• A History of Article 370

    AG Noorani

    August 5, 2019

    Article 370: A Constitutional History of Jammu and Kashmir by AG Noorani is a collection of documents on Article 370 of the Constitution of India that contains "temporary provisions" with respect to the State of Jammu and Kashmir. The book details the five-month long negotiations that preceded its enactment on 17 October 1949. It talks about the importance of the article, how it was eroded and the relationship of the State with the Union of India. The book covers the period from 1946 to 2010. From Jammu and Kashmir’s accession to India in 1947 to the various negotiations thereafter, including Sheikh Abdullah’s arrest to the framing of the Constitution of Jammu and Kashmir, and the replacement of Sadar–i–Riyasat, this book examines in detail the little-known constitutional history of the state.

    1(a). Letter Dated 17 May 1949 by N. Gopalaswami Ayyangar to Vallabhbhai Patel Enclosing Jawaharlal Nehru’s Draft Letter to Sheikh Abdullah for his Approval:
    Durga Das (ed.), Sardar Patel’s Correspondence 1945–50, Navajivan Publishing House, Ahmedabad, 1971, pp. 275–309
    (The chapter Article 306A was not enclosed…)

    New Delhi
    17 May 1949

    My dear Sardarji,

    Herewith the draft. Jawaharlalji has seen and approved of it.

    2. Will you kindly let Jawharlalji know direct as to your approval of it? He will issue the letter to Sheikh Abdullah only after receiving your approval.

    (p.51) Yours sincerely,

    N. Gopalaswami
    The Hon’ble Sardar Vallabhbhai Patel
    New Delhi


    Enclosure
     

    New Delhi
    18 May 1949

    My dear Sheikh Sahib,

    In the course of the talks at Sardar Patel’s residence on 15 and 16 May 1949 between some of my colleagues and me and you and your colleagues, important issues raised by you in regard to the future of Jammu and Kashmir State were discussed.

    2. Among the subjects that were discussed were: (i) the framing of a constitution for the State; (ii) the subjects in respect of which the State should accede to the Union of India; (iii) the monarchical form of government in the State; (iv) the control of the State Forces, and (v) the rights of the citizens of the State to equality of opportunity for service in the Indian Army.

    3. As regards (i) and (iii), it has been the settled policy of the Government of India, which on many occasions has been stated both by Sardar Patel and me, that the constitution of Jammu and Kashmir State is a matter for determination by the people of the State represented in a Constituent Assembly convened for the purpose. In the special circumstances of the State of Jammu and Kashmir, the Government of India have no objection to the Constituent Assembly of the State considering the question of the continuance of the assocation of the State with a constitutional monarchy.

    4. In regard to (ii), Jammu and Kashmir State now stands acceded to the Indian Union in respect of three subjects, namely, Foreign Affairs, Defence and Communications. It will be for the Constituent Assembly of the State, when convened, to determine in respect of what other subjects the State may accede.

    5. Regarding (iv), both the operational and administrative control over the State Forces has already, with the consent of the Government of Jammu and Kashmir State, been taken over by the Indian Army. (p.52) The final arrangements in this connection, for the duration of the present emergency, including financial responsibility for the expenditure involved, were agreed to between us on the 16th inst.

    6. As regards (v), the citizens of the State will have equality of opportunity for service in the Indian Army. Under Article 10 of the draft of the new Constitution, as passed by the Constituent Assembly of India, equality of opportunity for employment under the State, including employment in the Indian Army, is declared to be amongst the fundamental rights of all Indian citizens.

    7. I trust that the Government of India’s position, as stated above, will give you the clarification that you have asked for.

    Yours sincerely,
    Jawaharlal Nehru
    The Hon’ble Sheikh Mohammed Abdullah
    Srinagar

    […]

    1(c). Amendments Proposed by the Ministry of States of the Government of India
    Amendment Proposed to be Incorporated in the Law Constitution by the Ministry of States, Indian Constitutional Document, Munshi Papers, Bharatiya Vidya Bhavan,
    Bombay, 1967, Volume II, pp. 473 and 476–7

