Constitutional Erosion in Kashmir

The erstwhile State of Jammu & Kashmir (J&K) enjoyed a special position in the political and constitutional landscape of the post-colonial Indian State. This is because, after India’s independence, the then princely State of Jammu & Kashmir, unlike other states, did not merge with the Indian Union but merely acceded to it. This can be made out from the terms of the Instrument of Accession (IoA), which the then ruler of the State, Maharaja Hari Singh, signed with the Dominion of India in 1947. The document specifically retains for the State the power to legislate on all matters except defence, external affairs and communication. Article 370 of the Indian Constitution subsequently codified the terms of accession in the Constitution of India. While the de-operationalisation (popularly referred to as ‘abrogation’) of Article 370 on 5 August 2019, and other associated moves by the Indian State, might be seen as the final nail in the coffin of the constitutional erosion in J&K, the central claim of this blog post is that the constitutional autonomy of the erstwhile State has rather seen a gradual erosion ever since the Constituent Assembly of the State was dissolved on 26 January 1957—the day the Constitution of J&K came into force.

Understanding the Autonomous Constitutional Position of the Erstwhile State of Jammu & Kashmir

Given its geographic and demographic complexities, J&K, unlike other close to 600 princely states, had acceded to the Indian Dominion under unique circumstances—something which the Union Home Minister P. Chidambaram, sixty years later, repeated on 6 August 2010 in the Upper House of the Indian Parliament. He observed: ‘the state poses a unique problem which requires a unique solution’ (Indian Express, 7 August 2010). This 2010 statement by an Indian Home Minister on the floor of the Parliament evinces that those unique circumstances have not changed to date. Apart from this, it particularly vindicates the now abrogated special constitutional arrangement between J&K and the Indian Dominion. Needless to say, both the IoA and Article 370 of the Constitution were an endorsement of such unique circumstances and the resultant pact between J&K and the Indian Dominion concerning the State’s retention of autonomy (the IoA mentions the word ‘sovereignty’) in matters other than defence, external affairs and communication.

It is because of these unique circumstances in which J&K acceded with the Indian Dominion, that the IoA and Article 370 resembled an agreement between the two contracting parties—two sovereign units.  A closer reading of the terms and conditions of the IoA and Article 370 makes it abundantly clear that it is the State of J&K which has empowered the federal government of India to legislate on defence, external affairs and communication while retaining the ‘sovereignty’ to legislate on other subjects, and not the other way around, making it a perfect case of asymmetrical federalism. What is more, Clause 5 of the IoA puts an embargo on the agreement’s alteration by any amendment of any law ‘unless such amendment is accepted by the ruler by an Instrument supplementary to the original Instrument’. Interestingly, no such supplementary Instrument was ever signed by the State of J&K. Against this backdrop, the Constituent Assembly of J&K adopted its own Constitution to further define the relationship between the State and the Government of India. However, a look back at the constitutional relationship between J&K and the Indian Union reveals that India’s federal government has reneged on the promise of autonomy made both in the IoA and in Article 370. The courts have been complicit in this project.

Erosion through Executive Fiat

As is clear from the Constituent Assembly debates, Article 370 was a de jure recognition of the political bargain between J&K and the Indian Dominion exemplified in the IoA and put the terms and conditions of the IoA on the solemn constitutional pedestal. The Article clearly set out a legal framework for the constitutional recognition of what was agreed upon in the IoA. In simple terms, Article 370 required ‘consultation’ with the State for the extension of central legislation on matters mentioned in the IoA. For the extension of legislation on other matters ‘concurrence’ was needed, and according to Clause (2) of the Article, the consent of the ‘Constituent Assembly of the State’ after it was convened in 1951.

This, in a way, recognised the exceptionalism in terms of the constitutional relationship between J&K and the Indian Union. But read this: ‘In the years following Partition, forty-seven presidential orders extended 260 of the Indian Constitution’s 395 Articles to Kashmir’. Apart from this, ‘ninety-four out of ninety-seven entries in the Union List were extended to the State’. This is alarming, and it can safely be argued that Article 370, as it stood prior to 5 August 2019, had already been hollowed out and was an empty shell. Yet, it was symbolic of the Kashmiri sentiment vis-a-vis its promised special constitutional position. Part of the reason for the symbolism was Article 35A of the Indian Constitution as applicable to J&K and introduced by the Constitution (Application to Jammu & Kashmir) Order, 1954 (hereinafter the Basic Order). The Article was a continuation of the pre-independence definition of permanent residents and an epitome of the autonomy of J&K as it limited employment in the State government, acquisition of immovable property and settlement in the State, scholarships and other government aid to permanent residents.

This makes for strong evidence that a method for the constitutional erosion of Kashmir’s autonomy was engineered by none other than its architects from the Dominion side. One of the co-architects of Article 370, Prime Minister Jawaharlal Nehru, declared in the Lok Sabha on 27 November 1963 that:

‘Article 370 has been eroded and Kashmir stands fully integrated. We feel that this process of gradual erosion of Article 370 is going on. Some fresh steps are being taken and in the next month or two, they will be completed. We should allow it to go on’.

Later, on 4 December 1964, Nehru’s colleague and the then Home Minister Gulzari Lal Nanda went a step ahead and explained in the Lok Sabha:

‘The only way of taking the Constitution of India into Jammu and Kashmir is through the application of Article 370…. It is a tunnel. It is through this tunnel that a good deal of traffic has already passed and more will’.

Nanda added: ‘what happens is that only the shell is there. Article 370, whether you keep it or not, has been completely emptied of its contents. Nothing has been left in it.’

