Whether Or Not Revoking Article 370 Was Legal, The People’s Voices Should Count

Delhi may be in a vulnerable seismic zone but the political earthquake that shook the capital (and the country) in early August of 2019 may have never been seen before! Article 370 (except clause 1) and 35-A were repealed by the two Houses of Parliament (Rajya Sabha with 125 against 61 and Lok Sabha with 351 against 71 votes). More than seven decades of state policy was overturned with a single stroke. And the government did not stop at that! The Home Minister went ahead and reorganised the state of Jammu and Kashmir into two Union Territories: Jammu and Kashmir (with a legislature) and Ladakh (without a legislature).

There have been arguments and counter-arguments, debates and discussions about this for hours and hours on news, channels pages after pages of columns and op-eds, and in the proceedings of the Parliament itself. Unlike most people around me, I kept away from jumping to conclusions, for I have always felt that reflection, with a sense of equanimity, is important and something that I naturally resort to. After some days of meditating on this development, I think I am ready to share what I feel.

How Did Jammu And Kashmir Accede To India?

Jammu and Kashmir has been the bone of contention between India and Pakistan for decades. In 1947, when the British Raj finally called it a day in South Asia, it gave independence to India and Pakistan after a messy Partition. But, these were not the only political entities around. There were 565 princely states that were officially recognised in the Indian subcontinent in 1947, and the Britishers gave them the choice of merging with India or Pakistan or remaining independent. While the courts of the kings of these kingdoms were full of great pomp and show, in actual terms, they were hardly influential or powerful.

In fact, in the history of the British Raj in India, only a handful of kings from 1857-1947 were awarded high-ranking honorary positions in the British army: the Maharajas of Gwalior and Jammu & Kashmir were created honorary Generals in the British Army in 1877, the Maharaja of Bikaner was made one in 1937, and the Nizam of Hyderabad in 1941, while the rest of the kings were given lower ranks. The first time in decades when these kings had a substantial influence on the fate of their subjects, or so it was made to be believed, was when the British asked them to choose: Between India, Pakistan or independence.

While some princely states like Mysore and Travancore had no problems deciding, states like Junagadh and Jodhpur needed a bit more cajoling while still others like Hyderabad faced military operations for accession and merger. The one state that stood out due to its strategic importance, historical legacy and interesting intra-state dynamics (of having a Hindu king and a Muslim population) was Jammu and Kashmir, which was ruled by Maharaja Hari Singh, a Dogra Hindu king.

Jammu and Kashmir had grown over the previous century, after it was bought by Gulab Singh for 7,500,000 Nanakshahee Rupees from the British, as part of the Treaty of Amritsar (this was the land the British had ceded to them by the Sikhs by the Treaty of Lahore). Zorawar Singh Kahluria, general of Gulab Singh, invaded Ladakh for the Dogras around 1835 and subsequently, a combined force comprising of the British and the Dogras arrived in Kashmir and acquired the surrender of Kashmir, after which Gulab Singh entered Srinagar on 9 November 1846 as the Maharaja of Jammu and Kashmir.

Following the death of his uncle Maharaja Pratap Singh, the last ruler of the princely state of Kashmir – Maharaja Hari Singh ascended the throne of Jammu and Kashmir in 1925. His was a progressive reign, with him making primary education compulsory in the state, introducing laws prohibiting child marriage, and opening places of worship to the low castes. In 1947, Hari Singh initially manoeuvred to maintain his independence by playing off both India and Pakistan!

He showed reluctance to accede to either when Mountbatten came to speak to him on 19 June 1947. While his Muslim subjects may have wanted to go with Pakistan, he was said to have preferences towards India. On 11 July 1947, Muhammad Ali Jinnah declared that if Kashmir opted for independence, Pakistan would have friendly relations with it. However, the Maharaja would just not give in to taking a decision and kept the decision at bay for quite a while. A bit too long possibly, for soon Pashtun tribesmen from Pakistan invaded the state after repelling Hari Singh’s forces. Although the Indian Prime Minister Nehru was ready to send troops, the Governor-General of India, Lord Mountbatten of Burma, advised the Maharaja to accede to India before India could send its troops in his support. Considering the emergency situation, the Maharaja of Jammu and Kashmir signed an unconditional and irrevocable Instrument of Accession to the Dominion of India on 26-27 October 1947.

Page 1 of the original Instrument of Accession of Jammu and Kashmir with India. Source: National Archives
Page 2 of the original Instrument of Accession of Jammu and Kashmir with India. Source: National Archives

It is interesting to note here that in the Joint Defence Council meeting on 13 June 1947, Nehru and Jinnah clashed over how to go about with the accession and merger of the princely states: Jinnah asserting that it was for the rulers to decide and Nehru insisting that it was for the people to do so. Had we gone with the latter, Jammu and Kashmir may well have been with Pakistan today.

