The Spirit Of Article 370 

In a confusing medley of orders, resolutions, and declarations, the President and Parliament of India recently ended the special constitutional status of Jammu & Kashmir. Article 370, under which virtually no part of the Indian Constitution could apply to J&K without the consent of its state government, was abrogated. Special provisions in the Constitution which applied only to the state, like Article 35A which restricted the rights of outsiders to own land there, were abolished. A law was passed which clears the way for the state of J&K to be carved up into two union territories. This was accompanied by an unprecedented clampdown on civil liberties in J&K – telephone lines were suspended, the Internet was disabled to prevent a social media fomented uprising, and political leaders were placed under house arrest. All this, done without the consent of J&K’s leaders, violates the spirit and essence of the Indian Constitution.

The Promise Of A Plebiscite

In October 1947, the biggest princely state in terms of its area, and the fourth most populous one, was at the heart of an international crisis. On Oct. 22, 1947, a large number of tribesmen from Pakistan had invaded J&K. On Oct. 26, Maharaja Hari Singh, who was said to be fond of “cooking, racing and building and demolishing houses”, signed an Instrument of Accession to join India, in which he stipulated that India would only have the power to legislate on three broad subjects in J&K, namely, defence, external affairs, and communications. This was not at all exceptional. The Instruments of Accession of all other princely states also initially limited the accession to these three subjects.

In other models of accession to India, princely states were either clubbed together into unions (e.g., Saurashtra) or merged into the provinces in which they were located (e.g., Kolhapur was merged into Bombay state).

However, eventually, all the other princely states accepted the Constitution of India and soon lost their identities in the collective whole. The reason J&K stood apart from the others was that it had a Hindu king with a majority-Muslim populace. The question in such cases was whether the ruler could join a dominion without the consent of his people. For instance, India’s case was that the Nawab of Junagadh, a predominantly Hindu princely state with a Muslim ruler, could not join Pakistan against the wishes of his people. Eventually, a referendum was held in Junagadh in which the people resoundingly voted to join India.

In several letters written thereafter, Prime Minister Nehru clung to the promise that once the invaders were repelled from J&K and normalcy was restored to the state, a plebiscite would be held there. For instance, in a cable to Prime Minister Clement Attlee on November 1, 1947, Nehru wrote: “We have stated also that we shall withdraw our troops as soon as order is established and leave people of Kashmir to decide their future. That future may be accession to either Dominion”. However, the Pakistani raiders never fully withdrew from Kashmir because, on January 1, 1948, the Government of India referred the Kashmir issue to the United Nations Security Council. The Security Council issued several resolutions thereafter which caused a stalemate.

The Origins Of Article 370

Over a year later, though the process of drafting the Constitution of India was nearly complete, the U.N. was still seized of the Kashmir matter. The Constitution could not be held in abeyance until the J&K question was resolved. Therefore, something temporary had to be put into the Constitution for that state. It was in these circumstances that Article 306A (eventually renumbered as Article 370) was introduced in the Constituent Assembly by Gopalaswami Ayyangar, a former Prime Minister of Kashmir who had served as India’s representative at the United Nations Security Council on the Kashmir issue. Ayyangar explained 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.” He reiterated that a plebiscite would be held in Kashmir “provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed.”

In essence, Article 370 said three things.

• Firstly, that India would not exceed the powers that had been given to it under the Instrument of Accession without the “concurrence” (i.e., consent) of the Government of J&K. If India wanted to legislate for J&K on matters of defence, external affairs or communications, on the other hand, it would only have to “consult” the state government.
• Secondly, India’s President could make the Indian Constitution apply to J&K with suitable modifications, provided, once again, that he had the “concurrence” of the state government.
• Thirdly, Article 370 itself could not be amended or repealed by India’s Parliament. Only the President could do so, as long as he had the approval of the Constituent Assembly of J&K.

This made J&K stand out like a sore thumb in India’s constitutional scheme. Sardar Vallabhbhai Patel, for instance, was alarmed that the fundamental rights and directive principles of India’s Constitution would not apply to J&K. “You can yourself realise the anomaly”, he wrote to Ayyangar, “of the State becoming part of India and at the same time not recognising any of these provisions.” However, the idea behind Article 370 always was that India could not enlarge its sphere of influence over J&K without the consent of its people, expressed through the government of the day.

In 1952, Nehru made a speech in Parliament in which he repeated that “it is the people of Kashmir who must decide” whether to remain in India, and that “it just does not matter what [the Indian Constitution] says, if the people of Kashmir do not want it, it will not go there.” “The alternative”, he added, “is compulsion and coercion”. In 1956, the Constituent Assembly of J&K enacted a Constitution which said that the state would be an integral part of India, but it said nothing about repealing or abrogating Article 370 of the Constitution.

The August 2019 Amendments

On December 19, 2018, the President of India issued a proclamation declaring President’s rule in J&K. Under the proclamation, the President assumed to himself “all the functions of the Government” of the state and declared that the powers of the state legislature would be exercised by Parliament. Three things happened in quick succession thereafter:

Firstly, on Aug. 5, 2019, the President of India issued an order, C.O. 272, which said that henceforth, any amendment of Article 370 was possible upon a recommendation of the “Legislative Assembly” instead of the “Constituent Assembly” of J&K. This was very clever – since President’s rule was imposed in J&K, India’s BJP-dominated Parliament was acting as the “Legislative Assembly” of J&K. Parliament could therefore ask the President to amend or repeal Article 370. Next, both Houses of Parliament issued a recommendation to the President to abrogate Article 370. Consequently, on Aug. 6, the President issued a declaration making Article 370 inoperative. Finally, on Aug. 9, Parliament enacted the Jammu and Kashmir Reorganisation Act, 2019, which took away the statehood of J&K altogether and bifurcated the state into two union territories: Jammu and Kashmir, and Ladakh, both of which will be centrally administered. In short, India’s President and Parliament fundamentally altered the constitutional status of Kashmir without the consent of her elected representatives.

This is because the underlying understanding between India and J&K since October 1947 has been that the Instrument of Accession was the basis of J&K’s accession to India and that no change would be made to it without the consent of her people. In the early years, Indian leaders had gone so far as to suggest that a plebiscite would be held wherein the people of Kashmir would be given the right to decide to even secede from the Union of India. Though a plebiscite is no longer feasible, the motive force of Article 370 was that no fundamental constitutional change would be brought about in J&K without the “concurrence” of her people through their elected representatives.

By a clever process of legal drafting, the Government of India has now radically altered the constitutional position of J&K without so much as consulting her elected representatives. For this reason, the President’s declaration repealing Article 370, which relies on the resolutions of both Houses of Parliament instead of the state legislature of J&K, violates the spirit of Article 370 of the Constitution, though perhaps not its letter.

Abhinav Chandrachud is an advocate at the Bombay High Court.

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