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The Process followed during the Abrogation of Art. 370 is analysed in this comprehensive study.
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Submitted By: DEEPAK TONGLI Intern Associate (Law) Law Commission of Karnataka Room No. 302A, Vidhanasoudha Bengaluru-560 001
PREFACE
TABLE OF CASES
KASHMIR , if literally translated, means land desiccated from water:"ka" (the water) and shimeera (to desiccate). Tradition says that Kashmir was originally a lake that was drained by the great saint of ancient India Kashyap. It was included in the empire of Ashoka Maurya who is credited with the foundation of the city of Srinagar around the year 250 BC. Kashmir , region of the northwestern Indian subcontinent. It is bounded by the Uygur Autonomous Region of Xinjiang to the northeast and the Tibet Autonomous Region to the east (both parts of China), by the Indian states of Himachal Pradesh and Punjab to the south, by Pakistan to the west, and by Afghanistan to the northwest. The region, with a total area of some 85,800 square miles (222,200 square km), has been the subject of dispute between India and Pakistan since the partition of the Indian subcontinent in 1947.^1 The northern and western portions are administered by Pakistan and comprise three areas: Azad Kashmir, Gilgit, and Baltistan, the last two being part of a territory called the Northern Areas. Administered by India are the southern and southeastern portions, which constitute the state of Jammu and Kashmir but are slated to be split into two union territories. The Indian- and Pakistani-administered portions are divided by a “line of control” agreed to in 1972, although neither country recognizes it as an international boundary. In addition, China became active in the eastern area of Kashmir in the 1950s and has controlled the northeastern part of Ladakh (the easternmost portion of the region) since 1962. (^1) Encyclopedia Britannica Inc., “The Kashmir Region” https://www.britannica.com/place/Kashmir-region-Indian- subcontinent/media/1/312908/54885 visited on 21.08.2019 at 11:31AM
In 1757 Kashmir came under the control of Ahmed Shah Durrani, the Afghan who invaded India many times. In 1819 Kashmir was annexed by Ranjit Singh and made a part of his Sikh empire. The two Anglo-Sikh wars fought between the Sikhs and Ranjit Singh resulted in the complete extinction of the Sikh sovereignty in Kashmir. The British gave away Kashmir to Ghulab Singh for the sum of 75 lakhs of rupees under the Treaty of Amritsar. This entitled Ghulab Singh to have his complete sway over the dominion. He extended his territory by annexing Ladakh. Ghulab Singh died in 1857 and was replaced by Rambir Singh (1857-1885). Two other Marajahs, Partab Singh (1885-1925) and Hari Singh ruled in succession. Maharaja Sir Hari Singh ascended the throne in 1925. He continued to govern the state till 1950. In 1932 Kashmir's first political party – All Jammu & Kashmir Muslim Conference was formed by Sheik Abdullah The party was later renamed the National Conference in 1939 and continues to be a major political party in Kashmir even today.^2
India attained Independence on the 15th^ of August 1947. After Independence, the ruler of the princely state of Kashmir, Maharaja Hari Singh , refused to accede to either India or Pakistan. When Pakistan invaded Kashmir in the following year, the ruler of Kashmir sought help from the Indian government and agreed to place Kashmir under the dominion of India. As a result India sent its troops to Kashmir to help the Maharaja. A UN cease-fire in 1949 saw the end of fighting and created the first Line-of-Control. 3 (^2) The History of Kashmir, https://www.jktdc.co.in/History-of-Kashmir.html visited on 21.08.2019 at 12.30Pm (^3) The Hindustan Times Web Edition dated 27 Oct 1947
In 1956 Kashmir was, in effect, integrated into the Indian Union under a new Constitution. However, Azad Kashmir, the area which Pakistan gained during its campaign in 1948, continues to remain with Pakistan. The volatile situation was aggravated by the Chinese occupation of the Aksai Chin region, in Ladakh, in 1959. The situation came to head in 1963 when a Sino-Pak agreement defined the Chinese border with Pakistani Kashmir and ceded Indian-claimed territory to China. India and Pakistan fought over Kashmir again in 1965. A UN cease-fire took effect in September,