Plebiscite, Allegations And UN Intervention: The Battle Continued

The tricky bit on the question of accession came with certain communications between the leaders of the time. On 30 September 1947, Jawaharlal Nehru proposed using plebiscite as a means of determining the will of the people and settling disputes regarding princely states. This was discussed in the Indian Cabinet and then communicated to the then-Pakistani Prime Minister Liaquat Ali Khan, whose eyes were said to have “sparkled” at the proposal, though he made no response, as per War and Diplomacy in Kashmir (2014) by C. Dasgupta.

Then on 27 October 1947, after the Indian army had entered the state to repel the invaders, Sheikh Abdullah endorsed the accession but termed it ad hoc and to be ultimately decided by the people of Jammu and Kashmir. Then, on 1 November 1947, Lord Mountbatten and Mohammad Ali Jinnah met in Lahore, as did the Governors-General of India and Pakistan respectively. Mountbatten offered a proposal by India that the accession of Junagadh, Hyderabad and Kashmir should be decided by an impartial reference to the will of the people in the form of a plebiscite, which Jinnah interestingly rejected, as per The Kashmir Dispute, 1947-2012 by A.G. Noorani!

On Mountbatten’s recommendation, after the India-Pakistan conflict had escalated to dangerous levels, the matter was taken to the United Nations. This may have been a political miscalculation on Nehru’s part since some say that India could have recovered the lands invaded by the tribesmen entirely. On 15 January 1948, about a fortnight before the assassination of Mahatma Gandhi, India and Pakistan made presentations to the UN Security Council, wherein while India reiterated its demands of withdrawal of support to the tribesmen by the Pakistan government, Pakistan made several allegations against India, which included the unlawful occupation of princely states like Junagadh and alleged genocide against Muslims in various places in India, among other issues. Pakistan demanded the withdrawal of the raiders as well as the Indians from the state of Jammu and Kashmir!

The UN Security Council passed Resolution 38 on 17 January 1948 and Resolution 39 on 20 January 1948:

UN Resolution 38
UN Resolution 39

When the Indian Cabinet felt that sufficient consideration was not being given to its complaint, India requested an adjournment of the Security Council discussions on 3 February 1948, and the discussions were finally adjourned on 12 February 1948 but were resumed again on 10 March 1948. As per C. Dasgupta in his book War and Diplomacy in Kashmir (2014), on 18 March 1948, the Republic of China, which was the Chair of the Security Council at that time, tabled a resolution in three parts:

  1. Restoration of peace by calling upon Pakistan to withdraw the raiders and all support to them.
  2. Request that India appoint a plebiscite administration with UN-nominated directors.
  3. A request that India broaden the interim government with representatives from all major political groups.

Finally, on 21st March 1948, the UN Security Council passed Resolution 47 which called for a three-step process for the resolution of the dispute:

  1. Pakistani withdrawal of its nationals from Jammu and Kashmir.
  2. India to reduce its troops to a minimum level in Jammu and Kashmir.
  3. Arrangements for a plebiscite in Jammu and Kashmir.

A UN Commission, which had been proposed in January for addressing this issue, was enlarged from three to five members under the name of United Nations Commission for India and Pakistan (UNCIP). Although both Pakistan and India rejected Resolution 47 (India objected since the Resolution placed the countries at the same level when Pakistan was clearly the aggressor and Kashmir had acceded to India, allowed only minimum troops in the state for defence, excessive powers to Plebiscite Administrators and  the unrealistic expectation for the return of all refugees, besides wanting Pakistan not to be a part of the plebiscite agreement; Pakistan, on the other hand, objected to retention of Indian forces in Kashmir and equal representation in the government of the state for the Muslim Conference, the dominant party of the Pakistani-held Kashmir), they promised to work with the Commission.

The Commission eventually declared its failure, after its proposed compromise was rejected by both nations, and submitted its final report to the Security Council on 9 December 1949. In 1972, the Shimla Agreement was signed which made the Kashmir issue a bilateral one, and eventually in 2001, Kofi Annan, the then Secretary-General of the United Nations and Nobel Laureate (Peace) 2001, during his visit to India and Pakistan, clarified that Kashmir resolutions are only advisory recommendations. 

Where Does Article 370 And Article 35-A Feature Into The Picture??

Two years after the Maharaja of Jammu and Kashmir had signed the unconditional Instrument of Accession to India, there were deliberations about the nature of association with India that the state would have. The state’s original accession, like all other princely states, was on three matters: foreign affairs, defence and communications.

