Dr. K. L. Bhatia
Why Jammu Kashmir State has been groping in past tense, present imperfect and future indefinite for the past seventy years? Is the State of Jammu Kashmir in a mess? Who has created this mishmash? Are Articles 370, 35A and CO 1954 with some vision and mission? Do the separate constitution provisions appear to be worse than the partition of United India 1947? These constitutional provisions acclaimed to be a bridge between India and the State rather seem to be void/gulf between India and the State thus a challenge to the fabric of cooperative federalism. Those provisions even create a wedge between three regions of the State, namely, Jammu, Kashmir and Ladakh, because of the limited and bias approach about Kashmir centric politicking by the divisive and discordant dissonant voices. How could Article 370 empower the President of India to extend the provisions of the Constitution of India to the State of JK with such modifications and exceptions as he may deem fit? Does it not amount to abdication and effacement of Constituent Power of the Parliament? Delegation of constituent power to any other authority appears to destroy the basic structure, the foundational fundamental, of the Constitution. How could the President exercise constituent power by adding Article 35A in the Constitution by CO 1954? Does it not amount to ushering the Parliament’s power under Article 368? Does it not destroy the basic structure of the Constitution while exercising the essential constitutional functions by the executive head which otherwise belong to the Parliament and delegation of essential constitutional functions are constitutionally impermissible?
The reasons are not far to seek. Challenges to the legality of accession of Jammu Kashmir State to the Union of India make accession to be or not to be. Panting and wheezing over it has many dimensions of internal and external security strife. Accession of Jammu Kashmir to India legally and constitutionally is final and irrevocable. Accession was not conditional. Accession was on similar grounds inasmuch as it was common for all the Indian Princely States. Only those who have contrived mindset have been mischievously spreading that Accession was not final. They have been fueling the fire with the sole agenda that Kashmir is a disputed issue and as such seeking a remedy by involving a third party intervention. Thus, the problem is not with Jammu Kashmir rather it is in Kashmir.
There ought not to be made scarecrow about Articles 370 and 35A. These Articles could not have made inroad ostensibly in the Constitution of India had there been a proper recourse to the Policy Statement of 15 July 1946 of the then Maharaja Hari Singh taken in earnest perspective, namely, “Naturally we are interested in the progress of India as a whole. My views on the subject are well known and on more than one occasion I have given expression to them. They are briefly that we look forward to taking our due place in the new constitutional structure of India, whereby we hope that India will be able to take its proper place as a great nation …” From the precept of it, Hari Singh had never aspired and desired for a separate provision in the Constitution of India or a separate constitution for the State which he acceded to the Union of India by an Instrument of Accession on 26 October 1947. The Instrument of Accession was unconditional since it did not contain any clause like Articles 370, 35A, CO 1954, and a separate constitution for the State. Then how did these provisions come to be when those were neither part of the Draft Constitution nor Instrument of Accession? It was a political arrangement between the then Prime Minister of India Pt. Jawaharlal Nehru and a leader in the Kashmir Valley — having no base in Jammu and Ladakh regions — Sheikh Mohd. Abdullah.
In all propitious Hari Singh wished to remain with India as India’s integral part.
From the precept of constitutional patriotism it appears that the Drafting Committee of the Constitution of India in Independent India did not desire of Indian States’ (Princely States around 560) metamorphosis, including the State of Jammu Kashmir, because federalism in the new India under the Independent Constitution would not work if there existed among the units both monarchical and democratic governments — the two were incompatible in democracy. Any scarecrow over instrument of accession will be a mere perch and not their terror. The two pre-independent Acts 1935 and 1947 that conceived the notion of instrument of accession stand repealed from the statutory books of India in Independent India vide Article 395, and as such the instrument of accession will be a thing of the past in the new Constitution structure-culture. Thus, those who challenge it are groping in the dark.
