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Saturday, September 19, 2020

Article 370 and Territorial Pluralism

As we celebrate the deity who gave up his throne to honour the promise made by his father, it may be time to adhere to the promise of federalism, autonomy that the Constitution made to Kashmir.

Written by Faizan Mustafa | Updated: August 5, 2020 8:22:32 pm
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On Wednesday, Prime Minister Narendra Modi laid the foundation stone of the much-awaited temple to Lord Ram in Ayodhya. Lord Ram not only abdicated his throne but also went on a 14-year exile so that his father could keep his promise. He adhered to the principle of “Pran Jaye per vachan na jaye” – one should keep a promise even if that means losing one’s life. As his devotees, should we not honour the commitments made in Kashmir’s Instrument of Accession (IoA) and the Constitution? Perhaps PM Modi will honour his commitment of early restoration of Kashmir’s statehood and make an announcement to that effect from the ramparts of the Red Fort on Independence Day.

As we mark the completion of one year of the abrogation of Article 370, let us revisit the historical context in which the Article was drafted, debated and adopted by the framers of our Constitution. That will enable us to understand that the Article was about honoring the promises made to Raja Hari Singh and the people of Kashmir.

“Federalism” is derived from the term foedus which means an agreement, compact or treaty. The territorial communities agree to join a union because the latter agrees to guarantee them a certain measure of autonomy. Federalism is thus nothing but a restraint of sorts on the Centre’s powers. It demonstrates what may be termed as territorial pluralism. The then Chief Justice of the US, Salmon Chase observed in Texas v. White (1868): “[T]he preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution, as the preservation of the Union…. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” (emphasis added)

Section 5 of Government of India Act, 1935 described India as a “Federation of States”. Such a State is one in which part of the authority and power is vested in the states while another part is vested in the Union or association of those states. Article 1 of the Constitution declares India as a “union of states” — not a union of Union Territories. Even Articles 3 and 4 do not give the Centre the power to convert a state into Union Territories.

PB Mehta writes: Ayodhya’s Ram temple is first real colonisation of Hinduism by political power

The original Article 370 was also based on the IoA’s promise of autonomy. At the time of Independence, there were two kinds of territories in India — British India, under the direct administrative control of the colonial state, and 580 princely states which had signed subsidiary alliance treaties with the British. The Indian Independence Act of 1947 divided British India into two countries — India and Pakistan. Section 7(b) of the Act stated that the suzerainty of His Majesty lapsed over princely states with the Independence Act and all these states were now sovereign (emphasis added) like any other free country. Section 6(a) of the Act said that an IOA was required for the princely states to join one of the two countries.

A state joining one of the two newly-independent could lay down its terms. The IoA was supposed to regulate and govern the distribution of powers between the Central government and the concerned princely state.

Kashmir was a princely state with a Hindu king and a Muslim majority population. Due to its strategic geographical location, Kashmir’s ruler Hari Singh initially decided to remain independent. But when there was an invasion by Afridis, tribesmen, and army men in plain clothes from Pakistan, Singh sought India’s help. In his letter to Lord Mountbatten on October 26,1947 he admitted “I have no option but to accede to India”. The then Governor General of India accepted the ruler’s request on October 27, 1947 without any qualifications, reservations or exceptions. In his response, he also promised a plebiscite and stated that “consistent with Indian government’s policy where accession is in dispute, the question of accession should be decided in accordance with the wishes of the people of the state”. A similar plebiscite was held in Junagadh on February 20,1948, which had a Muslim ruler with Hindu population. The ruler had opted for Pakistan.

The Schedule appended to Kashmir’s IoA gave Parliament the power to legislate only on matters related to defence, external affairs and communications. In Clause 5, Hari Singh explicitly stated 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.” Moreover, IOA’s Clause 7 stated that “nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India.” Clause 8 expressly stated that nothing in the IoA shall affect “the continuance of His sovereignty in and over the state’. (emphasis added)

In a letter to Sheikh Abdullah dated May 17, 1949, Jawaharlal Nehru, with the concurrence of Vallabhbhai Patel and N Gopalaswami Ayyangar (who drafted Article 370), wrote: “[I]t has been settled policy of Government of India, which on many occasions has been stated both by Sardar Patel and me, that the constitution of Jammu and Kashmir is a matter for determination by the people of the state represented in a constituent assembly convened for the purpose”. The IoA eventually had to be made part of the Constitution of India so that the powers of our Parliament vis-a-vis Kashmir are clearly delineated. Article 370 reflected the contractual rights and obligations of two parties.

The original draft of Article 370 was provided by the Government of Kashmir, which was modified after more than five months of negotiations between the state and the Centre. Finally, Article 306A (now 370) was introduced in India’s Constituent Assembly on May 27, 1949. Ayyangar moved the motion. He also reiterated that “though accession is complete, but we have offered to have plebiscite taken when conditions are created for the holding of a proper, fair and impartial plebiscite.” He also said if the accession is not ratified then “we shall not stand in the way of Kashmir separating herself away from India.”

Ayyangar reiterated this promise on October 17, 1949 when Article 370 was finally adopted by the Constituent Assembly. In response to Maulana Hasrat Mohani’s objection to the provision, Ayyangar replied that the provision was necessitated by the unusual and special conditions of Kashmir. He also declared that, as to matters that are not mentioned in IoA, “it is one of our commitments to the people and the 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.”

Even on matters on which the Centre can act with the concurrence of state, the consent of the latter’s Constituent Assembly was required. India’s Constituent assembly approved this arrangement in a show of rare unanimity with no one dissenting. Kashmir’s Constituent Assembly adopted its constitution on November 17, 1956 with its Article 3 declaring the state as an “integral part of the Union of India” and dissolved itself on January 26, 1957 giving permanence to the relationship envisaged in Article 370.

In fact, constitutions themselves are agreements or promises between the State and people. No one is claiming plebiscite though this was our promise. Successive central governments have been violating spirit of the original Article 370. The abrogation of Article 370 was in violation of our promise of autonomy. Nevertheless, the move would have been welcomed by the people of the region had it had led to more freedom and civil liberties. Even our courts failed to uphold the freedom of press and much talked about right to internet.

(The writer is an expert of constitutional law and Vice-Chancellor of NALSAR University of Law, Hyderabad. The views expressed are personal)

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