Around this time, all the princely states were invited to send representatives to India’s Constituent Assembly, which was formulating the constitution of India. They were also encouraged to set up constituent assemblies for their own states, if they so wished to. While most states could not set up such assemblies in time, states like Travancore and Mysore did. However, around May 1949, the rulers and chief ministers of all the states agreed that separate constitutions for the state was not required and they accepted the Constitution of India as their own constitution. As per V. P. Menon’s The Story of Integration of the Indian States 1956, the states that had already set up constituent assemblies suggested a few amendments which were accepted.

As per A. G. Noorani’s  Article 370: A Constitutional History of Jammu and Kashmir, in the case of Jammu and Kashmir, the representatives to the Constituent Assembly of Jammu and Kashmir – Sheikh Abdullah, Mirza Mohammad Afzal Beg, Maulana Mohammad Saeed Masoodi and Moti Ram Bagda, requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State. Thereafter, Article 370 was included in the Indian Constitution, which `stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State’s constituent assembly‘.

Article 370: Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything contained in this Constitution,—

(a) the provisions of article 238 shall not apply now 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 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.

Explanation: For the purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.

(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 sub-clause (b) of clause (1) or in the second provision 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.

The article was drafted in Part XXI of the Indian Constitution, among what are Temporary, Transitional and Special Provisions. This article, along with Article 35A, defined that the state’s residents live under a separate set of laws, including those related to ownership of property, citizenship, and fundamental rights, as compared to laws as applied in other states. An important Presidential Order that reinforced and clarified some of the points here was the Presidential Order of 1954:

The Presidential Order of 1954 came into force on 14 May 1954, and was issued with the agreement of the State’s Constituent Assembly. 

The following provisions were implemented:

  1. Indian citizenship was extended to the ‘permanent residents’ of Jammu and Kashmir.
    • Article 35-A was added to the Constitution, empowering the state legislature to legislate on the privileges of permanent residents with regard to immovable property, settlement in the state and employment.
  2. The fundamental rights of the Indian constitution were extended to Jammu and Kashmir. However, the State Legislature was empowered to legislate on preventive detention for the purpose of internal security. The State’s land reform legislation (which acquired land without compensation) was also protected.
  3. The jurisdiction of the Supreme Court of India was extended to the State.
  4. The Central Government was given power to declare national emergency in the event of external aggression. However, its power to do so for internal disturbances could be exercised only with the concurrence of the State Government.
  5. Financial relations between the Centre and the State were placed on the same footing as the other States. The State’s custom duties were abolished.
  6. Decisions affecting the disposition of the State could be made by the Central Government, but only with the consent of the State Government.

Now Here Comes The Catch 

Although this was a “temporary provision”, the State’s constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of this Article. Thus, technically the Article has become a permanent feature of the Indian constitution. This was confirmed by various rulings of the High Court of Jammu and Kashmir and the Supreme Court of India, the latest of which was on April 2018. Over time, 47 Presidential orders had been issued between 11 February 1956 and 19 February 1994 that have made various others provisions of the Indian constitution applicable to the state. The Bharatiya Janata Party (BJP) and the Rashtriya Swayamsevak Sangh (RSS) have been calling for the abrogation of the article for a number of years.

Abrogation
Presidential Order (C.O. 272) on Abrogation of clauses of Article 370 with clarification of Article 367 of the Indian Constitution

Amit Shah, Home Minister of India, announced in the Rajya Sabha that the President of India had issued a Presidential Order under Article 370, superseding the 1954 Presidential Order, on 5 August 2019. The order stated that all the provisions of the Indian Constitution applied to the state, in contrast to the 1954 order that specified that only some articles of the Indian constitution to apply to the state. Thus, the Constitution of Jammu and Kashmir stood abrogated. Now, Article 370 reads as:

Article 370: All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.

The Question Of Trust And Legality Of 370 Scrapping

Over the last few days, I have been reflecting on the legality of the move as well as the question of trust. The former is around the point that the President of India can only abrogate clauses of Article 370 ‘in concurrence of the Constituent Assembly of Jammu and Kashmir’. The problem is that the Constituent Assembly of Jammu and Kashmir ceased to exist in early 1957, and so the concurrence of this political entity cannot be obtained without the reformation of a Constituent Assembly in the state. What the Indian government has done that it has carried over the responsibility of the Constituent Assembly of the state to the Legislative Assembly of the state. Since the state is currently under President’s Rule, it is the governor whose word has been taken for the concurrence clause. The technical detail that is crucial to understanding the legality is that in this the clause employed is Article 370 (1) (d)

Article 370 (1) (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.

and not the complete scrapping of the Article under Article 370 (3)

Article 370 (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.

This is key to understanding that this move is legally permissible since the move is not to scrap Article 370 as much as it is to supersede provisions under the 1954 Presidential Order and certain clauses of the Article. Senior lawyer Harish Salve and former Attorney General Mukul Rohatgi backed the order. Salve went on to say that,

There is no amendment of Article 370. There was a Presidential Order in 1954, there’s a new order now.

