The central government claimed in the Supreme Court recently that things were better in Kashmir after Aug 5, 2019, when Article 370 (of the Constitution) which conferred a special status on the state in the Indian Union, was made inoperative. The top court though said it would not examine these claims but only stick to examining the legal issues involved in the case. What are these legal issues?
- What’s the history behind J-K?
Ans: The princely state of Jammu and Kashmir came into existence on March 16, 1846, when the treaty of Amritsar was signed between the East India Company and Dogra ruler Raja Gulab Singh. Gulab Singh purchased Kashmir for Rs 75 lakh. Kashmir remained with Maharaja Ranjit Singh till his death but after his death the Sikhs were defeated in a war and had to surrender Kashmir to the British.
- What was the Instrument of Accession?
Ans: When India was divided into India and Pakistan on religious lines, the princely states were given the option of remaining independent or joining either India or Pakistan. Many joined. Others fell in line. But Hari Singh, the Hindu King of Muslim-majority Kashmir, remained ambivalent till an attack from Pakistan forced his hand. He then sought New Delhi’s help and signed the instrument of accession, a legal document, specifying the terms of Kashmir becoming part of the Indian dominion. The Instrument of Accession was signed between Maharaja Hari Singh, with the then Governor General of India Lord Mountbatten, on Oct 26, 1947, declaring that Kashmir was acceding to India.
- What were the terms of the Instrument of Accession?
Ans: As per the instrument of Accession the central government could only legislate on three key matters, defence, external affairs and communications. It could also legislate on certain other ancillary subjects specified in the instrument. The ruler would retain control over all other subjects.
- What happened after the Accession?
Ans: After the accession, the maharaja of Kashmir ceded powers to a popular government headed by Sheikh Abdullah. Elections for a Constituent Assembly were held in 1951. Abdullah’s National Conference won all 75 seats. The Assembly sat for 56 days over a 5-year period and adopted the JK Constitution which came into force on Jan 26, 1957. The JK Constitution declared that the “state of Jammu and Kashmir is and shall be an integral part of the Union of India.”
- How did Article 370 come into existence?
Ans: Article 370 included in the Constitution, the specific terms under which Kashmir agreed to accede to India. These were worked out between Oct 1947 and Nov 26, 1949, when the Constituent Assembly was drafting the Constitution of India. Initially it was introduced as Article 306A but later became Article 370. Article 370 recognised JK as a state within India. It granted the state a special status within the Indian union. As per the article, the Union legislature could enact laws on matters specified either in the Instrument of Accession or added later with the concurrence of the state government.
- What does Article 370 say?
Ans: Under Article 370 read with the Constitution (Application to Jammu and Kashmir) Order 1954, the President can decide which provisions of the Indian Constitution can be applied to JK with or without modification. But this has to be done in consultation or concurrence with the state government.
i) Article 1 of the Constitution, which defines the territories of India, and Article 370 apply to ipso facto to Kashmir.
ii) All other articles may be extended to Kashmir, by an order to be issued by the president under Article 370, only in “consultation” with the state government if it pertains to matters regarding Parliament’s legislative power, and with the “concurrence” of the state government if it pertains to other matters.
- What was the status of Article 370 in the Constitution? What has the Supreme Court said it?
Ans: Article 370 was included in the chapter relating to temporary, transitional and special provisions of the Constitution. However, the Supreme Court time and again held that it was not a temporary provision. In 2018, the court said that Article 370 had acquired permanent status through long years of existence, making its abrogation virtually impossible. The court then drew the government’s attention to a 2017 judgment in the State Bank of India vs Santosh Gupta case to state that the provision had acquired permanent space in the Constitution and it could no longer be abrogated. Since the Constituent Assembly ceased to exist, the President would not be able to fulfil the requirement of getting its recommendation for its abrogation.
- What were the consequences of Article 370?
Ans: All other princely states were fully integrated into the Indian state. But JK remained the only state of India which had a constitution of its own, its own flag and even a separate penal code.
- What is the Delhi agreement?
Ans: After the Constituent Assembly arrived at its key decisions, the representatives of the state and the union met to discuss their implications. In July 1952, an agreement was signed between Nehru, India’s first PM, and Sheikh Abdullah, the prime minister of JK. It was known as the Delhi agreement.
