COMMENTARY

Article 370 of the Constitution

A Genesis
Jai Shankar Agarwala

A brief history of why Article 370

of the Constitution was framed
in a certain manner and the
importance of the text of the
Article from the viewpoint of the
people of Jammu and Kashmir.

Jai Shankar Agarwala (jaishankaruqeel@

gmail.com) is an advocate at the Supreme
Court of India.
Economic & Political Weekly

EPW

APRIL 18, 2015

he princely states comprised almost half of the Indian territories

in the subcontinent at the time of
the proclamation of 1858 by the British
colonial powers and their princes enjoyed full sovereignty in the internal
matters subject only to the paramountcy
of the British Crown. These territories
together were referred to as Indian
India in contrast to the rest of India,
which by now had come to be known as
British Indiathe territories directly
administered by the British Crown.
The princely state of Jammu and
Kashmir was one such state of the Indian
India ruled by the Dogra lineage of
kings under British paramountcy. The
history of this ruling family is chronicled by Kalhana in his well-known classicRajatarangini (12th century CE)
meaning the River of Kings written in
Sanskrit verse and widely credited as
the first book of history of the region.
Maharaja Hari Singh of this lineage was
the ruler of Jammu and Kashmir during the turning point of the states
history in 1947.
The Cabinet Mission of 1946 through
their memorandum articulated clearly
the policy of the new government towards the native princes on the withdrawal of British Rule from India. It affirmed that the rights surrendered by
the Indian states to the British Crown
would revert to the rulers of the states
when the new dominions of India and
Pakistan came into existence following
the withdrawal of the British from India. The Cabinet Mission, however, advised the native states to evolve their
relationship with the successor governments as the British would no longer be
in a position to extend to them any protection. Legally speaking, the princely
states of Indian India became fully independent with the lapse of British paramountcy on the coming into force of the
Indian Independence Act, 1947 passed

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by the British Parliament, creating two

dominions out of British India, namely,
India and Pakistan.
The native Indian states numbering
565 at that time, of which Jammu and
Kashmir was one, were now left with
three choices: (i) to remain completely
independent; (ii) to accede to India;
or (iii) to accede to Pakistan. The power
to make the choice was vested in the ruler
of the state concerned. Jammu and Kashmir state which bordered both India and
Pakistan and was ruled by Hari Singh, the
then Dogra king, vacillated in making a
prompt choice and did not sign the instrument of accession in favour of either
India or Pakistan on the date of transfer
of power by the British in August 1947.
Perhaps, he harboured an ambition of
keeping an independent existence, free
from both India and Pakistan which eventually proved to be a costly political blunder for him and his people. It is pertinent
to mention here that the state of Jammu
and Kashmir had plural demographic features: its Kashmir Valley was predominantly Muslim, Ladakh Buddhist, and its
Jammu region was predominantly Hindu, which fact might have contributed to
the rulers initial ambivalence in addition
to his personal ambition to rule an
independent sovereign state.
Peace in Kashmir was not to last long
after the withdrawal of the British. Barely
two months after independence, on 20
October 1947, a large number of armed
tribesmen invaded Kashmir from the side
of the border with Pakistan causing grave
devastation and carrying out killings,
rapes, loot and plunder in the Valley of
Kashmir. Unable to meet the situation
with his own forces, Hari Singh was now
left with a Hobsons choice. He addressed
a letter to Lord Mountbatten, the Governor General of India, seeking Indian help
to save the state from the raiders, and attached his signed Instrument of Accession to India for acceptance by the Indian
Government. The Governor General of
India signed his acceptance on the instrument on 27 October 1947. The execution
of the Instrument of Accession by the maharaja of Jammu and Kashmir and its due
acceptance by the Governor General of
India made the accession of Jammu and
Kashmir to India final, complete and
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legally unassailable. For, the power to accede to any successor dominion of British
India was vested in the ruler of the native
state concerned and none else. By this Instrument of Accession, three subjects, viz,
defence, external affairs and communications stood explicitly transferred to India,
and the rest retained by the ruler of the
state of Jammu and Kashmir to be governed by the Jammu and Kashmir Constitution Act 1939, then in force in the state.
In March 1948, Hari Singh made a
proclamation by which his council of
ministers were to convene a National
Assembly based on adult franchise to
work out a new constitution for Jammu
and Kashmir. On 20 June 1949, he issued
another proclamation conferring all his
royal powers, functions and prerogatives
as ruler of the state on Yuvraj Karan Singh
Bahadur to be exercised by him during
the absence of the maharaja who had by
then shifted to his Jammu residence.
During this period of time, the Constituent Assembly of India was engaged in the
gigantic task of drafting the largest constitution of the world, which was finally
adopted and enacted on 26 November
1949. It was put to effect on 26 January
1950 when India became a democratic republic in accordance with the Constitution
of India. Unlike the 560 and odd states
which took part in the deliberations and
decided to fully integrate as states of the
Union of India treaties, under the Constitution Jammu and Kashmir stood on a different footing from other states of the
Union. Article 370 was necessitated to
accommodate the then prevailing legal
status of the Jammu and Kashmir state in
the body of the Constitution of India.
While India was a democratic republic
as per the Constitution of India, something significant happened in the state of
Jammu and Kashmir soon thereafter.
Yuvraj Karan Singh, now vested with the
powers of the ruler by Hari Singh, issued
a proclamation convening a National
Constituent Assembly for Jammu and
Kashmir on the basis of adult suffrage for
drafting a constitution for the state. It
was also to decide the future of the question of accession with India. On 15 February 1954, the states Constituent Assembly ratified the states accession to India.
Section 3 of the states Constitution reads:
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the state of Jammu and Kashmir shall be

