Article 370: The Legislative Bagatelle Or Benjamin Buttoning Of Kashmir

Kashmir, like the other 564 princely states, was left to her fate by the departing Raj. Its Prime Minister Mehr Chand Mahajan, not a known Nehru fan, in fact, advised his Ruler to play both India and Pakistan, and so Kashmir entered into a standstill agreement with both of Midnight’s Children. The truce was short-lived, the tribals or Qawallis were being pushed in by Pakistan from the Tribal Frontier. The marauding troops did not endear themselves, exactly, as they left behind a trail of death, rape, and plunder. With the raiders kilometers away from Srinagar, the Ruler was compelled to capitulate and accept the Indian precondition for assistance: Accession to India. Like all Indian Rulers, Kashmir gave up only Defence, Foreign Affairs and Communications. The Indian planes soon flew in to secure the airport and the war that followed is all too well-known. Nehru moved the United Nations. Instead of claiming aggression by Pakistan and asserting the right to self-defence (Artice 51, UN Charter), India invoked the UN’s dispute resolution machinery (Article 33, UN Charter).

Language Drafted At A Time Of Flux

When the guns were silenced, and a cease-fire brokered on Jan. 1,1949, Pakistan was yet to be evicted from one-third part of the state. Pakistan and India agreed to a plebiscite. As per the UN Resolution, Pakistan was to vacate its occupied part first. She never did that. The plebiscite was junked in the bin of history. Given that the most popular leader of Kashmir, Sheikh Abdullah was a Nehru-phile and pro-accession, India subsequently has taken the stand that by participating in the democratic process, the people of Kashmir have already exercised that ‘right of self-determination’. The constitutional history of Kashmir thereafter closely mirrored the love-hate relationship of two families-Nehru-Gandhis and the Abdullahs.

In fact, in May 1950, months after the Indian Constitution had celebrated its first Republic Day, the UN Designated Mediator Sir Owen Dixon arrived in the sub-continent to work out the terms of the plebiscite. The subsequent peace conference between India and Pakistan in July 1950 proved Dixon a failure. With plebiscite making no headway, between September and October 1951, elections were held in Indian held Kashmir to set up a ‘Constituent Assembly’ much to the protestations of Pakistan. It is this future Constituent Assembly which finds a reference in Article 370.

The key features of Article 370 were:

1. Kashmir was to get a total by-pass. It would get its own Constitution to be framed by its own Constituent Assembly.
2. The Indian Parliament, even in respect of Union and Concurrent List, could only make laws in those matters agreed to by the State Government.
3. Provisions of the Constitution of India would apply to the State subject to such “exceptions and modifications” the President may order. If it impacted on Accession matters, the Government of the State should be consulted. [370(1)(d)]
4. If the concurrence was given before the Constituent Assembly was convened, it was to be placed before the Constituent Assembly.

The President also could “by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications” provided the recommendation of the Constituent Assembly was obtained “before” such notification was issued. [370(3)]

While this Article has been used over the last 70 years to progressively bit by bit chip off the autonomy of Kashmir, it was very apparent that India’s Constituent Assembly had made this “temporary” provision as the legal status of Kashmir was being shaped either through the UN mandate for plebiscite or through the Constituent Assembly of Jammu & Kashmir whose legitimacy was questioned by Pakistan.

The life of the Constituent Assembly, which delivered its final product in the form of the Constitution of Jammu and Kashmir on Sep. 17, 1956, also witnessed turbulence of an unimaginable level.

• At one level was the fight within Kashmir – the Ruler and the Assembly. The Assembly finally neutered the Ruler, renamed the Maharaja Sadar-i-Riyasat and made the elected government supreme.
• At another level was the relationship with the Indian State. In July 1952, the Nehru-Abdullah Accord paved the way for the understanding that Kashmir was to retain maximum autonomy within the Indian State. One of the key issues was the right of the State to define who would be considered its ”permanent residents”.

The link with autonomy and preserving its distinct character was obvious. It was pursuant to this Accord that Article 35A was introduced through the route of Article 370(1)(d) to the Constitution of India as applied to Kashmir. The Constitution of Jammu & Kashmir in its final form, while accepting that accession to India was final and irrevocable, protected its right to define residents and what laws would be applicable.

‘Clever’ Legislating

The Presidential Order of Aug. 5, 2019, now tries to use Article 370 to kill Article 370. It extends all provisions of the Constitution of India to Jammu & Kashmir. Thus, by implication, it has buried the Constitution of Jammu & Kashmir.

Home Minister Shah cleverly tries to get around this obstacle by invoking Article 370(1)(d) in the notification substituting “Constituent Assembly” in Article 370(3) through the route of amendment of Article 367 to define Constituent Assembly in Article 370(3) to mean the assembly of Jammu and Kashmir, and conscious that during Governor’s Rule this power would be with the Governor, and thereafter during President’s Rule, with Parliament. Brilliant as this legislative bagatelle (remember the game where one ball hits another which in turn hits the target ball) may be, this clearly could only be done through a Constitutional Amendment of Article 370(3) itself.

A Shadow Of A State

The Reorganisation Bill carving out two Union Territories, of Jammu & Kashmir with a Legislature and Ladakh without, also is a piece of genius. Section 13 states that Article 239A of the Constitution of India, which sets out the constitutional architecture for Puducherry, shall also apply to the Union Territory of Jammu & Kashmir. A fine reading of this Bill which was passed in less than eight hours by the Rajya Sabha will reveal, that Shah’s Bill has turned autonomy on its head.

• The truncated Union Territory of Kashmir now in Section 32 loses the power over Public Order and Police.
• Also, like in all union territories, Parliament now can make law on any matter for Jammu & Kashmir. Also, the Jammu & Kashmir government cannot introduce any Bill impacting the imposition of any tax, financial obligations, receipt or expenditure out of the Consolidated Fund without the prior permission of the Lieutenant Governor. (Section 36)

Wiser after the Delhi-Centre tiff, Section 53 clearly reserves the All India Services and Anti Corruption Bureau for the Lieutenant Governor to act in his discretion. Also, the Lieutenant Governor is given the final say in deciding whether any matter falls within the ambit of his own discretion.

From the “greater autonomy” paradigm in one fell sweep, the nation’s favourite magician duo have Benjamin Buttoned Kashmir in a manner reminiscent of demonetisation. From the development of Ladakh, to reservations from Schedule Castes, all kinds of justifications are flying thick and fast. In this moment of national glee let it not be forgotten that the Kashmiri is locked in, her communications cut off, her representatives arrested, her police protection withdrawn.

Sanjoy Ghose is an advocate practicing in Delhi.

The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.