

be deemed to commit me in any way to acceptance of (p.4) any future
Constitution of India or to fetter my discretion to enter into arrangements with
the Government of India under any such future Constitution’ (Chapter 1, Doc.
No. 5). Except Jammu and Kashmir, every state accepted Part B of the
Constitution of India which contained provisions uniformly for the governance of

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Introduction

the former princely states. Jammu and Kashmir was the only state to declare its
intention to have its own Constitution drafted by its own Constituent Assembly.
That was as far back as 5 March 1948, by the Maharaja’s Proclamation, which is
why it negotiated the terms of Article 370 to protect those rights (Chapter 1,
Doc. No. 9).

The State had acceded to India in 1947 in respect only of defence, foreign
affairs, and communications. Negotiations were held on 15 and 16 May 1949 at
the Deputy Prime Minister Vallabhabhai Patel’s residence in New Delhi on
Kashmir’s future set-up. Nehru and Abdullah were present. Foremost among the
topics were ‘the framing of Constitution’ for the State and ‘the subjects in
respect of which the State should accede to the Union of India’. On the first,
Nehru recorded in a letter to the Abdullah (on 18 May) that both Patel and he
agreed that it was a matter for the State’s Constituent Assembly. ‘In regard to
(ii) the Jammu and Kashmir State now stands acceded to the Indian Union in
respect of three subjects; namely, foreign affairs, defence and communications.
It will be for the Constituent Assembly of the State when convened, to determine
in respect of which other subjects the state may accede’ (emphasis added,
throughout) (Chapter 2, Doc. No. 1(a)). Article 370 embodies this basic principle
which was reiterated throughout.

On 16 June 1949, Sheikh Abdullah, Mirza Mammad Afzal Beg, Maulana

Mohammed Saeed Masoodi, and Moti Ram Bagda joined the Constituent
Assembly of India (Chapter 2, Doc. No. 1(e)): Negotiations began in earnest on
Article 370 (Article 306A in the draft). N. Gopalaswamy Ayyangar tried to
reconcile the differences between Patel and Abdullah. A text, agreed on 16
October, was moved in the Constituent Assembly the next day, but was
unilaterally altered by Ayyangar. It was ‘A trivial change,’ he claimed in a letter
to the Sheikh on 18 October (Chapter 2, Doc. No. 4). Patel confirmed it to Nehru
on 3 November on his return from the United States (Chapter 2, Doc. No. 5).
Beg had withdrawn his amendment after the accord. Abdullah (p.5) and he
were in the lobby, and rushed to the House when they learnt of the change. In its
original form the draft would have made the Sheikh’s ouster in 1953 impossible.
It was an unfortunate breach which created distrust.

Article 370 embodies six special provisions for Jammu and Kashmir. First, it
exempted the State from the provisions of the Constitution providing for the
governance of all the states. Jammu and Kashmir was allowed to have its own
Constitution.

Second, Parliament’s legislative power over the State was restricted to three
subjects—defence, foreign affairs, and communications. The President could
extend to the State other provisions of the Constitution so as to provide a federal
constitutional framework if they related to the matters specified in the
Instrument of Accession. For this, only ‘consultation’ with the State government

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Introduction

was required since the State had already accepted them by the Instrument. But,
thirdly, if other ‘constitutional’ provisions or other Union powers were to be
extended to Kashmir, the prior ‘concurrence’ of the State government was
required.

The fourth feature is that this concurrence was strictly provisional. It had to be
ratified by the State’s Constituent Assembly. Article 370(2) says clearly: ‘If the
concurrence of the Government of the State … be given before the Constituent
Assembly for the purpose of framing the Constitution of the State is convened, it
shall be placed before such Assembly for such decision as it may take thereon.’

The fifth feature is that the ‘State Government’s authority to give the
‘concurrence’ lasts only till the State’s Constituent Assembly is ‘convened’. It is
an ‘interim’ power. Once the Constituent Assembly met, the State government
could not give its own ‘concurrence’; still less, after the Assembly met and
dispersed. Moreover, the President cannot exercise his power to extend the
Indian Constitution to Jammu and Kashmir indefinitely. The power has to stop at
the point the State’s Constituent Assembly drafted the State’s Constitution and
decided finally what additional subjects to confer on the Union, and what other
provisions of the Constitution of India it should get extended to the State, rather
than having their counterparts embodied in the State Constitution itself. Once
the State’s Constituent Assembly had finalized the scheme and dispersed, the
President’s extending powers ended completely.

(p.6) The sixth special feature, the last step in the process, is that Article
370(3) empowers the President to make an order abrogating or amending it. But
for this also ‘the recommendation’ of the State’s Constituent Assembly ‘shall be
necessary before the President issues such a notification’.

Article 370 cannot be abrogated or amended by recourse to the amending

provisions of the Constitution of India which apply to all the other states;
namely, Article 368. For, in relation to Jammu and Kashmir, Article 368 has a
proviso which says that no constitutional amendment ‘shall have effect in
relation to the State of Jammu and Kashmir’ unless applied by order of the
President under Article 370. That requires the concurrence of the State’s
government and ratification by its Constituent Assembly.

Jammu and Kashmir is mentioned among the states of the Union in the First
Schedule as Article 1(2) requires. But Article 370(1)(c) says: ‘The provisions of
Article 1 and of this Article shall apply in relation to that State.’ Article 1 is thus
applied to the State through Article 370.

Ayyangar’s exposition of Article 370 in the Constituent Assembly of India on 17

October 1949 is authoritative.

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Introduction

We have also agreed that the will of the people, through the instrument of
a Constituent Assembly, will determine the Constitution of the State as well
as the sphere of Union jurisdiction over the State. … You will remember
that several of these clauses provide for the concurrence of the
Government of Jammu and Kashmir State. Now, these relate particularly to
matters which are not mentioned in the Instrument of Accession, and it is
one of our commitments to the people and Government of Kashmir that no
such additions should be made except with the consent of the Constituent
Assembly which may be called in the State for the purpose of framing its
Constitution (Chapter 2, Doc. No. 3).

Ayyangar explained:

the provision is made that when the Constituent Assembly of the State has
met and taken its decision both on the Constitution for the State and on
the range of federal jurisdiction over the State, the President may, on the
recommendation of that Constituent Assembly, issue an Order that this
Article 306A (370 in the draft) shall either cease to be operative, or shall
be operative only subject (p.7) to such exceptions and modifications as
may be specified by him. But before he issued any order of that kind, the
recommendations of the Constituent Assembly will be a condition
precedent (Chapter 2, Doc. No. 2).