As of 2002, 29 amendments were made to the Constitution. The Constitution, as of 2002, had 158 articles divided into 13 parts and 7 schedules. The skeletal outlook is as under; PARTS CHAPTER ARTICLES I Preliminary 1 - 2 II The State Government 3 - 5 III Permanent Residents 6 - 10 IV Directive Principles of State Policy 11 - 25 V The Executive The Governor (26-34) The Council of Ministers (35-41) The Advocate General (42) Conduct of Government Business (43-45)
The State Legislature Composition of the State Legislature (46-50) General Provisions (51-56) Officers of the State Legislature (57-63) Conduct of Business (64-67) Disqualification of Members (68-71) Powers, Privileges and Immunities of the State Legislature and Its members (72-73) Legislative Procedure (74-78) Procedure In Financial Matters (79-84) Procedure Generally (85-90) Legislative power of the Governor (91) Breakdown of Constitutional Machinery (92)
The High Court Subordinate Courts (109-113)
VIII Finance, Property & Contracts 114 - 123 IX The Public Services The Public Service Commission (128-137)
X Elections 138 - 142 XI Miscellaneous Provisions 143 - 146 XII Amendment of the Constitution 147 XIII Transmonal Issues 153 - 158 Articles 148 to 152 have been omitted in Part XIII
Although India has a unitary citizenship, Constitution of Jammu & Kashmir defines a concept of Permanent Residency, in Part III. Some agencies often spread lies on the concept of Permanent Residency and falsely claim that the people of J&K enjoy dual citizenship. However, the stand of Supreme Court is very clear and to put in its words as “We may also add that permanent residents of Jammu & Kashmir are citizens of India, and there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world.” – Supreme Court Jammu and Kashmir has “no vestige” of sovereignty outside the Indian Constitution, and citizens of the State are “first and foremost” citizens of India, the Supreme Court has held.^6 “The State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India,” a Bench of Justices Kurian Joseph and R.F. Nariman said.^7 (^6) State Bank of India Vs. Santosh Gupta & ors. SC Civil Appeal No. 12237-12238 of 2016 (^7) Ibid
Under Part XXI of the Constitution of India, which deals with " Temporary, Transitional and Special provisions ", the State of Jammu and Kashmir was accorded special status under Article
Article 3 in part 2 of the Jammu and Kashmir constitution stated "Relationship of the State with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the Union of India."^10 Article 5 of the part 2 was about extent of "Executive" and "Legislative" powers of the state and stated that "Jammu and Kashmir Legislative Assembly has executive and legislative power of all matters except those with respect to which Parliament of India has power to make laws for the State under the provisions of the Constitution of India".^11 Article 147 of Part 12 was about amendment of the Jammu and Kashmir Constitution which stated that, "No Bill shall be introduced or moved in State Legislative Assembly to amend or change above mentioned articles 3 and 5."^12 (^9) Central Enactments applicable to State of Jammu & Kashmir as on 10 Feb 2009 Retrieved on 17.08. (^10) Constitution of J&K http://jklegislativeassembly.nic.in/Costitution_of_J&K.pdf Ref. Pg- 03 retrieved on 17.08.2019 at 07.30PM (^11) Ibid (^12) Art. 147 of the Constitution of J&K http://jklegislativeassembly.nic.in/Costitution_of_J&K.pdf Ref. Pg- 67 retrieved on 17.08.2019 at 09.28PM
The Kashmir conflict is a territorial conflict primarily between India and Pakistan over the Kashmir region. The conflict started after the partition of India in 1947 as a dispute over the former princely state of Jammu and Kashmir and escalated into three wars between India and Pakistan and several other armed skirmishes. China has also been involved in the conflict in a third-party role.^13 Both India and Pakistan claim the entirety of the former princely state of Jammu and Kashmir. India controls approximately 55% of the land area of the region and 70% of its population; Pakistan controls approximately 30% of the land, while China controls the remaining 15%. India administers Jammu, the Kashmir Valley, Ladakh, and the Siachen Glacier. Pakistan administers Azad Kashmir and Gilgit-Baltistan. China administers the mostly uninhabited Shaksgam Valley, and the Aksai Chin region. Effects of India-Pakistan Partition: The Independence India celebration didn’t last long as there was a political turmoil and disturbances between the newly born two countries. The British Paramountcy over the 562 Indian princely states ended. According to the Indian Independence Act 1947, "the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States".