As SC debates Article 370, IANS provides insights

As SC debates Article 370, IANS provides insights


New Delhi, Aug 4 (IANS) The ongoing hearings over the abrogation of Article 370 vis-a-vis Jammu and Kashmir are predicated on senior advocate Kapil Sibal challenging the validity of the revocation of special status of Jammu and Kashmir.

Advocate Kapil Sibal cites that since Jammu and Kashmir Constitution of 1957 had no provision to alter the special status of Jammu and Kashmir as Parliament cannot assume the role of the state legislature to recommend truncation of the said provision and moreover divide the state into two Union Territories.

The argument being that once the Constituent Assembly lapsed in 1957 without providing any mechanism in the J&K Constitution to amend, alter or abrogate Article 370, it assumed a permanent character which the Union government was aware of since 1957 till August 5, 2019 when it was abrogated.

Kapil Sibal went on to say for the petitioner that this was done through an amazing piece of handiwork containing a mosaic of illegalities that deserve to be junked by the SC.

Equally, it is well established that morally, legally and constitutionally the state of Jammu and Kashmir acceded to India and has since been an integral part of the Union of India.

For the uninitiated on February 15, 1954, the Jammu and Kashmir Constituent Assembly members who were present cast a unanimous vote ratifying the state’s accession to India.

The Constituent Assembly was later dissolved in 1957 and a Constitution was drafted which came into force on January 26, 1957 based on the Syed Mir Qasim resolution which had been adopted and ratified on November 17, 1956.

Part II, section 3 of the Constitution stated that the State of Jammu and Kashmir is and shall be an integral part of the Union of India.

Let us look at the facts and timelines as they unfolded. The Instrument of Accession itself, executed on October 26, 1947 under which Maharaja Hari Singh handed over the State to India, had three specific clauses which remain relevant today:

Clause 3: I accept the matters specified in the schedule hereto as the matters with respect to which the Dominion Legislature may make laws for this State.

Clause 5: The terms of this Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment is accepted by an instrument supplementary to this instrument.

Clause 7: 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.

It should become clear that we are taking the position that our autonomy should be consistent with this document that is, autonomy should be in consonance with the Instrument of Accession.

It is pertinent to note that in October 1949, Drafting Committee member Gopalaswami Ayyangar said before the Constituent Assembly:

“We have also agreed that the will of the people through the Instrument of the Constituent Assembly will determine the Constitution of the State as well as the sphere of Union jurisdiction over the State….You will remember that several of these clauses provide for the concurrence of the Government of Jammu and Kashmir State. Now, these relate particularly to matters which are not mentioned in the Instrument of Accession, and it is one of our commitments to the people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the State for the purpose of framing its constitution. In other words, what we are committed to is that these additions are matters for the determination of the Constituent Assembly of the State.”

In 1951, when the Constituent Assembly of J&K state was convened, Sheikh Muhammad Abdullah addressed the members and said:

“You are no doubt aware of the scope of our present constitutionalities with India. We are proud to have our bonds with India, the good will of whose people and Government is available to us in unstinted and abundant measure. The constitution of India has provided for a federal Union and in the distribution of sovereign powers has treated us differently from other constitutional units, with the exception of the items grouped under Defence, Foreign Affairs and Communication in the instrument of Accession. We have complete freedom to frame our constitution in the manner we like. In order to live and prosper as good partners in a common endeavour for the advancement of our people, I would advise that while safeguarding our autonomy to the fullest extent so as to enable us to have the liberty to build our country according to the best traditions and genius of our people, we may also by suitable constitutional arrangements with the Union establish our right to seek and compel federal co-operation and assistance in this great task, as well as offer our fullest cooperation and assistance to the Union.”

The Delhi Agreement of July 1952 was supposedly an agreement between two individuals, Sheikh Abdullah and PM Nehru. After being signed, the Delhi Agreement was debated in the Lok Sabha on July 24, 1952 by Nehru. It was then adopted. The Rajya Sabha then discussed the agreement on August 5, 1952 and approved it.

On August 11, 1952, Sher-e-Kashmir Sheikh Muhammad Abdullah presented it before the Jammu and Kashmir Constituent Assembly, which also gave its approval. It was, clearly, backed and authorised by the legislatures of both India and Kashmir giving it a stamp of finality. The salient points of the Delhi Agreement also need to be reiterated thus:

The decision to abolish the hereditary Dogra dynasty was accepted by New Delhi

The Indian Citizenship Act was made applicable to the state, but the state legislature was empowered to regulate the rights and privileges of permanent residents, specially over acquisition of immovable property and appointment to services

The right of state nationals who had gone to Pakistan or Pakistan-occupied Kashmir in 1947 or earlier, to return to their homes was acknowledged

The President of India was empowered to declare a state of emergency in case of external danger, but in case of internal disturbance the power could be exercised only at the request, or the concurrence of, the state government

The President of India was empowered to grant reprieve and commute death sentences

India’s agreement to the confiscation of jagirs without compensation shall permanently stand

The state was allowed its own flag, which was the flag of the National Conference party

The jurisdiction of the Supreme Court was extended to certain matters; and

It was agreed that Jammu and Ladakh should have cultural and regional autonomy.