In plain words, Article 370 cannot be invoked after the State’s Constituent
Assembly has ‘taken its decision’ on the Constitution ‘and on the range of federal
jurisdiction over the State’.

The unique process of Presidential Orders altering constitutional provisions by a

mere executive order ends with the final decision of the State’s Constituent
Assembly. Ayyangar repeatedly said that the State government’s concurrence
alone will not do. ‘That concurrence should be placed before the Constituent
Assembly when it meets and the Constituent Assembly may take whatever
decisions it likes on those matters.’ It was, as he put it, ‘only an interim
arrangement’.

In 1949, no one knew when Kashmir’s Constituent Assembly would be elected.

Ayyangar therefore said:

The idea is that even before the Constituent Assembly meets, it may be
necessary … that certain items which are not included in the Instrument of
Accession would be appropriately added to that list in the Instrument …
and as this may happen before the Constituent Assembly meets, the only
authority from whom we can get consent for the addition is the
Government of State.

This was explicitly only for that interim period.

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Introduction

Article 370(1)(b) is clear. ‘The power of Parliament to make laws for the said
State shall be limited to’ (i) matters in the Union and Concurrent Lists
corresponding the broad heads specified in the Instrument of Accession and (ii)
such other matters in the said Lists as, with the concurrence of the Government
of the State the President may by order specify. An Explanation defined ‘the
Government of the State’. Similar ‘concurrence’ was required when extending
provisions regarding Union institutions beyond the agreed ones. But Article
370(2) stipulated clearly that if that concurrence is given ‘before the Constituent
Assembly … is convened, it shall be placed before such Assembly for such
decision as it may take thereon.’

Once Kashmir’s Constituent Assembly was ‘convened’ on 31 October 1951, the

State government lost all authority to accord any ‘concurrence’ to the Union.
With the Assembly’s dispersal on 17 November 1956, (p.8) after adopting the
Constitution of Jammu and Kashmir, vanished the only authority which alone
could vide: (i) more powers to the Union and (ii) accept Union institutions other
than those specified in the Instrument of Accession. All additions to Union
powers since then are unconstitutional. This understanding informed decisions
right until 1957. It was abandoned thereafter.

The Constituent Assembly of India adopted the Constitution of India on 26

November 1949. A day earlier, the ruler of Kashmir made a Proclamation
declaring that it ‘shall in so far as it is applicable to the State of Jammu and
Kashmir, govern the constitutional relationships between this State and the
contemplated Union of India’ (Chapter 2, Doc. No. 6). On 26 January 1950, the
President made his first order under Article 370, extending specified provisions
of the new Constitution to the State (Chapter 2, Doc. No. 8).

On 20 April 1951, the ruler made a Proclamation for convening the State’s
Constituent Assembly. It first met on 31 October 1951. Two issues came to the
fore. Nehru was eager to secure Kashmir’s ‘closer integration’ with India; the
Sheikh was as eager to preserve its autonomy. The Delhi Agreement that
followed was announced at a press conference in Delhi on 24 July 1952 by both.
This Union–State accord had no legal force by itself. Only an Order under Article
370 could confer that after the State’s Constituent Assembly gave its
concurrence, as it alone could, the State government having lost the power on
31 October 1951 when the Assembly was convened.

The Sheikh, meanwhile, pressed for an order to redraft ‘the Explanation’ in

Article 370 redefining the State government as one headed by an elected ‘Sadar-
i-Riyasat (State President) … acting on the advice’ of his ministers.

Nehru himself wrote on 29 July 1952: ‘It is not a perfectly clear matter from the
legal point of view how far the President can issue notifications under Article
370 several times’ (Chapter 4, Doc. No. 8). On 6 September 1952, President

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Introduction

Rajendra Prasad pointed out the illegality of such a course in a closely reasoned
note. He questioned ‘the competence of the President to have repeated recourse
to the extraordinary powers conferred on him’ by Article 370. He added: ‘Any
provision authorizing the executive government to make amendments in the
Constitution’ (p.9) was an incongruity and endorsed Ayyangar’s views on the
finality of a single order under Article 370. ‘I have little doubt myself that the
intention is that the power is to be exercised only once, for then alone would it
be possible to determine with precision which particular provisions should be
excepted and which modified’ (Chapter 5, Doc. No. 6).

The President concluded: ‘The conclusion: therefore, seemed to me to be

irresistible that Clause (3) of Article 370 was not intended to be used from time
to time as occasion required. Nor was it intended to be used without any limit as
to time. The correct view appears to be that recourse is to be had to this clause
only when the Constituent Assembly (sic.) (Constitution) of the State has been
fully framed’ (Ibid.).

But he yielded to Nehru’s pressure and made the Order on 15 November 1952
(Chapter 5, Doc. No. 10). Seeds of distrust were sown on 17 November 1949. At
the time of the Delhi Agreement, distrust between Nehru and Abdullah was
palpable. This was reflected in Sheikh Abdullah’s warning in the State’s
Constituent Assembly on 11 August 1952 while explaining the terms of the Delhi
Agreement: ‘I would like to make it clear that any suggestions of altering
arbitrarily the basis of our relationship with India would not only constitute a
breach of the spirit and letter of the Constitution, but it may invite serious
consequences for a harmonious association of our State with India’ (Chapter 4,
Doc. No. 12; vide also Doc. No. 11).

Nehru and Abdullah viewed the Agreement differently. To Nehru it was a step
towards a closer integration of the State with India as well as a prelude to the
finalization of its accession. This alarmed Sheikh Abdullah. On 14 May 1948
Indira Gandhi wrote to her father from Srinagar: ‘They say that only Sheikh
Saheb is confident of winning the plebiscite …’ (Sonia Gandhi (ed.)) Two Alone,
Two Together, Penguin, New Delhi, 2004, pp. 512–18). Five years later even
Sheikh Abdullah had abandoned hope as President Rajendra Prasad reported to
Prime Minister Nehru on 14 July 1953 after the Vice-President S.
Radhakrishnan’s visit to Kashmir (Valmiki Choudhari (ed.), Dr. Rajendra Prasad’s
Correspondence and Select Documents, Allied Publishers, New Delhi, 1987,
Volume 16, p. 91).

Sheikh Abdullah sensed the popular mood and the popular desire for finality. He
set up a Committee of eight of his close colleagues in (p.10) the National
Conference to devise alternatives. They included men like Bakshi Ghulam
Mohammed and G.M. Sadiq who favoured plebiscite in various forms as late as
on 9 June 1953 (Chapter 6, Doc. No. 2). Abdullah kept Nehru as well as Maulana

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Introduction

Abul Kalam Azad fully informed. He could not have derived much comfort from a
confidential note which Nehru wrote to him from Sonemarg in Kashmir on 25
August 1952 (Chapter 5, Doc. No. 5).

