Legal Tangle & Constitutional Surgery
   22-Oct-2019


 

 
 
With the amendment in Article 370, the surgery by Constitutional means in J&K is over. Let us be hopeful for the ‘Paradise on Earth’ to re-emerge with its full splendour and gaiety 

 

S. SANAL KUMAR
 
Article 370 of the Constitution has come to an end heralding the emergence of a new Jammu & Kashmir. The Presidential Order abrogating the special status to J&K and its bifurcation into two Union Territories has been accepted by the Nation. But the frail voices of dissension from opposition parties, describing the move as undemocratic and treachery on the people of Kashmir, spell doom for its full grandeur and glory.

 
The Background of the Instrument of Accession

 
Maharaja Hari Singh was the ruler of princely State Jammu & Kashmir at the time of Independence. Even before the ‘Quit India Movement’ in British India, there arose revolt against Maharaja by National Conference under Sheikh Abdullah and Muslim Conference in 1938, as “Quit Kashmir Movement”. With the end of Second World War, decolonisation started with Britain declaring its intention to accord complete Independence to India. The Cabinet Mission visited India on March 23, 1946, and issued a Memorandum containing guidelines for the native States to follow regarding future course of action on Independence. Provincial Governments under British sovereignty and princely States ruled by dynasties, and were under suzerainty of Britain were dealt with under the Memorandum issued. The Princely States could opt to join as a federal unit under the proposed Dominion. The Memorandum brought to an end the paramountcy of crown over princely States. Following this, Indian Independence Act 1947 was passed by the British Parliament dividing India into Dominion of India and Dominion of Pakistan. By Section 9 of the Independence Act, the Princely States were given the option to accede to either of the dominions as per Section 6 of the Government of India Act 1935. Full freedom was given to Principalities in joining with emerging Dominions. The Indian Independence Act contemplated a referendum to ascertain the wishes of people only in respect of North-West Frontier Province and Sylhet in Assam (Section 2(2)(e)and3(2)of the Act). The Dominion of Pakistan was carved out from British India with West Punjab, Sind, Balochistan, East Bengal and North-West Frontier Province with the remaining British India to become the Dominion of India. But sourcing power from Section 9 of Independence Act read with Section 6 of Government of India Act, as many as 500 and more princely States executed Instrument of Accession with India or Pakistan, as the case may be before August 15, 1947. The princely State of Junagarh, Kashmir and Hyderabad were diplomatically dithering to take a decision on accession.
 
Maharaja Hari Singh of Kashmir wanted to remain as a sovereign State, opting not to sign the Instrument of Accession. But when the revolt against Maharaja by Pushtun tribesmen with the aid of the Pakistan army was about to dethrone the King, the assistance of India was sought by the Maharaja. With the signing of Instrument of Accession on October 26, 1947 by the Maharaja, which in form and substance was like 140 other instruments of Accession signed by other States, the princely State of Kashmir became an integral part of India. It did not contain any clause for referendum to be conducted for its full integration with Dominion of India. Archives on Constitutional literature say that Dr. Ambedkar was averse to the incorporation of Article 370 into the Constitution as according to him, it was against the terms of Instrument of Accession and the intent of full integration of Kashmir with India. The task of drafting Article 370 was undertaken by Gopalaswamy Ayyangar, a Minister in Nehru’s cabinet without portfolio.
 
When Pakistan-sponsored insurgency continued, India moved a motion in the U.N. Security Council in 1948 under Article 35 of U.N. Charter terming Pakistan’s intervention as a disturbance to international peace as also the tranquillity in Kashmir valley. This paved the way for ‘entanglement’ of India with UN diktat. It appears from records that the UN by Resolution No. 97 asked the Pakistan Military forces to demilitarise the area. As regards India it gave a direction to conduct a plebiscite in Kashmir to ascertain the wishes of Kashmir people regarding accession to India. Later, in 1951 when National Assembly was Constituted in J&K, Sheikh Mohamed Abdullah was elected as Prime Minister of Jammu & Kashmir. The Constituent Assembly, by its resolution dated February 15, 1954, ratified the State’s accession to India in unequivocal terms. The National Assembly, while adopting its Constitution on November 7, 1956 declared in Article 3 that Jammu & Kashmir is and shall be an integral part of the Union of India. Further Article 147 of J&K Constitution unequivocally says that Article 3 and 5 shall not be amended in any manner in future. It is also further laid down in Article 147 of the J&K Constitution that the provisions relating to the relations with Union of India are also not liable to any change by way of amendment. Though technically no plebiscite as instructed by UN was conducted, still the declaration by the elected representatives of the J&K Constituent Assembly gives a democratic imprimatur to the accession of J&K to India. The Constitution of J&K was adopted on November 7, 1956.
 