Autonomy demand

As Sheikh Abdullah wrestled with the pros and cons of the concept of ‘full integration’ through the Delhi Agreement, he quickly realised that his dream of limited autonomy was slipping away.

His actions thereafter belied his nationalist character and in a silent coup d’etat, Director of Intelligence Bureau, B N Mullick’s dramatic operation saw Abdullah being arrested in Gulmarg.

By the mid-1990s, the demand for autonomy had grown and most people agreed that if there was a solution to the problem, it was the restoration of autonomy.

In a 1994 resolution, the National Conference (NC) clearly stated that: “At this sensitive moment we want to remind the Government of India that the people of the State had joined Indian Union on the basis of some shared principles. The Constitution got stability when the State of Jammu and Kashmir and the Indian Union entered into an agreement in 1952 which is commonly known as Delhi Agreement. After that, the relations got disrupted because the Union of India did not stand by its assurance which resulted in the loss of Autonomy.”

The State Autonomy Committee Report of 2000, after long hours of angry deliberation in the Jammu and Kashmir Legislative Assembly, is itself vague on specifics.

It points to the 42 constitutional application orders that were issued making Union legislation applicable to the State between 1954 and 1986, as visible evidence of an “erosion of autonomy”. It then enters the plea that “not all of these orders can be objected to,” though “it is the principle that matters.”

At the level of principle, the Central government may have found it difficult to accept that the Constituent Assembly of Jammu and Kashmir ceased to have any legal validity after Sheikh Abdullah was dismissed from his post as Wazir-e-Azam and imprisoned in 1953.

It was on this account that the accord negotiated between Sheikh Abdullah and Prime Minister Indira Gandhi in 1975 laid down strict limits on the scope of constitutional review.

It allowed for a review of the constitutional provisions that had been applied to Jammu and Kashmir in a modified form, but affirmed that all provisions applied “without adaptation or modification” would be “unalterable”.

The July 4, 2000 meeting of the Union Cabinet called Farooq Abdullah’s autonomy demand “unacceptable” and threw it out. 

Instead, the ‘Autonomy for Jammu and Kashmir and the Restructuring of Indian Federalism’ was spelt out alliteratively by Narendra Modi, the then party general secretary in-charge of Jammu and Kashmir: development, democracy, dialogue, and the use of the defence forces.

Now the same party official, Modi is the PM and has the chance to make game-changing decisions.

The following section examines some facts pertaining to Kashmir and autonomy:

What is ‘greater autonomy’, or the Pre-1953 position? The debate in the Jammu and Kashmir Legislature expanded on this theme:

Congress leaders, especially Nehru, created an impression that it was essential to grant special status to Jammu and Kashmir due to its peculiar position.

The term ‘peculiar position’ led communal elements to interpret that Congress had accepted in principle that the 51 Muslim-majority character of the State shall be maintained at all cost

The State was accorded ‘Special Status’ under Article 370 of the Indian Constitution with hardly any discussion in the Constituent Assembly

In 1952, Delhi Agreement was concluded between Nehru and Sheikh to give practical shape to the ‘Special Status’

Under the agreement, the State was given a separate Constitution and its own flag. The Head of the State and Government were given the nomenclature of Sardar-i-Riyasat and Wazir-i-Azam, respectively

The people who wished to enter the State of Jammu and Kashmir or go out were required to seek ‘Permit’ from state authorities

The accession of Jammu and Kashmir with the Indian Union was accepted only in terms of three subjects, vis-a-vis defence, foreign affairs and communications

Under the circumstances, the Jammu and Kashmir Praja Parishad launched a movement demanding Ek Pradhan, Ek Vidhan and Ek Nishan. More than a dozen workers sacrificed their lives at Hiranagar, Jourian, Sunderbani and Ramban and thousands were arrested

Bharatiya Jan Sangh under Shyama Prasad Mookerjee launched a nationwide satyagrah in support of the movement. Mookerjee entered the State on May 8, 1953 without ‘Permit’. He was arrested and sent to jail at Srinagar, where he died on June 23, 1953 under mysterious circumstances

Sheikh Abdullah, who had succeeded in achieving maximum possible autonomy for the State, was found conspiring with American and Pakistani agents to separate J&K from the Indian Union. He was arrested on August 9, 1953, thus ending one phase of the separatist movement in Jammu and Kashmir