It reflected Nehru’s desire for finality but through a course diametrically

opposite to that which his friend favoured. The Sheikh sought finality by an
agreement on Kashmir between India and Pakistan. Nehru sought finality by a
unilateral finalization of accession by the State’s Constituent Assembly to the
exclusion of Pakistan, with which he had been negotiating since the accession.
The plan could not have been absent from his mind when he concluded the Delhi
Agreement with Abdullah only a month earlier. To Abdullah, the course Nehru
recommended spelt his political suicide. Nehru panicked at the course on which
his erstwhile interlocutor had set himself and decided to act ruthlessly. As
Abdullah explained to Maulana Azad on 16 July 1953, ‘If I fail to gain in the
confidence of the people here, I will not be able to render any service to my
friends’ (in New Delhi). This letter was in reply to Nehru’s offer, conveyed
through Azad, ‘that the special position given to Kashmir will be made
permanent. If such a declaration had been made at an appropriate time it would
have helped. Events in India had alarmed Kashmiris’ (Chapter 6, Doc. No. 4).
Nehru’s Note of 25 August 1952 ran contrary to this belated offer.

The Note which the Prime Minister dictated to his Private Secretary M.O.
Mathai on 31 July 1953 clinches the long debated question whether he knew and
approved of his former friend’s arrest (Chapter 6, Doc. No. 5). It records to the
last detail—dismissal of Sheikh’s government; take ‘prominent members of the
executive of the Party (the National Conference) into confidence’; render ‘such
assistance as may be considered necessary for the maintenance of law and order
should be available; (the army had been put on alert); and officers ‘whose loyalty
is doubted’ should be removed. It was to be a swift work followed by a thorough
purge.

(p.11) The unconstitutionality of the Sheikh’s dismissal is now universally

recognized. The ground stated in the Sardar-i-Riyasat’s letter to the Premier on
8 August and repeated in his order of dismissal on the same day is manifestly,
demonstrably irrelevant; namely ‘the divergence within your Cabinet’ (Chapter
6, Doc. Nos 6 and 7). No government in India, Central and State, is free from
this ‘divergence’. The Sheikh was not asked to demonstrate his majority in the
House. He was put in prison. His Deputy Bakshi Ghulam Mohammed, who had
agreed with him, on the record, till as late as on 9 June 1953, was made Prime
Minister. He presided over a regime of corruption till 1964 and was censured by
a Commission of Inquiry headed by a former Judge of the Supreme Court, Justice
N. Rajagoplala Ayyangar (Report of the Commission of Inquiry, J&K Government,
Srinagar 30 June 1967).

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Introduction

As for the Sheikh, he was released from prison on 6 January 1958, rearrested on
29 April 1958; belatedly implicated on 23 October 1958 in a case of conspiracy
filed on 17 May 1958 and released from prison only on 8 April 1964 when the
case was withdrawn (vide A.G. Noorani, The Kashmir Question, Manaktalas,
Bombay, 1964, pp. 79, 80, and 86). He was detained in May 1965 and released
on 2 January 1968; interned in New Delhi in December 1970 and freed only on 5
June 1972 (Sheikh Muhammed Abdullah, Aatish-e-Chinar, 1982, Srinagar, p.
836).

Documents in Chapter 3 show the earnest with which Kashmiri’s Constituent

Assembly undertook its task from 1951 to 1952. Chapter 7 contains documents
which record the new turn its proceedings took with the Sheikh and his
colleagues, especially the principal colleague, Mirza Muhammad Afzal Beg,
behind the bars. Beg was the moving figure in the Assembly’s proceedings in
1951–2; in the negotiations on Article 370 and the Delhi Agreement; and in the
talks in 1974.

During the ‘internal emergency’ proclaimed by the Government of India on 25

June 1975, a large number of opposition leaders were put in prison. This raised a
question as to the legality of Parliament’s decisions thereafter. The matter was
not pursued since the Government was defeated and lost the General Election of
March 1977. It is, however, of more than academic interest in the proceedings of
Kashmir’s Constituent Assembly after the events of 8 August 1953. In re: K.
Anandan (p.12) (AIR 1952 Madras 117), the Madras High Court rejected the
detained Member of Legislative Assembly (MLA), K. Anandan Nambiar’s plea to
attend the House. Justice Somasundaram’s observations are however pertinent
to the arrest in Kashmir in 1953 and in the rest of India in 1975:

We, however, readily concede the contention of Mr S. Mohan

Kumaramangalam that if a party in power detains a political opponent or
continues his detention with the mala fide object of stifling opposition and
prejudicing the party to which he belongs in a forthcoming election, there
would be an undermining of the basis of the Constitution, putting in
jeopardy the second pillar to which we have adverted (‘honesty, character
and integrity in the component organs of the Constitution’) (Para 7 of
Judgement Appadurai, p. 119).

Even while the State’s Constituent Assembly was still at work, the President
made an Order under Article 370 on 14 May 1954; presumably in
implementation of the Delhi Agreement. It is regarded to this day as the basic
order (Chapter 7, Doc. No. 5). The Constituent Assembly had given its
concurrence, three months earlier, in a quaint manner on 15 February 1954
while adopting the Report of the Drafting Committee.

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Introduction

This volume contains proceedings, and documents of the Constituent Assembly

of Jammu and Kashmir which are not easy of access now. Two features are
particularly noteworthy. One, reflected in Doc. Nos 6, 11, and 12 of Chapter 7—
the latter two on 14 November 1956—testify to the Assembly’s consciousness of
the fact that its hurried ratifications of amendments to the Constitution of India,
enacted by Parliament, was indispensable to their legal efficacy. The other is the
solemn, very formal character of its dissolution on 26 January 1957 after
adopting the State’s Constitution on 17 November 1956 (Chapter 7, Doc. No.
13).

The Constituent Assembly of India adopted the Constitution of India on 26

November 1949 and resolved to ‘adjourn till such date before the 26th of
January 1950 as the President may fix’ (Constituent Assembly Debates, Volume
12, p. 996). It met again on 24 January 1950 when Dr Rajendra Prasad was
elected the first President of India and members signed three copies of the
Constitution. The President of the Constituent Assembly, Dr Rajendra Prasad,
declared: ‘The House will (p.13) stand adjourned now sine die.’ The
proceedings record: ‘The Constituent Assembly is adjourned, sine die’ (Ibid., p.
7).