There are some glaring defects in Article 370. First, Article 238 that related to the States in Part B of the First Schedule has since lost its utility and relevance as it stands repealed from the textual Constitution of India by Constitution Seventh Amendment Act, 1956 w.e.f. 1.11.1956 after the Re-organisation of the States. Its continuance speaks about the perpetuation of constitutional wrong. Second, the soup and sauce of the words ‘instrument of accession’ figuring in the language of Article 370 could have been evaporated with the enforcement of the Constitution of Democratic Republic of India on 26 January 1950 since ‘instrument of accession’ is disused now and is a matter of past history that is dead history inasmuch as dead wood. Third, the continuance of the words ‘Dominion of India’ in the language of Article 370 smells rat. Dominion (Dynasty) and democracy cannot go together; they are sworn enemies to each other; they are not on talking terms. Dominion is outmoded. Fourth, reference to ‘Constituent Assembly of the State’ in the language of Article 370 could not have been permeated to be its part after the Constituent Assembly of the State had finished its task by making the State of Jammu Kashmir “is and shall be an integral part of India”. Reference to the Constituent Assembly of the State seems to be superfluous now, because the State Legislature now performs the constituent power. Fifth, “Explanation” in the house of Article 370 is infructuous, redundant, and superfluous in the present content and context.
It would be appropriate, in the opinion of the author, to recast the language of Article 370 by freeing the textual Constitution of India from the political notorieties shrouding around Articles 370 and 35A by the process of Article 368 which may be as follows:
“Notwithstanding anything in this Constitution, the President may by order made with respect to the State of the State of Jammu Kashmir, provide for any special responsibility of the Governor for —
(a) The establishment of separate development boards for difficult terrain areas, such as Leh, Kargil, and the rest of the State, as the case may be, with the provision that a report on the working of each of these boards will be placed each year before the State Legislative Assembly ;
(b) The equitable allocation of funds for developmental expenditure over the said terrain areas, subject to the requirements of the State as a whole ; and
(c) An equitable arrangement providing adequate facilities for technical education and vocational training, and adequate opportunities for employment in service under the control of the State Government, in respect of all the said areas, subject to the requirements of the State as a whole. ”
In the backdrop of this process, the aberration of separate constitution of the State of Jammu Kashmir will be erased if the State Legislature revisits the State constitution in its constituent power with constitution patriotism fervor with minimal expression:
“WE, THE PEOPLE OF THE STATE OF JAMMU KASHMIR, having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty-sixth day of October, 1947 to further define the existing relationship of the State with the Union of India that the State of Jammu Kashmir is and shall be an integral part of the Union of India, further affirms that the executive, legislative and judicial power of the State shall be to the extent to all matters under the provisions of the Constitution of India, and, further reaffirm our due place in the constitutional structure of India adopted and enacted on 26 November 1949 and enforced on 26 January 1950”.
Forethought as well as foresight shall alone be growing towards a closer affinity of the State with the Indian Union bereft of constitutional frictions in Centre-State Relations.
It shall bring wholesale end to CO 1954 of May 1954 including Article 35A. Article 35A is the rarest example of invisible hands of invisible State because it was added not by the constituent power of the Parliament of India under Article 368; it was an act of usurpation of constituent power of Parliament. Therefore, Article 35A is a mishmash of the textual Constitution of India. Article 35A creates special rights and privileges — acquisition of immovable property, public employment in the State, scholarships and re-settlement in the State — for permanent residents of the State, but at the same time it deprives the women permanent residents of the State and their children the benefits of special rights and privileges if they happened to marry with non-permanent residents, of course, citizen of India, and this happens without the authority of law; similar is the fate of WP refugees who are homeless in their own home irrespective of being Indian Nationals. A permanent resident of the State being a citizen of India can acquire immovable property anywhere in India including scholarships in pursuit of education and public employment, but a citizen of India being a non-permanent resident of the State can’t acquire immovable property in the State or scholarships in pursuit of education. What an absurdity and irony of legal fiction emanating from invisible State action!
(The author is former Dean Faculty of Law and Founder Director The Law School University of Jammu)
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