    The Government of India have also carefully considered the position of Jammu and Kashmir State in the context of their international commitments. Ordinarily, they would have liked to treat this State like other States in the category of Part III States. The main difficulty in adopting this procedure is that the Premier of this State has definitely expressed his inability to extend the content of the accession of the State till the Constituent Assembly of the State has taken a decision in the matter. Against the present background, he is most anxious that the accession of the State should continue in respect of three subjects of Defence, Foreign Affairs and Communications only. During the course of the discussion at the Drafting Committee meeting, it was pointed out that the scheme embodied in the Draft Constitution visualised that all States in Part III would accept List I and List II and in addition accept all provisions relating to fundamental rights and the provisions relating to High Courts and Supreme Court. It was further pointed out that if the quantum of accession of Kashmir State was not extended, difficulties would arise in respect of the citizenship of the subjects of Kashmir State as also in connection with the operation of the provisions regarding fundamental rights and Supreme Court in respect of this State. The (p.54) Government of India have considered the matter in its various aspects and are of the opinion that in the view of the present peculiar situation in respect of Jammu and Kashmir State it is desirable that the accession of the State should be continued on the existing basis till the State could be brought to the level of other States. A special provision has therefore to be made in respect of this State on the basis suggested above as a transitional arrangement. It may be added that ‘naturalisation’ is already covered by the existing Instrument of Accession signed by the Ruler of the State and this may perhaps meet the requirements in respect of citizenship of the subjects of this State.

    The Ministry of States suggest for the consideration of the Drafting Committee the following approach to this question:—

    1. Jammu and Kashmir State may be treated as part of the Indian territory and shown in States specified in Part III of Schedule I.

    2. A special provision may be made in the Constitution to the effect that until the Parliament provides by law that all the provisions of the Constitution applicable to the States specified in Part III will apply to this State, the power of the Parliament to make laws for the State will be limited to the items specified in the Schedule to the Instrument of Accession governing the accession of this State to the Dominion of India or to the corresponding entries in List I of the new Constitution.

    […]

    Article 370 (1) (d) is not and cannot just be one way stream. It has been brought into existence so as to invest the Constitution with requisite resilience in order to respond to ground situations warranting solution so that the relationship between the state and Union is placed on an even keel in which aspirations of the people of the state would find satisfactory expression. There is no legal impediment, as is evident from the pronouncements of the Supreme Court in reversing the dilution made to the autonomy of the state. Indeed, none can be urged as causes omissus cannot be read into the constitutional text which must be interpreted to give full and wide meaning to its words for it must endure through generations. The issue in that state is not whether elections should be held or not. An election just for the sake of an election will be a farcical exercise which will fail to carry conviction with the people and therefore, not ensure their participation.

    It will be another short-sighted step in pursuit of Centre’s obduracy in refusing to deal with a political problem in keeping with the principles of secularism, democracy, federalism and solemn obligations under the Delhi Agreement.

    […]

    Four features of these terms of reference deserve particularly to be noted. First, implicit in the exercise is acknowledgement of the fact that the State’s autonomy, guaranteed by Article 370 of the Constitution of India, was eroded in breach of its provisions, of those of the Instrument of Accession to which Article 370 gave full recognition, of the Constitution (Application to Jammu and Kashmir) Order, made under Article 370, by the President of India on January 26, 1950, extending to the State specified provisions of the Constitution of India which had come into force on the same day, and of the Delhi Agreement of July, 1952. It is this erosion which had necessitated ‘the restoration of (p.422) autonomy’ to the State. As we shall point out, till now, 94 of the 97 entries in the Union List have been applied to the State. 26 entries in the Concurrent List have also been applied, 6 more with modifications. Even in 1954 the Concurrent List did not apply at all. The process did not cease. It was accelerated. The Constitutional relationship that was established was contrary to and went far beyond the Delhi Agreement.

    Secondly, if this exercise is to be worthwhile, it would be necessary to devise appropriate effective constitutional safeguards against any repetition of that unfortunate phase of erosion in future. Any Constitutional arrangement that is evolved to this end must have finality and be ‘inviolable’.

    Thirdly, the exercise has a definite limit and a clear objective. It seeks in effect the full enforcement of the historic Delhi Agreement concluded between the Prime Minister of India, Pt. Jawahar Lal Nehru, and the Prime Minister (as he was then called) of the State, Sheikh Mohammad Abdullah, the two foremost architects of the State’s accession to the Union of India. Implementing their mutual pledges in that Agreement is, at once, the bottom line and the high ideal we have placed before ourselves.

    […]

    Regional diversities are reflected in special provisions with respect to the States of Nagaland (Article 371-A), Sikkim (Article 371-F), Mizoram (Article 371-G) and Arunachal Pradesh (Article 371-H) which confer ‘special status’ on these States. There are other ‘special provisions’ with respect to some States concerning certain areas within those States, for example, Article 371 relating to the states of Maharashtra and Gujarat. In respect of Nagaland and Mizoram, Parliament is barred not only from altering religious or social practices but also ‘customary law and procedure’, ‘administration of civil and criminal justice’ according to such law, and ownership and transfer of land.


    These are excerpts from Article 370: A Constitutional History of Jammu and Kashmir by AG Noorani and published by Oxford University Press. Republished here with permission from the publisher.

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