The contrast with the end of the deliberations of the Constituent Assembly of
Jammu and Kashmir could not have been more glaring. It formally, solemnly
resolved to dissolve itself by considered, deliberate moves. On 17 November
1956 it adopted Mir Qasim’s resolution that ‘this Assembly resolves that it
should stand dissolved on the 26th day of January 1957, which is the date of the
commencement of the Constitution’ (Chapter 7, Doc. No. 14). On 25 January
1957, the President, G.M. Sadiq declared: ‘Today this historic session ends and
with this the Constituent Assembly is dissolved according to the resolution
passed on 17th November, 1956.’ The record of the proceedings contains this
Note: ‘The Clock struck 12 P.M. and the Constituent Assembly was dissolved by
the President, Hon’ble G.M. Sadiq, according to the resolution passed by the
Constituent Assembly on 17th November, 1956’ (Chapter 7, Doc. No. 16).

These were deliberate and considered actions and their legal significance brooks
no evasion—the sole ratificatory authority to the extension of the Centre’s
powers over the State on the extension of additional provisions of the
Constitution of India was gone. The State Government’s ‘concurrence’, valid only
till the Assembly first met on 31 October 1951, and then also subject to the
Constituent Assembly’s ratification, was no substitute for the Assembly’s
ratification. No executive can usurp the powers of a legislature, still less those of
a constituent assembly. All the more so if the executive had come to power
through one rigged poll after another. ‘From 1953 to 1975, Chief Ministers of
that State had been nominees of Delhi. Their appointment to that post was
legitimized by the holding of farcical and totally rigged elections in which the
Congress party led by Delhi’s nominee was elected by huge majorities.’ This

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Introduction

authoritative description of a blot on the record, which most overlook, was

written by B.K. Nehru, who was Governor of Jammu and Kashmir from 1981 to
1984, in his memoirs published in 1997 (Nice Guys Finish Second, Viking Books,
1997, New Delhi, pp. 614–15).

Chapter 11, Doc. No. 1 is a compilation of texts of the President’s Orders under
Article 370 made from 1954 to 1994. In all, ninety-four (p.14) of the ninety-
seven entries in the Union List were extended to Jammu and Kashmir as were
260 of the 395 Articles of the Constitution.

Worse, the State’s Constitution itself was overridden by those Orders. Its basic
structure was altered. The head of state elected by the State legislature was
replaced by a Governor nominated by the Centre. Article 356 (imposition of
President’s rule) was applied despite a provision in the State’s Constitution for
Governor’s rule (Section 92). This was done on 21 November 1964. On 24
November 1966, the Governor replaced the Sadar-i-Riyasat after the State’s
Constitution had been amended on 10 April 1965 by the Sixth Amendment in
violation of Section 147 of the Constitution. Section 147 makes itself immune to
amendment. It referred to the Sadar-i-Riyasat and required his assent to
constitutional amendments. He was elected by the Assembly (Section 27[2]). To
replace him by the Centre’s nominee was unconstitutionally to alter the basic
structure of the Constitution (Chapter 10, Doc. No. 1(a) and (b)).

Article 370 was used freely not only to amend the Constitution of India but also
of the State. On 23 July 1975 an order was made debarring the State legislature
from amending the State Constitution on matters in respect of the Governor, the
Election Commission, and even the composition of the Upper House, the
Legislative Council.

It would be legitimate to ask how all this could pass muster when there existed a
Supreme Court of India. Three cases it decided tell a sorry tale. In Prem Nath
Kaul v State of J&K, decided in 1959, a Constitution Bench consisting of five
judges unanimously held that Article 370(2) ‘shows that the Constitution-makers
attached great importance to the final decision of the Constituent Assembly, and
the continuance of the exercise of powers conferred on the Parliament and the
President by the relevant temporary provisions of Article 370(1) is made
conditional on the final approval by the said Constituent Assembly in the said
matters.’ It referred to Clause (3) and said that ‘the proviso to Clause (3) also
emphasizes the importance which was attached to the final decision of
Constituent Assembly of Kashmir in regard to the relevant matters covered by
Article 370.’ The Supreme Court ruled that ‘the Constitution-makers were
obviously anxious that the said relationship should be (p.15) finally determined
by the Constituent Assembly of the State itself’ (Chapter 11, Doc. No. 2 (a) and
(b)).

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Introduction

But, in 1968, in Sampat Prakash v the State of J&K, another Bench ruled to the
contrary without even referring to the 1959 case. Justice M. Hidayatullah sat on
both Benches. The Court held that Article 370 can still be used to make Orders
thereunder despite the fact that the State’s Constituent Assembly had ceased to
exist.

Four basic flaws stand out in the judgement. First, the Attorney General cited
Ayyangar’s speech only on the India-Pakistan war of 1947, the entanglement
with the United Nations, and the conditions in the State. On the basis, the court
said, in 1968, that ‘the situation that existed when this article was incorporated
in the Constitution has not materially altered,’ twenty-one years later. It ignored
completely Ayyangar’s exposition of Article 370 itself; fundamentally, that the
Constituent Assembly to Kashmir alone had the final say.

Secondly, it brushed aside Article 370(2) which lays down this condition, and
said that it spoke of ‘concurrence given by the Government of State before the
Constituent Assembly was convened and makes no mention at all of the
completion’ of its work or its dissolution.

The supreme power of the State’s Constituent Assembly to ratify any change, or
refuse to do so, was clearly indicated. Clause (3) on the cessation of Article 370
makes it clearer still. But the Court picked on this clause to hold that since the
Assembly had made no recommendation that Article 370 be abrogated, it should
continue. It, surely, does not follow that after that body dispersed the Union
acquired the power to amass powers by invoking Article 370 when the decisive
ratifying body was gone.

Thirdly, the Supreme Court totally overlooked the fact that on its interpretation,
Article 370 can be abused by collusive State and Central governments to reduce
Article 370 to a nought. Lastly, the Court misconstrued the State Constituent
Assembly’s recommendation of 17 November 1952, which merely defined in an
Explanation ‘the Government of the State’. To the Supreme Court this meant
that the Assembly had ‘expressed its agreement to the continued operation of
this Article by making a recommendation that it should be operative with this
modification only.’ It had made no such recommendation. (p.16) The
Explanation said no more than that ‘for the purposes of this Article, the
Government of the State means …’ It does not, and indeed, cannot, remove the
limitations on the State government’s power of concurrence imposed by Clause
(2); namely, ratification by the Constituent Assembly.

The Supreme Court laid down no limit whatever whether as regards the time or
the content. ‘We must give the widest effect to the meaning of the word
“modification” used in Article 370(1)’. The net result of this ruling was to give a
carte blanche to the Government of India to extend to Jammu and Kashmir such
of the provisions of the Constitution of India as it pleased.