As per the agreement:
i) The Indian government that while the residuary powers of legislature vested in the Centre in respect of all states, in case of JK it would vest in the state.
ii) Persons domiciled in JK shall be regarded as citizens of India, but the state legislature can make laws to confer special rights and privileges on the state’s subjects.
iii) The state can have its own flag in addition to the Union flag.
iv) The Governor, will be elected by the state legislature, instead of being nominated by the Union government and the President of India.
v) Fundamental rights of the India Constitution were not made applicable to the state in view of plans by Sheikh Abdullah to implement a land reforms programme.
vi) The Supreme Court was to have only appellate jurisdiction over the state.
vii) Article 356, dealing with suspension of the state Constitution, and Article 360, dealing with financial emergency, will not apply to the state.
viii) Article 352 was modified with regard to Kashmir by the adding the words, “but in regard to internal disturbance at the request or with the concurrence of the Government of the State”.
- What is Article 35A?
Ans: The Delhi agreement was codified by the President, who issued the Constitution (Application to Jammu and Kashmir) Order, 1954, under Article 370(1) of the Constitution, adding Article 35A to the Constitution. This allows the state of JK to define permanent residents and attach certain “special rights and privileges” to such residency, including the power to restrict the right to settle in the state and acquire immovable property. The rights and privileges of permanent residents are laid down in part III of Jammu and Kashmir’s 1956 Constitution.
35A. Saving of laws with respect to permanent residents and their rights.— Notwithstanding anything contained in this Constitution, no existing law in force in the state of JK, and no law hereafter enacted by the legislature of the state,— (a) defining the classes of persons who are, or shall be, permanent residents of the state of JK; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects— (i) employment under the state government; (ii) acquisition of immovable property in the state; (iii) settlement in the state; or (iv) right to scholarships and such other forms of aid as the state government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision.
- How was Article 370 to be abrogated?
Ans: A Constituent Assembly was to be convened and was to make a recommendation to the President on either abrogating Article 370 or directing that it shall apply with such modifications and exceptions to the state as it may recommend. So, the President could amend or repeal Article 370 through a public notification declaring that this article “shall cease to be operative or shall be operative only with such exceptions and modifications”, provided that “the recommendation of the Constituent Assembly of the State” is given before the president issues such a notification.
- What did the government do on Aug 5, 2019?
Ans: Brought in the JK Reorganisation Act, 2019, which removed Article 370 of the Constitution of India and made Jammu & Kashmir a Union Territory with legislature (i.e., with a CM and a Lt. Governor) and Ladakh a UT without a legislature. It changed definitions of some general clauses in the Constitution to say any reference to state government shall be replaced by the Governor and Constituent Assembly by the Legislative Assembly. Since the government revoked the1954 presidential order under which Article 35A was introduced, that provision also goes.
- What is the talk about plebiscite regarding JK?
Ans: All the Muslim and Hindu majority states were given an option at the time of Partition to choose between India and Pakistan through referendums. When maharaja Hari Singh prevaricated, there was talk of holding a plebiscite to decide the issue. But after an attack from Pakistan, Singh rushed to Delhi and signed the Instrument of Accession. A ceasefire was brokered eventually by the UN between India and Pakistan in July 1949. Pakistan did not though move back to its original position from the areas of Kashmir it had overrun. Over the years, this ceasefire line or the Line of Actual Control has become the virtual International Border between India and Pakistan. Though the UN spoke of settling the issue after a plebiscite, India now says it cannot be done till Pakistan vacates the areas under its occupation. These areas include so-called Azad Kashmir and Gilgit-Baltistan. India refers to these areas as Pak-occupied Kashmir. The JK Constituent Assembly had earmarked 24 seats for POK. The recent changes in the law have not touched this. These 24 seats will remain vacant and shall not be taken into account for reckoning total membership of the Assembly.
- What are the legal issues involved in the case?
i) Can consultation, concurrence of the state government said to be that of the Governor when the state was under his rule?
ii) Since, the Constituent Assembly ceased to exist long ago can the Legislative Assembly stand in for it? In that case, why was the exercise of consulting the Assembly not done? Thus, is it incorrect in law?
iii) What should have been the mode of abrogation? Could the Article have been abrogated in absence of a Constituent Assembly? If so, how?
iv) Should the government have exercised Article 368 of the Constitution instead of using an indirect route. Instead, it changed meanings of general clauses in Article 367 to change and do away with Article 370.
The President added Article 367(4) by an order passed under 370(1)(d) to say that any
i) Any reference to state government would mean a reference to the state Governor
ii) Any reference to Constituent Assembly under Article 370(3) shall mean a reference to the JK Legislative Assembly.