^14 States were thereafter left to choose whether to join India or Pakistan or to remain independent. Jammu and Kashmir, the largest of the princely states, had a predominantly Muslim population ruled by the Hindu Maharaja Hari Singh. He decided to stay independent because he expected that the State's Muslims would be unhappy with accession to India, and the Hindus and Sikhs would become vulnerable if he joined Pakistan. On 11 August, the Maharaja dismissed his prime minister Ram Chandra Kak, who had advocated independence. Observers and scholars interpret this action as a tilt towards accession to India. Pakistanis decided to preempt this possibility by wresting Kashmir by force if necessary. (^13) Yahuda, Michael (2 June 2002). "China and the Kashmir crisis". BBC. Retrieved 16.08.2019 at 3.29PM (^14) "Indian Independence Act 1947". UK Legislation. The National Archives. Retrieved 14 September 2015.
PLEBICITE- Stands taken by Jinnah, Nehru & Mountbatten According to Jinnah, India acquired the accession through "fraud and violence."^16 A plebiscite was unnecessary and states should accede according to their majority population. He was willing to urge Junagadh to accede to India in return for Kashmir. For a plebiscite, Jinnah demanded simultaneous troop withdrawal for he felt that 'the average Muslim would never have the courage to vote for Pakistan' in the presence of Indian troops and with Sheikh Abdullah in power. When Mountbatten countered that the plebiscite could be conducted by the United Nations, Jinnah, hoping that the invasion would succeed and Pakistan might lose a plebiscite, again rejected the proposal, stating that the Governors Generals should conduct it instead. UN Reference: Prime Ministers Nehru and Liaquat Ali Khan met again in December, when Nehru informed Khan of India's intention to refer the dispute to the United Nations under article 35 of the UN Charter, which allows the member states to bring to the Security Council attention situations 'likely to endanger the maintenance of international peace'. Nehru and other Indian leaders were afraid since 1947 that the "temporary" accession to India might act as an irritant to the bulk of the Muslims of Kashmir. Secretary in Patel's Ministry of States, V.P. Menon, admitted in an interview in 1964 that India had been absolutely dishonest on the issue of plebiscite.^17 A.G. Noorani blames many Indian and Pakistani leaders for the misery of Kashmiri people but says that Nehru was the main culprit.^18 Nehru’s Petition in UN on Kashmir Issue and its Validity: Prime Minister Nehru had appealed to the UN Security Council through the petition filed in January 1948 following the outbreak of the first war between India and Pakistan. On the basis of this petition, the Security Council had established the UN Commission for India and Pakistan to mediate between the two countries. (^16) Schofield, “Kashmir in conflict”, Lodon: Taurus & Co., 2003, Pg- 61 (^17) Noorani, “Plebiscite in Kashmir-Still born or dead?”, https://www.greaterkashmir.com/news/opinion/plebiscite- in-kashmir-stillborn-or-killed-part-1/ visited on 21.08.2019 at 5.32PM (^18) Noorani, “The Kashmir Dispute: 1947-2012”, https://www.dawn.com/news/1112700/cover-story-the-kashmir- dispute- 1947 - 2012 - by-ag-noorani visited on 21.08.2019 at 5.41Pm
It is widely discussed as the most controversial event that Nehru didn’t take Cabinet approval prior to referring the issue to UN. However, some contemporary texts do give us information that there was a Cabinet Meeting held but Sardar Patel was not a part of it. However, Nehru informs Saradar the next day that the cabinet has decided to refer the matter to UN and a draft petition is sent to British Prime Minister and a copy of the same would be sent to him. But one undisputed matter is there was a difference of opinion amongst Nehru & Sardar in referring the Kashmir issue to UN. It is also understood that, Patel did not agree for Nehru’s decision. But at this precise point in time the Sardar, who had so far looked after the relations with the princely states, was