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Introduction

In 1972, in Mohammed Maqbool Damnoo v the State of J&K, another Bench blew
sky high the tortuous meaning given to the explanation. It was a definition which
had become ‘otiose’. But this Bench also did not refer to the 1959 ruling (1972)
2 SC 735). Cases there are, albeit rare, when courts have overlooked a
precedent. But that is when there is a plethora of them. Article 370 gave rise
only to three cases. The first was studiously ignored in both that followed. The
Supreme Court found no difference between an elected Sadar-i-Riyasat and an
appointed Governor. ‘There is no question of such a change being one in the
character of that government from a democratic to a non-democratic system.’ If
the Constitution of India is amended to empower the Prime Minister to nominate
the President, as Sri Lanka’s 1972 Constitution did, would it make no difference
to its democratic character? To this Bench, the essential feature of Article 370(1)
(b) and (d) is the necessity of the concurrence of the State government, not the
Constituent Assembly. This case was decided before the Supreme Court
formulated in 1973 the doctrine of the unamendable ‘basic structure’ of the
Constitution.

Sheikh Abdullah had no cards to play when he concluded an accord with Indira
Gandhi and became Chief Minister on 24 February 1975 (Chapter 11, Doc. No.
3). At the outset, on 23 August 1974, he had written to G. Parthasarathi: ‘I hope
that I have made it abundantly clear to you that I can assume office only on the
basis of the position as it existed on 8 August 1953.’ Judgement on the changes
since will be deferred until the newly elected Assembly comes into (p.17)
being. On 13 November 1974, G. Parthasarathi and M.A. Beg signed ‘Agreed
Conclusions’: Article 370 remained; so did the residuary powers of legislation
(except in regard to anti-national acts); constitutional provisions extended with
changes can be ‘altered or repealed’; the State could review Central laws on
specified topics (welfare, culture, and so on) counting on the Centre’s
‘sympathetic consideration’; and a new bar on amendment to the State
Constitution regarding the Governor and the Election Commission. Differences
on ‘nomenclature’ of the Governor and Chief Minister were ‘remitted to the
principles’. Differences persisted on the Election Commission, Article 356, and
other points. On 25 November, Abdullah sought a meeting with Prime Minister
Indira Gandhi. Her reply not only expressed doubt on the usefulness of talks but
also on his commitment to the basic features of the State’s Constitution and to
the democratic functioning of the Government. Hurt, he wrote back ending the
parleys. They met at Pahalgam. An exchange of letters, on 13 February 1975,
clinched the deal on the basis of the Agreed Conclusions.

This was a political accord between an individual, however eminent, and the
Government of India, like the Punjab Accord (24 July 1985); the Assam Accord
(15 August 1985); and the Mizoram Accord (30 June 1986)—each between the
Government and the opposition. It cannot override Article 370; still less sanctify
constitutional abuse. It bound the Sheikh alone and only until 1977.

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Introduction

This was explicitly an accord on ‘political cooperation between us’, as Indira

Gandhi wrote (16 December 1974). On 12 February 1975, Abdullah recorded
that it provided ‘a good basis for my cooperation at the political level’. In
Parliament, on 3 March 1975, she called it a ‘new political understanding’. He
was made Chief Minister on 24 February, backed by the Congress’s majority in
the Assembly and on the understanding of a fresh election soon. Sheikh
Abdulah’s memoirs Aatish-e-Chinar (Urdu) record her backtracking on the
pledge in March 1977 when she lost the Lok Sabha elections. The Congress
withdrew support and staked a claim to form a government. Governor’s rule was
imposed. The Sheikh’s National Conference won the elections with a resounding
majority on a pledge to restore Jammu and Kashmir’s autonomy. The 1975
accord had collapsed.

(p.18) It was, I can reveal, based on gross error. The Agreed Conclusions said
(Para 3): ‘But provisions of the Constitution already applied to the State of J&K
without adaptation or modification are unalterable’. This preposterous assertion
was made in the teeth of the Sampat Prakash case. One Order can always be
rescinded by another. All the orders since 1954 can be revoked; they are a
nullity anyway. Beg was precariously ill and relied on advice which
Parthasarathi’s ‘expert’ had given him. He was one S. Balakrishnan whom R.
Venkataraman refers to as ‘Constitutional Adviser in the Home Ministry’ in his
memoirs. It is no disrespect to point out that issues of such complexity and
consequence are for counsel’s opinion; not from a solicitor, still less a bureaucrat
even if he had read the law. Even the Law Secretary would have insisted on the
Attorney General’s opinion. Amazed at what Beg had told me in May 1975, I
pursued the matter and eventually met Balakrishnan in 1987. He confirmed that
he had, indeed, given such advice. It was palpably wrong. The 1975 accord,
based or a fundamental error of law, is worse than useless. It is harmful to
Kashmir’s rights and interests. It has neither legal efficacy nor moral worth.

The Beg–Parthasarathi Agreed Conclusions of 13 November 1974, on which the

Indira Gandhi–Sheikh Abdullah Accord of February 1975 was based provided in
Para 5:

As an arrangement reciprocal to what has been provided under Article

368, a suitable modification of that Article as applied to the State should
be made by Presidential order to the effect that no law made by the
legislature of the State of Jammu and Kashmir, seeking to make any
change in or in the effect of any provision of the Constitution of the State
of Jammu and Kashmir relating to any of the under mentioned matters
shall take effect unless the Bill, having been reserved for the consideration
of the President receives his assent.

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Introduction

The matters are: (a) the appointment, powers, functions, duties, privileges
and immunities of the Governor; (b) The following matters relating to
elections, namely, the superintendence direction and control of elections by
the Election Commission of India, eligibility for inclusion in the electoral
rolls without discrimination, adult suffrage, and composition of the
Legislative Council, being matters specified in Sections 138, 139, 140 and
50 of the Constitution of the State of Jammu and Kashmir (Chapter 11,
Doc. No. 3).

The reference to reciprocity is farcical. Shortly after Sheikh Abdullah assumed

office, now as Chief Minister of Jammu and Kashmir, the (p.19) President made
an Order under Article 370(1), on 23 July 1975 (CQ 101) avowedly ‘with the
concurrence’ of the State Government. It overrode the State’s Constitution and
laid down ‘(b) After Clause (3) of Article 368, the following shall be added,
namely:

(4) No law made by the Legislature of the State of Jammu and Kashmir seeking
to make any change in or in the effect of any provision of the Constitution of
Jammu and Kashmir relating to:—

(a) appointment, powers, functions, duties, emoluments, allowances, privileges,

or immunities of the Governor, or

(b) superintendence, direction, and control of elections by the Election

Commission of India, eligibility for inclusion in the electoral rolls without
discrimination, adult suffrage and composition of the legislative Council, being
matters specified in Sections 138, 139, 140, and 50 of the Constitution of Jammu
and Kashmir.