an integral part of India. Section 147 of
the states Constitution has made this article unamendable by a future legislative
assembly of the state. This completed the
process of the states legal integration
with India.
As already stated, the Instrument of Accession with India conferred powers on
the Union of India in matters of only external affairs, defence and communications.
Internal administration was retained by
the state as is evident from the Clause 8 of
the instrument. The instrument was a
standard text as engaged into by other native states as well. But while other native
states voluntarily lost their independence
in internal administration by signing supplementary treaties with India and by accepting in totality the Constitution of India, it was not so with Jammu and Kashmir. This special legal status of the state of
Jammu and Kashmir was upheld by the
Supreme Court in Premnath Kaul vs State
of Jammu and Kashmir (A 1959 SC 749)
and was again reaffirmed by the Supreme
Court in Rehman Shagoo vs State of Jammu
and Kashmir (A 1960 SC 1).
Unlike other Indian states, Jammu and
Kashmir was not represented in the Constituent Assembly engaged in the drafting
of the Constitution of India. It was only in
June 1949 that Karan Singh, advised by
his council of ministers, nominated four
representatives to the Constituent Assembly who also made it clear that the relationship between India and the state of
Jammu and Kashmir was to be guided by
the Instrument of Accesssion only. It
therefore became necessary to accommodate Kashmir in the Constitution of
India by providing a special provision.
While moving Article 306A (now Article
370) before the Constituent Assembly,
N Gopalaswamy Ayyangar (Member from
Madras: General) addressed the House:
Sir, this matter, the matter of this particular
motion, relates to the Jammu and Kashmir
State. The House is fully aware of the fact
that that state has acceded to the Dominion
of India. The history of the accession is also
well known. The accession took place on the
26th October 1947. Since then, the state has
had a chequered history. Conditions are not
yet normal in the State. The meaning of the
accession is that at present that state is a unit
of a federal state namely, the Dominion of
India. This Dominion is getting transformed

into a Republic, which will be inaugurated

on the 26th January 1950. The Jammu and
Kashmir State, therefore, has to become a
unit of the new Republic of India.
As the House is aware, accession to the Dominion always took place by means of an instrument which had to be signed by the Ruler
of the State and which had to be accepted
by the Governor General of India. That has
taken place in this case. As the House is
also aware, Instruments of Accession 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 the purpose of becoming units of the Republic, but they are mentioned in the constitution itself; and, in the
case practically all states other than the State
of Jammu and Kashmir, their constitutions
also have been embodied in the constitution
for the whole of India. All those other states
have agreed to integrate themselves in that
way and accept the constitution provided.

When questioned by Maulana Hasrat

Mohani as to why this discrimination in
the case of Jammu and Kashmir, Ayyangar replied:
... 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
would be given to the people of the State
to decide for themselves whether they will
remain with the Republic or wish to go out
of it. We are also committed to ascertaining
this will of the people by means of a plebiscite provided that peaceful and normal
conditions are restored and the impartiality
of the plebiscite could be guaranteed. We
have also agreed that the will of the people, through the instrument of constituent
assembly, will determine the constitution
of the state as well as the sphere of Union
jurisdiction over the State...... Till a constituent assembly comes into being, only an interim arrangement is possible and not an arrangement that can at once be brought into
line with the arrangement which at once
be brought into line with the arrangement
that exists in the case of other States....it is
an inevitable conclusion that, at the present
moment, we could establish only an interim
system. Article 306A is an attempt to establish such a system.

Further on the effect of this Article

he said:

APRIL 18, 2015

The effect of this Article is that the Jammu

and Kashmir State which is now a part of India will continue to be a part of India, will
be a unit of the future Federal Republic of
India and the Union Legislature will get jurisdiction to enact laws on matters specified
either in the Instrument of Accession or by
later addition with the concurrence of the
Government of the State. And steps have to
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COMMENTARY
be taken for the purpose of convening a constituent Assembly in due course which will
go into the matters I have already referred to.
When it has come to a decision on the different matters it will make a recommendation to
the President who will either abrogate article
306A or direct that it shall apply with such
modifications and exceptions as the constituent assembly may recommend. That, sir, is
briefly a description of the effect of this article, and I hope the House will carry it.