An erosion in the State’s autonomy set in between 1953-1975 as pliant governments in Kashmir did the Centre’s bidding. During this period, 13 steps were taken systematically, sometimes surreptitiously, to extend various provisions of the Indian Constitution to the Jammu and Kashmir State. The following are some of them:

By 1954 Presidential Order the operations of Customs, Central Excise, Civil Aviation, Post and Telegraphs were extended

In 1958 All India Services – IAS, IPS was introduced and the functions of Comptroller and Auditor General were extended

In 1959 the legislative entry relating to Census was applied, making way for the conduct of Census of 1961 under Central Law

In 1960 J&K was brought under the jurisdiction of the Supreme Court. The jurisdiction of the Election Commission of India was extended

In 1964 Articles 356 and 357 of the Constitution were applied, making way for the introduction of President Rule in emergencies

In 1965 a number of legislative entries relating to Welfare of Labour, Trade Unions, Social Security and Social Insurance, were applied

In 1966 provisions related to direct elections to Lok Sabha were applied

Since 1953 about 337 laws were extended to Jammu and Kashmir State, including those related to Chartered Accountants Law, Coinage Act, Conservation of Foreign Exchange and Prevention of Smuggler Activities Law, Contempt of Courts Law, Customs law, CopyRight Act, Dangerous Drugs Act, and Delimitation

The visa-type ‘Permit System’ was abolished

A general sense of ennui soon drifted into the Valley, with the people getting the sense that they had become more weak, as Delhi continued to push the envelope and enfeeble Article 370 and even the Delhi Agreement which, in itself, was the first such attempt at paving the way for full integration rather than limited autonomy.

The bottomline was that Sheikh Abdullah signed off on the Delhi Agreement and then realised that his idea of an autonomous, even semi-independent Kashmir, was merely a delusion, an unreachable pie in the sky.

What were the dangers implied in the recommendations of the State Autonomy Committee? Why did the Union cabinet trash it completely?

One of the recommendations of the Committee was that Article 370 which has been incorporated as ‘Temporary’ be made ‘Special’ Article

The Committee recommended that J&K’s accession with the Indian Union be reverted to only three subjects, vis-a-vis Defence, External affairs and Communication. In all other matters, the State will remain independent

The nomenclature of the ‘governor’ and ‘Chief Minister’ changed to ‘Sadar-i-Riyasat’ and ‘Prime Minister’, respectively

The said Sadar-i-Riyasat was to be elected by the State Assembly, making him responsible not to the President of India but to the State Assembly

Another recommendation provided for the repeal of jurisdiction of the Supreme Court, Election Commission of India, and Comptroller and Auditor General of India
The Committee had also recommended the deletion of Articles 12 to 35 relating to Fundamental Rights

The report had provided for the withdrawal of Central Services such as the Indian Administrative Service (IAS) and the Indian Police Service (IPS)

It provided that Articles 356 and 357 be made non-applicable to the State of J&K

What would have been the state of affairs in 1989, when Pakistan-sponsored ‘death by a thousand cuts’ militancy had engulfed the whole Kashmir Valley, had the President of India not declared President’s rule in J&K?

Furthermore, National Conference did not exactly cover itself with glory in the first flush of achieving autonomy in 1950. The following are some facts relevant to today’s examination:

The September 1951 election to the State Constituent Assembly was conducted under State’s Election Law. The NC elected all the 75 members rejecting the nomination papers of opposition candidates

The Kashmiri leaders have grossly misused powers they got under special status to deprive the people of Jammu and Ladakh (more than 50 percent of the population) of their legitimate rights. These people have lived as second-class citizens for the last 50 years

The NC government is lending full support (overtly and covertly) to plans of Pakistan’s Inter-Services Intelligence (ISI) to convert Jammu and Ladakh to Muslim-majority provinces. During the last few years, about 25,000 Muslim families from Kashmir Valley have constructed their houses in Jammu Province, encroaching on government lands

After coming to power under the Indra-Sheikh accord of 1975, the NC government passed the Resettlement Bill which provides for the return of thousands of families who left J&K for Pakistan in 1947. The Supreme Court has ordered the withholding of the said bill. What would have been the fate of J & K had the jurisdiction of the Supreme Court not extended to the State?