Shall have any effect unless such law has, after having been reserved for the
consideration of the President, received his assent.

However, Article 147 of the Constitution of Jammu and Kashmir does not require
the President’s assent for any amendment to the Constitution; only the assent of
the Governor. It says:

an amendment of this Constitution may be initiated only by the

introduction of a Bill for the purpose in the Legislative Assembly, and when
the Bill is passed in each House by a majority of not less than two-thirds of
the total membership of that House, it shall be presented to the Governor
for his assent and, upon such assent being given to the Bill, the
Constitution shall stand amended in accordance with the terms of Bill. …
(Chapter 11, Doc. No. 1)

The Order of 23 July 1975 is manifestly unconstitutional for two reasons. First
the State Government lacked the legal competence to accord any such

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Introduction

‘concurrence’ after the Constituent Assembly was convened on 31 October 1951.

Once that sole consenting body, the Assembly, was dissolved on 17 November
1956, the President can make no Order under Article 370. Secondly and
fundamentally, Article 370 envisages extension of the Constitution of India to the
State. It cannot be invoked to amend the State’s Constitution. Such an order is
an abuse of Article 370 and, therefore, void.

Jammu and Kashmir has been put in a status inferior to that of other states. One
illustration suffices to demonstrate this. Parliament had (p.20) to amend the
Constitution four times, by means of the Fifty-ninth, Sixty-fourth, Sixty-seventh,
and Sixty-eighth Constitution amendments, to extend President’s rule imposed in
Punjab on 11 May 1987. For the State of Jammu and Kashmir, the same result
was accomplished, from 1990 to 1996, by mere executive orders under Article
370.

Another gross case illustrates the capacity for abuse. On 30 July 1986, the
President made an Order under Article 370, extending to Kashmir Article 249 of
the Constitution in order to empower Parliament to legislate even on a matter in
the State List on the strength of a Rajya Sabha resolution. ‘Concurrence’ to this
was given by the Centre’s own appointee, Governor Jagmohan. G.A. Lone, a
former Secretary, Law and Parliamentary Affairs to the State Government,
described how the ‘manipulation’ was done ‘in a single day’ against the Law
Secretary’s advice and in the absence of a Council of Ministers (Chapter 11,
Doc. No. 3A).

The Nehru–Abdullah Agreement in July 1952 (the Delhi Agreement) confirmed

that the residuary powers of legislation (on matters not mentioned in the State
List or the Concurrent List), which Article 248 and Entry 97 (Union List) confer
on the Union, will not apply to Kashmir. The Order of 1986 purported to apply to
the State Article 249, which empowers Parliament to legislate even on a matter
in the State List if a Rajya Sabha resolution so authorizes it by a two-thirds vote.
But it so amended Article 249 in its application to Kashmir as in effect to apply
Article 248 instead—‘any matter specified in the resolution, being a matter
which is not enumerated in the Union List or in the Concurrent List’ (Chapter
11, Doc. No. 1).

The Union thus acquired the power to legislate not only on all matters in the
State List, but others not mentioned in the Union List or the Concurrent List—
the residuary power. In relation to other states, an amendment to the
Constitution would require a two-thirds vote by both Houses of Parliament plus
ratification by the states (Article 368). For Kashmir, executive orders have
sufficed since 1953 and can continue till doomsday. ‘Nowhere else, as far as I
can see, is there any provision authorizing the executive government to make
amendments in the Constitution,’ President Rajendra Prasad pointed out to

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Introduction

Prime (p.21) Minister Nehru on 6 September 1952. Is this the state of things
we wish to perpetuate?

The State Assembly adopted, on 26 June 1990, a resolution recording its

acceptance of the Report of the State Autonomy Committee and asked the Union
government and the Government of Jammu and Kashmir to take positive and
effective steps for the implementation of the same (Doc. Nos 90 and 91). On 4
July 2000, the Union Cabinet said that the ‘resolution was unacceptable … would
set the clock back and reverse the natural process of harmonizing the
aspirations of the people of Jammu & Kashmir with the integrity of the
State’ (The Hindu, 5 July 2000, for the text).

This was understandable. The National Democratic Government was headed by

the Bharatiya Janata Party which was pledged to the repeal of Article 370. In
May 2004, the United Progressive Alliance, headed by the Indian National
Congress, came to power at the Centre.

Prime Minister Manmohan Singh convened three Round Table Conferences

(RTCs) on the Kashmir problem. At the second RTC, in Srinagar on 24 and 25
May 2006, five Working Groups were set up. The Chairman of four groups
presented their Reports to the third RTC in New Delhi on 24 April 2007—N.C.
Saxena on good governance; C. Rangarajan on economic development; M.K.
Rasgotra on strengthening relations across the Line of Control; and Mohammad
Hamid Ansari (now Vice-President) on confidence-building measures across
segments of society in the State. All, particularly the last two, were able
documents. It is another matter they were pigeonholed.

The Report of the fifth group, headed by Justice (retd) S. Saghir Ahmad, former
Chief Justice of the Jammu and Kashmir High Court and judge of the Supreme
Court, on Centre–State relations was the most sensitive. If wisely written, the
report could have served as a basis for an all-party dialogue and invested the
RTCs with success. The Working Group was formed to find a common ground on
self-rule, autonomy, and regional aspirations. More than any other report, this
was eagerly awaited. The Group held five meetings between 1 December 2006
and 3 September 2007. He submitted the Report suddenly on 18 December
2009.

(p.22) The issues under the purview of the Working Group V were as follows:
strengthening relations between the State and the Centre and to deliberate on
(i) matters relating to the special status of Jammu and Kashmir within the Indian
Union; (ii) methods of strengthening democracy, secularism, and the rule of law
in the State; (iii) effective devolution of powers among different regions to meet
regional, sub-regional, and ethnic aspirations. The central issue was erosion of
Article 370, a fact admitted by Jawaharlal Nehru in the Lok Sabha on 27
November 1963.

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Introduction

Each of the three unionist parties presented its case through its advocate— the
National Conference, through Abdul Rahim Rather, Finance Minister, the
People’s Democratic Party through Muzaffar Hussein Baig, former Deputy Chief
Minister; and the Congress, through Prof. Saifuddin Soz, former Union Minister.
The State’s Autonomy Report, an excellently documented expose of the Centre’s
abuse of Article 370, did not refer to the external dimension. The PDP’s concept
of ‘Self Rule’ supplies this vital component—the links between the two parts of
Jammu and Kashmir (vide Jammu & Kashmir: The Self-Rule Framework for
Resolution; Srinagar, October 2008).