The Supreme Court in Prem Nath Kaul

vs State of J&K (supra) further opined in
para 38 of the judgment while answering the question whether Article 370(1)
affected the plenary powers of the maharaja in the matter of the governance of
the state:
The effect of the application of the present
article has to be judged in the light of its objects and its terms considered in the context
of the special features of the constitutional
relationship between the state and India. The
constitution-makers were obviously anxious
that the said relationship should be finally
determined by the Constituent Assembly of
the state itself; that is the main basis for, and
purport of, the temporary provisions made by
present Article; and so the effect of its provisions must be confined to its subject-matter.

It is now part of undisputed history

that the Constituent Assembly of Jammu
and Kashmir was duly convened and
provided a constitution for itself while
declaring the state as integral part of
India. But it has maintained its distinct
status different from other Indian states
inasmuch as it has reserved to itself all
subjects relating to internal administration of the state transferring only the defence, external affairs and communications as per the Instrument of Accession
and no more.
Now, let us take a look at the text of
Article 370 of the Constitution of India:
370. Temporary provisions with respect
to the State of Jammu and Kashmir.
(1) Notwithstanding anything in this
Constitution,-(a) the provisions of article 238 shall not
apply in relation to the State of Jammu and
Kashmir;
(b) the power of Parliament to make laws for
the said State shall be limited to
(i) those matters in the Union List and the
Concurrent List which, in consultation with
the Government of the State, are declared by
the President to correspond to matters specified in the Instrument of Accession governing
the accession of the State to the Dominion of
India as the matters with respect to which
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APRIL 18, 2015

the Dominion Legislature may make laws for

that State; 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.
ExplanationFor the purposes of this article, the Government of the State means the
person for the time being recognised by the
President as the Maharaja of Jammu and
Kashmir acting on the advice of the Council
of Ministers for the time being in office under the Maharajas proclamation dated the
fifth day of March, 1948;
(c) the provisions of Article 1 and of this Article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State
subject to such exceptions and modifications
as the President may by order specify:
Provided that no such order which relates
to the matters specified in the Instrument
of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued
except in consultation with the Government
of the State:
Provided further that no such order which
relates to matters other than those referred
to in the last preceding proviso shall be issued except with the concurrence of that
Government.
(2) If the concurrence of the Government of
the State referred to in paragraph (ii) of subclause (b) of clause (i) or in the second proviso to sub-clause (d) of that clause 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.
(3) Notwithstanding anything in the foregoing provisions of this article, the President
may, by public notification declare that this
article shall cease to be operative or shall
be operative only with such exceptions and
modifications and from such date as he may
specify:
Provided that the recommendation of the
Constituent Assembly of the State referred
to in clause (2) shall be necessary before the
President issues such a notification.

A plain reading of Article 370 makes

it clear that the relationship of Jammu
and Kashmir with the Union of India is
governed by this article. The other article that applies to Jammu and Kashmir
is Article 1 of the Constitution of India.
There remains no scope for doubt on the
question of the state being integral part
of the territory of India. It should be noted that there have been a number of
presidential notifications under this Article
since 1950 making other provisions of
the Constitution of India applicable to

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Jammu and Kashmir also without any

legal impediment.
But the question of abrogation of this
Article or of even limiting of its scope is
not permitted under proviso Article
370(3) except upon the recommendations of the Constituent Assembly of the
State which shall be required to be convened for the purpose.
Objectively viewed, this is not a legal
problem emanating from Article 370 of
the Constitution of India as erroneously
perceived by some corners. The problem is
essentially a political one requiring a political solution with due regard to the wishes
and aspirations of the people of the state
and its regions, including those belonging
to religious and ethnic minorities. Given
the demographic profile of the state no option can be better than the secular option
as already opted by the state.
Jammu and Kashmir, as a state, has a
wounded psyche. A part of Kashmir,
almost one-third of its territory, is under
occupation of Pakistan who projects it as
Azad Kashmirtermed by India as
Pakistan Occupied Kashmir (POK). It
should be kept in mind that the people
living in the POK are no different than
the people living on the Indian side and
the Line of Control has not and cannot
terminate the bond of relationships between the people on the two sides of the
artificial line.
On the eastern side of the state, a part
of Ladakh, viz, Aksai Chin area, still remains a disputed territory with China.
The Indian Army in Jammu and Kashmir is vested with special powers under
the Armed Forces (Special Powers) Act
which, it must be admitted, is not a desirable state from the viewpoint of the
people of the Valley, even without going
into the question of the doctrine of necessity perceived from New Delhi.
There has been too much of bloodshed already in Valley inhabited by
peace-loving people who desire nothing but peace and progress. War being
no longer an option, only a measure of
diplomatic initiatives and strong political goodwill are needed on the part of
India and her neighbouring countries
to put out the fire on the Blazing
Chinar in order to bring about lasting
peace to the Valley.
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