Granting autonomy to J&K has miserably failed to bring the State closer to India as is claimed by the propounders of the idea of ‘Greater Autonomy’. On the contrary, it has become a major factor in converting J&K into a breeding ground for ISI and giving rise to militant Muslim separatism

In the 1996 Assembly election the NC obtained less than 15 percent of the total votes. In those elections people had voted for the restoration of democracy. Moreover, it was not a referendum on greater autonomy as is claimed by NC

Barring a few, almost all sections of Kashmiri society have expressed their opposition to NC’s demand for more autonomy. They include people of the Jammu and Ladakh regions, as well as the Gujjars, Shias, Sikhs and Kashmiri Hindus

After coming to power in 1975, Sheikh Abdullah had also appointed a similar committee under D.D. Thakur, a senior NC Minister, to review various laws extended to J&K from 1953 to 1975. The D.D Thakur Committee recommended that all the legislative entries made during that period are in the interest of the people of the State and thus should not be touched. Sheikh Abdullah had accepted the findings of the Committee

Failed four-point formula

In 2006 the world came close to witnessing the forging of what would be known as the four-point formula for Kashmir which was negotiated between then Indian Prime Minister Manmohan Singh and then Pakistani President Pervez Musharraf.

The formula had sought a non-territorial solution for Kashmir. The LoC would become a line on a map that facilitated free and easy travel to Kashmir on both sides; the State would be demilitarised; both parts of the State would receive an agreed quantum of self-rule or ‘azadi’; there would be a “joint mechanism” of representatives from both parts, with no executive powers, to supervise the working of the accord and consult on matters of common interest. The solution included free trade and movement across LoC.

WikiLeaks had revealed a US embassy cable, dated April 21, 2009, where Singh had confirmed this ‘formula’ to a visiting US delegation. Singh told the US delegation that Delhi and Islamabad had made great progress prior to February 2007, when President Musharraf ran into trouble.

“We had reached an understanding in back channels,” Singh related, according to the cable.

Singh went on to add that India wanted a strong, stable, peaceful, democratic Pakistan and made no claim on “even an inch” of Pakistani territory.

It is noteworthy that this formula did not incorporate the aspirations of the Kashmiri people, including the Dogras, Kashmiri Pandits, Ladakhis, Sikhs, Christians. The Kashmiri Muslims of all hues including Sunnis, Shias, Gujjars, Bakarwals and Pahadis.

After all, the call for ‘azadi’ is primarily among the Sunni Kashmiri-speaking Muslims who inhabit the Valley who continue to reject the very idea of being integrated into the Indian Union. Without this crucial input, the Four-Point Formula obviously could not succeed.

Historian and Kashmir expert, AG Noorani, once said as he weighed in on the Singh-Musharraf formula:

“No Indian government can possibly accept Kashmir’s secession from the Union and survive; no Pakistani government can possibly accept the LoC [Line of Control] as an international boundary and survive; the Kashmiris will not acquiesce to the partition of their State or the persistent denial of self-rule and human rights.”

The four-point formula seemed to have passed Noorani’s test: It did not spell Kashmir’s secession; did not make the LoC an international boundary; and reunited the State de facto while granting an agreed measure of human rights for east as well as west Kashmir.

There is no difference of opinion with respect to the accession of State with India on two main issues that is -- the Instrument of Accession and the Delhi Agreement.

The rest of the powers, including residual sovereignty, were vested with the State under Article 370. All the Princely States were authorised to frame their own constitution in their respective constituent assemblies.

At that time only four States namely, Saurashtra, Travancore and Cochin, Mysore and J&K chose this option and set up their own Constituent Assemblies. Three of these States did not frame their Constitution, and only J&K formed its own Constituent Assembly and framed its Constitution.

A note of October 26, 1947 to Hari Singh's Prime Minister, Mehar Chand Mahajan, was explicit.

“The Government of India will accept this accession provisionally subject to their declared policy that such matters should be finalised in accordance with the will of the people. Any reference to the people can only take place when law and order have been fully established.”

The word ‘provisional’ occurs in most official documents of the time including the Government of India's White Paper of 1948; at some places the word ‘conditional’ was used.

Few know that on January 31, 1948, even while the war was on, Hari Singh threatened to ‘withdraw the accession that I have made to the Indian Union’ (Sardar Patel's Correspondence; page 162). Vallabhbhai Patel overlooked that. He was less generous to Abdullah.

Historian A.G Noorani writes: “In 1953, Nehru concluded an accord with Muhammad Ali Bogra on a regional plebiscite that he did not intend to carry out. It was a tactic to keep the UN out and get time for Bakshi Ghulam Muhammad. Sheikh Abdullah realised too late in the day the wisdom of the advice his colleague Pandit Prem Nath Bazaz gave him in 1947 - decide the issue of accession according to the people’s wishes. On the accession, the people were not with him. Both Nehru and Abdullah were opposed to Kashmir’s accession to Pakistan. But Nehru was opposed also to its autonomy, except in name. He fought on both fronts and created a mess. Had he fought on one, he might have pulled it off.

Sheikh Saheb could not ignore Nehru’s moves, nor the growing popular alienation and his own isolation from the people. He decided to follow the people’s mood, not Nehru’s, and was jailed.

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