Saghir Ahmad recorded all the parties’ submissions, including those of the
Bharatiya Janata Party and hinted at the outset that the job was beyond him. ‘In
order to find out an answer to these questions, it would be necessary to delve
into the archives of old records which would reveal the historical and political
background of Article 370 of the Constitution of India.’

The published material, including the debates in the Constituent Assembly and
the Nehru–Sheikh Abdullah correspondence, which he ignores, provide enough
material. In any case, two years were more than enough for archival research.

The entire debate on Article 370 in the Constituent Assembly on 17 October

1949, and N. Gopalaswamy Ayyangar’s authoritative exposition were completely
omitted.

There are but two main judgements of the Supreme Court on Article 370:
Premnath v. State of J&K (AIR 1959 S.C. 749) and Sampat Prakash vs. State of
J&K AIR 1970 1118, which, he rightly notes, took a contrary view to the first
case. Justice M. Hidayatullah was on (p.23) both Benches but did not refer to
the earlier case. The first case ruled in favour of autonomy; the second, against
it. A former judge of the Supreme Court charged with the task that he was,
should have analysed both. Both were dismissed in a single laconic paragraph.

In the same spirit, the Delhi Agreement of 1952 and the Indira Gandhi–Sheikh
Abdullah Accord of 1975 are also set out, so is a list of forty-three orders under
Article 370, after the major one of 14 May 1954; a list of the Chief Ministers
from 1952 to 2008; and the periods of Governor’s and Central Rule. The purpose
of the exercise emerges on page 64 of the 101-page report: ‘Article 370(1)(D)(II)
provides that an addition to the matters in the Union List and the Concurrent
List as set out in Clause 1(b), the Right of Parliament to make laws will also
extend to such other matters in that list as with the concurrence of the
government of the State, the President may by Order specify. The list of Chief
Ministers given above indicates that there was always a popular government in
power and, therefore, the Presidential orders were apparently issued with the
concurrence of that government.’ Governor B.K. Nehru held a different view.

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Introduction

The State Government’s power to accord its concurrence was subject to

ratification by the Constituent Assembly of Jammu and Kashmir as Clause (2) of
Article 370 makes clear and both Gopalaswamy Ayyangar and Sheikh Abdullah
emphasized. On page 16 he himself records Abdul Rahim Rather’s unanswerable
argument that the government’s power to accord concurrence ended once the
State’s Constituent Assembly met in 1951 and the Assembly’s ratificatory
authority ended on its dissolution in 1956.

Clearly, Saghir Ahmad was out to deny the erosion of Article 370 and the State’s
autonomy. The Explanation to Article 370(1) defining the government of the
State does not and cannot override the explicit bar in Clause (2) of Article 370.
But read this:

Under Governor’s Rule, there is, obviously, no Council of Ministers and the
Governor acts on his own without any advice being tendered to him by the
Council of Ministers. If any entry in the Union List which did not pertain to
three items, namely, Defence, External Affairs and Communication was
extended to the State of Jammu & Kashmir during Governor’s Rule, can it
be said that such entry was properly and legally extended. This is a query
which (p.24) naturally arises in the mind but it cannot be finally decided,
as this question, as stated by the present law Secretary in his report
quoted earlier, a Writ Petition Dr. Mohd Amin Andrabai and another
(Rakesh Kumar) v. Union of India and two others, namely, State of J&K, and
Mr Jagmohan, Governor is pending in the Delhi High Court since 1988
(Chapter 12, Doc. No. 4).

A case pending for over twenty years cannot debar a body like Group V or, for
that matter, anybody else from expressing an opinion on the law.

But where he does opine, it is in favour of the Union, not the State.

It is clear that legislative fields had already been indicated between the
Centre and the State in the Document of Accessories which was also
incorporated in the Indian Constitution in the form of Article 370 and,
therefore, the Parliament, to begin with, could make laws for the State of
Jammu and Kashmir only on the topics indicated in the Schedule attached
with the document of Accession but also on the topics subsequently
applied to the State of J&K.

Justice Saghir Ahmad concludes:

The question of Autonomy and its demand can be examined in the light of
the Kashmir Accord or in some other manner or on the basis of some other
formula as the present Prime Minister may deem fit and appropriate so as
to restore the Autonomy to the extent possible. This is also a long pending
demand which requires to be settled once for all to usher in a brighter

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Introduction

relationship between the Centre and the State. The question of

appointment of the Governor and dismissal of popular Government by the
Governor may be considered and resolved.

What help does such a report render to a Government of India that seeks
sincerely to resolve the problem? What help this counsel?: ‘A period of about 60
years is a long period and the Working Group recommends that the question of
Article 370 should be settled once for all and the state of uncertainty in respect
of this article should be given a final shape.’ He does not suggest even vaguely
how this should be done. What is plain is his acknowledgement that there is a
problem to be solved to give Article 370 ‘a formal shape’.

The Parliamentary Delegation which visited Kashmir on 20–21 September 2010

returned with strong impressions. One of its most senior (p.25) members,
Sitaram Yechury, member of the Politburo of the Communist Party (Marxist),
said in a press interview:

The intensity of the alienation surprised me. We believe that Article 370
has constantly been diluted and is not being implemented. … Article 370 is
a historic commitment we made to Kashmiris. How can you nullify that? An
order passed in 1954—the Constitution (Application to Jammu & Kashmir)
Order—circumscribed the provisions of Article 370. The starting point for
any discussion on Kashmir should be the pre-1953 status (Tehelka, 16
October 2010).

This ‘pre-1953 status’ is a shorthand for the status the State enjoyed before
Sheikh Abdullah’s dismissal from office and his arrest on 8–9 August 1953 and
long imprisonment thereafter.

As well as Article 370, certified by Nehru and Nanda to have been set at nought
as back as in 1963–4, the Delhi Agreement of 1952 is also a total wreck as, in
deed, is the Accord of 1975. A new Constitutional Settlement which enjoys
popular support and is negotiated freely with their leaders by representatives of
the Government of India is necessary. The mechanism for investing the
Settlement with legal force and efficacy is ironically, Article 370 itself.

A Memorandum submitted by the National Conference to the Prime Minister of

India, P.V. Narsimha Rao on 4 November 1995, establishes, with copious
references to Constitutional provisions and judicial pronouncements that ‘Article
370 (1) (d) is not and cannot just be a one-way stream.… There is no legal
impediment, as is evident from the pronouncements of the Supreme Court, in
reversing the dilution made to the autonomy of the state’ (Chapter 12, Doc. No.
1).