However, there were others who questioned the legality of the move. Former Attorney General Soli Sorabjee said,

Kashmir is an integral part of India. I don’t see anything unconstitutional in the Bill for reorganization of the state. But, the court will have to decide whether the consent of the J&K Governor was enough. It’s a grey area.

The question of what constitutes the ‘government’ of the state and representation of the people remains. Whether the governor can represent the interests and needs of the people is a question that the government may have to answer, beyond just technicality and legality.

But What Is More Important, According To Me, Is The Question Of Trust 

The state of Jammu and Kashmir signed the Instrument of Accession which gave a basic union with India, allocating only three specific areas to the Union government. While most other states went ahead with the complete merger, the merger of Jammu and Kashmir was conditional to the Article. The Article itself may have been temporary but it was integral to a bond of trust between the people and India, and even though it had to go eventually, taking the confidence of the residents of the state is important. Yes, Ladakh has sought for a Union Territory for seven decades. Yes, Kashmiri Pandits were driven out in the 1990s in a terrible exodus. However, when one speaks of the state, one speaks of all the people living in the state as much as the government itself. This brings the fundamental question of what is a state?

One of the most famous definitions of the ‘state’ is Weber’s which describes the state as a compulsory political organization with a centralized government that maintains a monopoly of the legitimate use of force within a certain territory. Marxist thought regards the ends of the state as being the perpetuation of class domination in favour of the ruling class which, under the capitalist mode of production, is the bourgeoisie, and as per the Communist Manifesto, Marx said that,

the executive of the modern state is nothing but a committee for managing the common affairs of the whole bourgeoisie

Another commonly accepted definition of the state is the one given at the Montevideo Convention on Rights and Duties of States in 1933, which says

[t]he state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

[…]

[t]he federal state shall constitute a sole person in the eyes of international law.

I would like to go beyond these definitions in making the legitimacy of the state’s composition derived from the relational reality of a state’s constituents. Yes, the people of Jammu and Kashmir may have faced a number of developmental problems, due to the clause that national laws can only be applied in the state by the concurrence of the state government. Yes, the article may have led to the creation of a separate identity that may have fueled sentiments of separatism. However, since the trust with which the state became actively associated with India was Article 370, it was pertinent to have a consultation on this front. Legally, the Government of India may not violate any rules and laws, but what about the rules of association and trust?

These are all questions that may not have arisen had there been a wide-scale consultation exercise before the step was taken. Convincing the state residents of their Indian-ness could have been done without imposition and should have been done, for governments come and governments go but collective consciousness and memory is what remains. And without taking the people of the state into confidence, the current Order may be superseded again. What may, however, irrevocably change dynamics is the settlement of people from the rest of India in the state. Even though I understand the arguments made by our Home Minister, there is the question of the legitimacy of the rule if the people actively oppose it, in large sections of the state. In what can be construed as an exaggeration of sorts, everybody from Charles I to Louis XVI may have had brilliant ideas of what helps the state and what the state fundamentally is, but unless the people bought into that, it simply led to damage to their persons and their legacies.

The Way Forward

The government of India has taken a historic step, albeit without what I feel should have been a prioritized element and step in the process. The opposition may question the legality of the Order and abrogation of Article 370, but I question the legitimacy of the step in the eyes of the constituents of the state of Jammu and Kashmir. Weber’s definition of the state may make the government extend its monopoly of legitimate force, given the ways in which demographics have changed over the decades (some would argue that many residents are not even exercising their free will and are being ‘brainwashed’ by external elements) and the political changes in the area.

However, in contemporary times one wonders if legality is enough. In contemporary times, one wonders whether one can disregard the voice and will of an entire people, by clamping down on communication and political representation of the people before such a step. Even the tenets of Dharma would say that it is in the free will of people and the consciousness of the people that the true receptacle of righteousness lies when the convenience of politicking and the layers of identity politics are not actively playing a role.

In all of this, the state and the government has a role in facilitating this, in convincing people and taking them into confidence for steps that affect them. I believe in the integrity of my country and the idea that Jammu and Kashmir is an integral part of India, but I would have liked it better if there was sufficient consultation before such a step was taken.

Though one may argue on the degree of human rights violations in the Valley, one cannot, however, argue against the understanding that lack of freedom of expression and political voice is a human rights violation in itself. India also faces the very real risk of losing the state, rather than truly ‘winning it back’, given the nitty-gritty of international law. I just hope that if this step is carried through to the conclusion the current regime envisages, it must truly lead to the peace, prosperity and progress of all the people of Jammu and Kashmir (and Ladakh).

These are my reflections on the recent step by the Government of India, along with highlighting the realities around the Article.

Jai Hind!

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