sidetracked. On December 23, he wrote his resignation, but was prevented (by Gandhi) from pressing for it. From that day, with Patel out of Kashmir affairs, things went from bad to worse. UN’s reaction on the Petition & Nehru’s efforts on solving the Kashmir Problem: In the first months of 1948, during the UN hearings, the British showed where their interests lay. The original Indian complaint was completely left aside and the Security Council began adopting anti-India resolutions. Abdullah had already started his crusade (particularly with the US administration) for Kashmir's independence. He remained Nehru's friend till his scheming became too dangerous for India. In August 1953, he was finally dismissed by Karan Singh, the sadar-i-riyasat. Two months earlier, Shyama Prasad Mookerjee, who had been arrested by Abdullah and left without medical care in Srinagar, died in mysterious circumstances. Nehru had visited the capital of Kashmir a few days earlier, but did not find the time to call on his former Cabinet colleague. He later wrote to Mookerjee's mother: 'Indeed, I hoped that the healthy climate of Kashmir might lead to an improvement in Shyama Babu's health.' Though in the following years Nehru hardened his position when different UN commissions (Dixon, Graham, Jarring) visited Delhi, it was too late. Pakistan was certainly not interested in vacating the so-called 'Azad Kashmir', rendering the plans for a plebiscite mentioned in the UN resolutions of August 1948 and January 1949 irrelevant.
ARTICLE 370-Explained: Included in the Constitution on October 17, 1949, Article 370 exempts J&K from the Indian Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution. It restricts Parliament’s legislative powers in respect of J&K. For extending a central law on subjects included in the Instrument of Accession (IoA), mere “consultation” with the state government is needed. But for extending it to othe r matters, “concurrence” of the state government is mandatory. The IoA came into play when the Indian Independence Act, 1947 divided British India into India and Pakistan. For some 600 princely states whose sovereignty was restored on Independence, the Act provided for three options: to remain an independent country, join Dominion of India, or join Dominion of Pakistan — and this joining with either of the two countries was to be through an IoA. Though no prescribed form was provided, a state so joining could specify the terms on which it agreed to join. The maxim for contracts between states is pacta sunt servanda , i.e. promises between states must be honoured; if there is a breach of contract, the general rule is that parties are to be restored to the original position. A number of other states enjoy special status under Article 371, from 371A to 371J. THE INSTRUMENT OF ACCESSION-Terms Included: The Schedule appended to the Instrument of Accession gave Parliament the power to legislate in respect of J&K only on Defence, External Affairs and Communications. In Kashmir’s Instrument of Accession in Clause 5, Raja Hari Singh, ruler of J&K, explicitly mentioned that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of Indian
Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. Clause 7 said “nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution”. ENACTMENT OF ART. 370: The original draft was given by the Government of J&K. Following modification and negotiations, Article 306A (now 370) was passed in the Constituent Assembly on May 27, 1949. Moving the motion, Ayyangar said that though accession was complete, India had offered to have a plebiscite taken when the conditions were creat ed, and if accession was not ratified then “we shall not stand in the way of Kashmir separating herself away from India”. On October 17, 1949, when Article 370 was finally included in the Constitution by India’s Constituent Assembly, Ayyangar reiterated India’s commitment to plebiscite and drafting of a separate constitution by J&K’s Constituent Assembly. ART.370- A TEMPORARY OR PERMANENT PROVISION? It is the first article of Part XXI of the Constitution. The heading of this part is ‘Temporary, Transitional and Special Provisions’. Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it. Another interpretation was that accession was temporary until a plebiscite. The Union government, in a written reply in Parliament last year, said there is no proposal to remove Article