 

 

 Sardar Vallabhbhai Patel and Maharaja Hari Singh in 1948

 

 
Present Constitutional Therapy Done

 
Running with the tumultuous years in Kashmir after Independence, the framing of Constitution of Union of India was taking place. The then Industries Minister in Nehru Cabinet, Dr. Syama Prasad Mookerjee, resigned from the Cabinet on account of the decision to give special status to Jammu & Kashmir. His death in custody by J&K Government under Sheikh Abdullah is still a mystery to be unravelled. When Article 306A (now 370), was introduced by Gopalaswami Ayyangar in the Constituent Assembly it is curious that the opposition came from a Muslim member, Maulana Hasrat Mohani (United Provinces: Muslim). He termed the granting of special status as discriminatory. Some excerpts from the Constituent Assembly Debates held on October 17, 1949:
 

Honourable Shri N. Gopalaswami Ayyangar

 
............. I do not want to take much of the time of the House, but I shall briefly indicate what the special conditions are. In the first place, there has been a war going on within the limits of Jammu and Kashmir State.
 
.....We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.
 
.....Now, if you remember the view points that I have mentioned, 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.
 
........Maulana Hasrat Mohani: Sir, I want to make it clear at the very outset that I am neither opposed to all these concessions being granted to my Friend Sheikh Abdullah, not am I opposed to the acceptance of the Maharaja as the ruler of Kashmir. And if the Maharaja of Kashmir gets further powers and concessions I will be very glad. But what I object to is this. Why do you make this discrimination about this Ruler? Mr. Ayyangar has himself admitted here that the administration of Kashmir State is not on a very good basis......
 
The Honourable Shri N. Gopalaswami Ayyangar: That is a wrong statement. I never said so.
 
........Maulana Hasrat Mohani: That it will assume independence afterwards. But may I ask a question? When you make all these concessions for Kashmir I most strongly object to your arbitrary act of compelling the Baroda State to be merged in Bombay. The administration of Baroda State is better than the administration of many other Indian Provinces. It is scandalous that you should compel the Maharaja of Baroda to have his raj merged in Bombay and himself pensioned off. Some people say that he himself voluntarily accepted this merger. I know it is an open secret that he was brought from England and compelled against his will.....”
 
Now the time was overdue for the Government of India to bring an end to Article 370 for ensuring constitutional parity of States. Article 370(3) was invoked by the President for causing cessation of the Article itself. By invoking Section 92 of the J&K Constitution, the power of the Legislature of the State was assumed by the Governor. By the amendment of proviso to Article 370(3) with the effect of substituting `Constituent Assembly’ with `legislature of the State’, the Constitutional task was deftly done by the Government of India within the legal framework. Article 370 was, in fact, the placenta in the birth of Jammu & Kashmir. The gestation period of Jammu & Kashmir is over and the birth of J&K has taken place as twins. An excellent Constitutional gambit indeed it was.
 

Self-Determination

 
The Presidential Order and Bills moved by the Government are termed as undemocratic by some Opposition parties mainly on the premise that a recommendatory resolution of Legislature of the State is lacking as mandated by the proviso to Article 370(3). The position is conceded by all concerned regarding the power of the President to issue notification to cause cessation of operation of Article 370 of the Constitution. But argument based on lack of concurrence of the elected representative is one essentially boiling down to the issue of self-determination. Did Kashmir originally intend to go for self-determination at the time of formation of Dominion of India and Dominion of Pakistan when Indian Independence Act was passed in 1947 is the moot question in this context? An emphatic ‘No’ is the answer to the said question. The Independence Act made it peremptory the holding of referendum only in the North-West Frontier Province and Sylhet in Assam. It provided that these parts of British India could be made part of Pakistan subject to ratification by the people of the province through a referendum. But for the princely States, the wishes of the Ruler was the determining factor regarding accession to any of the Dominions under Section 9 of Independence Act in tandem with Section 6 of Government of India Act 1935. The princely States under the suzerainty of British Empire were returned their sovereign power by the British Crown to decide the issue of accession in accordance with the provisions in the Independence Act. The Independence Act contemplated a carte blanche to be given to the Rulers of Princely states, and no right of self-determination of its people was conceded to, as far as accession to dominions is concerned. Article 370, originally titled as “temporary and transitional’ was later retitled as `temporary’ in 1963 (Constitution 13th Amendment w.e.f. 1/12/1963). The J&K Constituent Assembly was formed on October 31, 1951. On February 15, 1954 the Assembly ratified State’s accession to India. The J&K Constitution came into being on January 26, 1957. The Constituent Assembly of J&K was dissolved on November 17, 1956. According to Mir Qasim Resolution, the Constituent Assembly ceased to exist on January 26, 1957. Though initially Sheikh Abdullah was elected Prime Minister, he was dismissed by the Head of State (Sadr-i-Riyasat), Karan Singh, son of Maharaja Hari Singh in August 1953 and was put in prison. The task of framing Constitution was done under the Prime Ministership of Bakshi Ghulam Mohammed. The declaration in the J&K Constitution that J&K is an integral part of India makes the self-determination of people of J&K complete in itself. The abrogation of the temporary provision, Article 370, makes the integration a constitutional reality whereby a uniform Constitution is made applicable to the whole of India. Now the flesh and blood of Union of India are the States and Union Territories enlisted under Schedule I of the Constitution of India. Kudos to the Union of India for the bloodless Constitutional conquest of its integral part.
 