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Introduction

A final order can be made by the President of India under Article 370 to wipe out
all the patently unconstitutional orders made earlier, from 1954 to 1994, and
give the new Constitutional Settlement legal force under this Order. In the
unique historical circumstances genuine/popular support will make do for the
Constituent Assembly ratification. It must meet two tests, besides popular
acceptance. First it, must provide cast-iron guarantees against recurrence of the
abuse perpetrated in the teeth of Article 370. Its safeguards have proved of no
avail. This is best done by terminating the President’s power to make any further
orders (p.26) under Article 370. Its Clause (3) empowers the President to make
an order to ‘declare that this Article shall cease to be operative’. This will also
put an end to the anachronism of constitutional amendment by executive fiat
which President Rajendra Prasad trenchantly criticized as far back as on 6
September 1952 (Chapter 5, Doc. No. 6).

The present position is palpably absurd based as it is on a record of admitted

abuses stretching over five decades. There is another aspect. Article 253 of the
Constitution of India reads thus: ‘Notwithstanding anything in the foregoing
provisions of the Chapter, Parliament has power to make any law for the whole
or any part of the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made at any
international conference, association or other body’.

It has been applied to Jammu and Kashmir with this proviso: ‘Provided that after
the commencement of the Constitution (Application to Jammu and Kashmir)
Order 1954, no decision affecting the disposition of the State of Jammu and
Kashmir shall be made by the Government of India without the consent of the
Government of that State’.

Agreements on a plebiscite in the State were reduced to irrelevance decades

ago. Secession of the State has long ceased to be part of any realistic discussion
of the Kashmir problem. This Introduction and the documents in the volume are
confined to the internal aspect of the problem. As far as the external aspect is
concerned, it is well known that discussions between India and Pakistan since
2005 have centred on a Four-Point formula. Its elements are: reduction of the
Line of Control in the State to irrelevance; demilitarization of the State; self-
governance or self-rule in both parts of the State; and a joint management
mechanism whose members will be drawn from both sides.

Article 370, when revised as an agreed final provision, denuding the President,
and, therefore, the Central Government of the power to alter it, will fit the Four-
Points like a glove by guaranteeing self-rule.

Chapter 12, Doc. No. 5 is the writer’s tentative contribution to that effort. It is a
draft of Article 370 which guarantees an agreed quantum of self-rule.

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Introduction

It, however, omits the second and indispensable guarantee of autonomy, namely,
a Head of State elected by the State itself and not one (p.27) imposed upon it
by the Centre. The office of an elected Sardar-i-Riyasat, of Jammu and Kashmir,
established in 1952, was abolished in 1965 and replaced by that of the Governor
appointed by the Centre.

The record bears recalling. On 12 June 1952, Kashmir’s Constituent Assembly

accepted the recommendation of its Basic Principles Committee, headed by
Mirza Mohammad Afzal Beg, that ‘the office of the head of state shall be
elective’. On 20 July in New Delhi, the Sheikh had to accept a change that made
a mockery of the Assembly’s decision. It was agreed that ‘the head of state shall
be a person recognized by the President on the recommendation of the
legislature of the state’. Worse, he could be sacked any time, without cause, by
the Centre—‘he shall hold office during pleasure of the President’ (Chapter 4,
Doc. No. 6), that is, the Government of India.

Article 310 (22) of India’s Constitution defined ‘ruler’ inter alia as one ‘who for
the time being is recognized by the President as the ruler of the State’. It was
outrageous to apply a rule governing hereditary princes to a head of state
elected by its Assembly. Nehru explained the Delhi Agreement in Lok Sabha on
24 July: ‘They recommend and then it is for the President to recognize.’ He has
the veto (Chapter 4, Doc. No. 6). However, in a Note for Sheikh Abdullah dated
14 August 1952, Nehru said ‘In practice, the recommendation of the Constituent
Assembly or the Legislative Assembly will naturally he accepted by the
President’ (Chapter 5, Doc. No. 1, Para 5).

Kashmir’s Constituent Assembly amended the old Constitution to abolish

monarchy from 17 November 1952. On 9 August 1953, Sheikh Abdullah, co-
author of the Delhi Accord, was sacked as premier. Article 27 of the State’s
Constitution, enacted by the rump Assembly in his absence Delhi’s says: ‘The
Sardar-i-Riyasat shall be the person who for the time being is recognized by the
President.’ Only a proviso provided for his election. But Article 28 said that he
shall hold office ‘during the pleasure of the President’, that is, Government of
India. The Constitution 6th Amendment Act, 1965, of Kashmir provided for
appointment of the State’s Governor by the President. On 23 July 1975, by a
mere executive order under Article 370, the Constitution of India was amended
to bar the State Assembly from correcting the wrong and restoring the pre-1965
position. The Delhi Agreement was wrecked repeatedly.

(p.28) The integrity and independence of the office of head of State are crucial
to any scheme of autonomy. In 1937, the Congress insisted on assurances of
disavowal of the Governor’s special responsibilities before accepting office in the
Provinces granted autonomy by the Government of India Act, 1935. The
Autonomy Statute of South Tyrol provides for election of the Region’s President
and Vice-President from among its own members, with a member each of the

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Introduction

Italian and German language groups to serve rotationally in both posts. The
President of Italy cannot veto their elections. Another is the accord of 27 June
1921 between Sweden and Finland on autonomy for the Aaland Islands. The
Governor is appointed by agreement between the President of Finland and
Aaland’s legislature. If they differ, the legislature recommends a panel of five for
Finland’s President to choose from.

Obviously, as well as redrafting of Article 370, a review of the Constitution of

Jammu and Kashmir, drafted in abnormal circumstances, to say the least, will be
necessary. The amendments must be based on agreement between all the major
parties in Kashmir. They must meet Jammu’s concerns as well.

Under the regional formula of Punjab in 1956, two regional committees of the
Assembly were set up, comprising MLAs of the Punjabi-and Hindi-speaking
regions. Each enjoyed a virtual veto on fourteen specified topics dealing with
social and economic development.

In 1970, the Steering Committee of the Jammu and Kashmir State People’s
Convention, convened by Sheikh Abdullah drew up a scheme for ‘internal
constitutional set-up’ providing for devolution of power to the village level.

Given the political will, sincerity of purpose, and a spirit of compromise, it is not
difficult to retrieve from the wreckage of Article 370 a Constitutional Settlement
which satisfies the aspirations of the people of Jammu and Kashmir.

***

This book presents a collection of rare materials—most of which are not easily
accessible—letters, memoranda, white papers, proclamations, and amendments.
No stylistic or substantive change has therefore been made to the documents to
maintain authenticity.

Access brought to you by:

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