Nanda added that while the elaborate procedure laid down in Article 368 would have to be followed for any normal constitutional amendment, for the State of J&K, all that was needed was a mere executive order by the President under Article 370. Needless to say, the federal government had already passed a series of executive orders extending various provisions of the Constitution using the ‘tunnel’ of Article 370. In the years that followed, Nanda’s interpretation of Article 370 became the norm. As a corollary, even the State’s Constitution was superseded by such executive orders. In 1966, by way of the Constitution of Jammu & Kashmir (Sixth Amendment) Act, 1965, the ‘Sadar-i-Riyasat’ (President of the State), who was elected by the State legislature and on whose assent the State Constitution could be amended, was replaced by a Governor nominated by the Centre. This allowed the central government to amend not just the Indian Constitution but also the State’s Constitution. The nomenclature of ‘Prime Minister’ met the same fate and was changed to ‘Chief Minister’ by the same amendment Act. Then came the blow on 23 July 1975 when the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1975 was passed, which barred the State legislature from amending the State Constitution on matters in respect of the Governor, the Election Commission, and the composition of the Legislative Council.

Legally speaking, India’s federal government has used Article 370 to expand its writ in J&K. Two prominent events prove the point. First, the Indian Parliament had to amend the Indian Constitution multiple times to extend the President’s rule imposed in Punjab in 1987 beyond one year. In J&K, however, the same result was achieved from 1990 to 1996 by merely passing executive orders under Article 370. Second, in a similar move, the application of Article 249 of the Indian Constitution, which confers the power on the Parliament to make laws on entries in the State list, was extended to J&K without a resolution by the State Assembly, let alone the Constituent Assembly as stipulated by Article 370 (2). Ironically, ‘concurrence’ for this was rendered by the Centre’s own nominee, Governor Jagmohan. Therefore, ‘J&K has been put in a status inferior to that of other states’, argues A. G. Noorani, a leading constitutional law scholar, in his book ‘Article 370: A Constitutional History of Jammu and Kashmir’.

A look back at the presidential orders passed under Article 370 post-dissolution of the Constituent Assembly of the State clearly shows that such orders have been passed in violation of the framework under the Article. In the absence of a Constituent Assembly of the State from 26 January 1957 onwards, this essentially renders all the executive orders except the Basic Order unconstitutional. But the damage was already done.

The Complicity of the Courts

The judiciary has contributed equally to the hollowing out of Article 370. Although highlighting that the Article is a permanent provision in the Constitution on several occasions, the Indian Supreme Court has time and again legitimised executive fiat even though the J&K’s Constituent Assembly, which was the only forum competent to give the concurrence for presidential orders, had ceased to exist. This happened, for instance, in Sampat Prakash v State of J&K (1968). The Court, ignoring its own 1959 ruling in Prem Nath Kaul v the State of J&K, gave a problematic interpretation to the requirement of ratification by the Constituent Assembly and held that:

‘Article 370(2) only refers to the concurrence given by the Government of the State before the Constituent Assembly was convened and makes no mention at all of the completion of the work of the Constituent Assembly or its dissolution’.

While stating that Article 370 should continue since the Constituent Assembly was dissolved without making any recommendation required under Clause (3) for its abrogation, the Court held that the ‘President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify’. The Court further observed: ‘we must give the widest effect to the meaning of the word ‘modification’ used in Article 370(1) and in that sense it includes even an amendment’. Such sweeping conferment of discretion on the executive to extend the provisions of the Indian Constitution to J&K legitimised the decay of J&K’s constitutional autonomy.

In Prem Nath Kaul, the Court had surprisingly emphasised the requirement of the ‘ratification by [the] Constituent Assembly’ for the extension of any provision of the Indian Constitution to the State. The Court observed: ‘the Constitution makers were obviously anxious that the relationship between J&K and [the] Government of India should be finally determined by the Constituent Assembly of the State itself’. This interpretation was ignored by the Supreme Court in yet another case, Mohammed Maqbool Damnoo v State of J&K (1972), in which the Court did not differentiate between an elected Sadar-i-Riyasat and an appointed Governor.

Yet, interestingly, in a 2015 judgement, the J&K High Court described the Constitution of J&K as having ‘sovereign character’ and the assembly of the State as having the ‘sovereign power to make laws concerning the rights of its permanent residents about their immovable properties’. However, in State Bank of India v Santosh Gupta (2017), the Indian Supreme Court overturned the judgement, calling it ‘wholly incorrect’. The Court observed, ‘the State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India’. This clearly flies in the face of the IoA which specifically mentions the ‘sovereignty’ of J&K.

The Indian Supreme Court has largely approved the executive fiat in hollowing out Article 370 or has been a fence sitter. This is amplified by the fact the Indian Supreme Court is yet to list the petitions challenging the August 2019 unilateral de-operationalisation of Article 370 by the federal government for hearing, thereby essentially favouring the government.

Conclusion

The federal government’s de-operationalisation of Article 370 on 5 August 2019 may be seen as the tip of the iceberg. The steady riot of erosion has been afoot ever since the Constituent Assembly of the State dispersed on 26 January 1957. What is strikingly common, however, in the executive order of 2019 and others preceding it, is that the federal government has conveniently ignored the fact that the Constituent Assembly, on whose final say the relationship between J&K and India rested according to Clauses (2) and (3) of Article 370, no longer existed. The outcome of the petitions pending before the Supreme Court of India for the past three years and the fate of J&K’s constitutional position remain to be seen.