Territorial Integrity, Sovereignty and Self-Determination

 
The concept of Nation-State is the product of Treaty of Westphalia 1648. Uniform language, ethos, State emblems etc. are contributing factors for formation of Nation-State. The adoption of national policies on education, cultural affairs, civil relations among citizens by a responsible Government followed by its successful implementation eventually leads to Nation-State formation. It is surprising that India, with its crippled sovereignty over an integral part of it, was nevertheless recognised as a Member State by UN so far. Emerging concepts of international law say that the right of self-determination of people of an area is subservient to the larger essential attributes of statehood like territorial integrity and sovereignty. When the clash of logic is based on territorial integrity and sovereignty on the one hand and right of self-determination on the other end, the former takes precedence over the latter.
 

Indian Episodes of Annexation of Territory

 
The annexation of Hyderabad to India is a classic example of the assertion of territorial integrity and territorial sovereignty. Though Nizam of Hyderabad wanted to join Pakistan, through a military intervention, called ‘Operation Polo’, the princely state of Hyderabad was made part of Union of India in September 1948. The Nawab of Junagarh desired to accede to Pakistan but Junagarh was annexed to Indian territory by military action. The referendum done on Junagarh under the supervision of Indian Military troop was only a farce, designed to give it the flavour of self-determination. The annexation of Sikkim in 1975, which was a Protectorate of Union of India till then, is also another example of assertion of territorial integrity. A referendum done after the conquest in Sikkim was, in fact, a smokescreen to give legitimacy to the conquest. The liberation of Goa and Pondicherry were done by way of similar military conquests.
 

The Conquest for Preservation of Rights of Ethnic Groups

 
On the international arena, the Russian annexation of Crimea in 2014 is another instance, where even a conquest is justified in the name of territorial integrity and preservation of rights of ethnic groups. Israel’s occupation of Galon Heights is now accepted by the US as an assertion of territorial sovereignty and integrity. Justice Anand, in his lecture (1996) 4 SCC Journal 11) draws parallel from the US annexation of Texas in 1845 from Mexico, when he talks about accession of Kashmir to India. The common feature of all these annexations is its justification for protection of rights of ethnic groups. The ethno-linguistic issues of Russians in Crimea, the sufferings of the US settlers in Texas were the propelling factors for the intervention of respective countries. The large scale exodus of Kashmiri Pundits, following the oppression by the majority religious groups in late 1990s is a legitimate reason for the Government of India for a complete military suzerainty over Kashmir. The resettlement of the Kashmiri Pundits in their homeland is a constitutional obligation for India for its intervention.
 
For a State to survive and progress, the territories in its corridor and contour are to be held in contiguity with complete sovereignty, which essentially is territorial integrity in political science. For India to be a nation with full sovereignty over its territory, the complete integration of Jammu & Kashmir is indispensable. Fortunately, we have done it through constitutional means, though with a few fulminations over procedural niceties. Given the international scenario on Crimea and Galon Heights, even military deployment to secure peace and complete integration cannot be objected to. Territorial integration to secure peace is being accepted as a norm in international law as a means to curb terrorism thriving on the platform of separatism.
 
Surgery by Constitutional means is now over. Political chemotherapy has to commence yet. Let us be hopeful for our Paradise on Earth to re-emerge with its full splendour and gaiety. 
 
(An advocate in High Court of Kerala)