HISTORICAL BACKGROUND OF ARTICLE 370

ARTICLE 370 OF THE CONSTITUTION OF

INDIA AND THE CONSTITUTION OF JAMMU

AND KASHMIR

The Indian Independence Act 1947, gave birth to the two independent dominions of India and Pakistan and over 560 odd Indian Princely States obtained sovereignty and became absolutely independent.

All (roughly about 562) Indian States but three States (Junagad, Hyderabad and Kashmir) acceded to either Dominion.

The Indian States entered the Constituent Assembly of India on the basis that they would accede to the Union of India by suitable instruments, and that the internal Constitutions of these States would be framed by their own Constituent Assemblies. It was however soon realized that, if each Indian State or Union of Indian States was to frame its own Constitution without any guidance from the Centre, there might be such large differences among them as to result in a veritable jigsaw puzzle

A committee with B. N. Rao as chairman was appointed to prepare a model Constitution to serve as a guide in framing the Constitution for the respective States. However it was ultimately decided that the Constitutions of the States should also be framed by the Constituent Assembly of India and should form an integral part of the Constitution of India; and that an appropriate procedure should be decided upon for the ratification of the whole Constitution of India by the States and Unions along with the part relating to the internal Constitutions of theStates.

However, when the Drafting Committee began its work the problem of Federation with the Native States had ceased to exist, as the Native States which acceded with India merged in India, their former rulers retaining only their titular dignity and certain personal privileges.Regarding the State of Jammu and Kashmir vanous difficulties arose, which the Government of India had to consider carefully. Maharaja Hari Singh wanted that the accession of the State should be in respect of three subjects: Defence, Foreign affairs and Communications.

The Drafting Committee pointed out that under the provisions of the Draft Constitution all States in Part III would accept List I, List II, all provisions relating to fundamental·rights and the provisions relating to High Courts and Supreme Court. However, with regard to the State of Jammu and Kashmir the Government of India decided that the accession of the State should continue on the existing basis until the State could be brought at par with other States. For this purpose a special provision was made in respect of the State of Jammu and Kashmir.

The Ministry of States suggested for consideration of the Drafting Committee the following approach to this Question:

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

A special provision may be made in the Constitution to the effect that until 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 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 newConstitution.

Not only in the announcement of the Honourable Minister for States, but also in the address of Lord Mountbatten to the Princes, it had been made clear that accession on three subjects did not imply any financial liability on the part of the States and that there was no intention either to encroach on the internal autonomy or the sovereignty of the States or to fetter their discretion in respect of the new Constitution. It was against these commitments that the State Ministry had to approach the Rulers forthe integration of their States.

FRAMING OF THE CONSTITUTION OF JAMMU AND KASHMIR

The history of the State had developed in such a manner that the framing of a separate Constitution for the State had become almost inevitable. By virtue of the Instrument of Accession the Dominion of India now had jurisdiction only over three subjects, i.e. external affairs, defence and communications of the state of Jammu and Kashmir.

However, for the internal administration of the State an Interim Constitution for the State ofJammu and Kashmir became necessary and on 5th March 1948 a national Interim Government was formed. Maharaja Hari Singh by a declaration dated 5th March 1948 also declared that as soon as normal conditions were restored in the State a National assembly would be duly elected for the purpose of framing a Constitution for the State.

The task of adopting the New Kashmir Constitution fell upon the Praja Sabha. Yuvraj Karan Singh,son of Maharaja Hari Singh, delegated the power of legislation to the Constituent Assembly of Jammu and Kashmir, which was formed in September 1951 and took up the task of framing a Constitution for the State on 5th November 1951.

There can be no doubt regarding the legality of the framing of the Constitution of Jammu and Kashmir 1957. The right to frame a separateConstitution for the State was guaranteed to the people throughout and even Article 3 70 of the Constitution of India 1950 guarantees such right.By virtue of the right envisaged in the Constitution of India 1950 and the Proclamation of Yuvraj Karan Singh dated 1st May 1951 a Constituent Assembly that was duly elected on the basis of adult suffrage for the purpose of framing a Constitution for the State.

The Constitution(Application to Jammu and Kashmir) Order 1954, which settled the constitutional relationship of the State of Jammu and Kashmir, did not disturb the previous assurances as regards the framing of the internal Constitution of the State by its own people.

In October 1956 the Drafting Committee presented the Draft Constitution, which after discussion, was finally adopted on 17th November 1956 and the Constitution of Jammu and Kashmir 1957 was ultimately given effect to from 26th January 1957.

The Constituent Assembly of the State was a duly elected and sovereign body and hence the Constitution of Jammu and Kashmir 1957 is not a piece of ordinary legislation or even subordinate legislation. The State of Jammu and Kashmir thus acquired the distinction of having a separate Constitution for the administration of the State, in place of the provisions of Part VI of the Constitution of lndia, which govern all the other States of the Union.

FEATURES OF THE CONSTITUTION OF JAMMU AND KASHMIR

The State of Jammu and Kashmir is the only State within the Union of India having a separate Constitution and this gives rise to an apparently anomalous situation. Whether such a constitution can exist within the framework of the Indian Constitution is a debatable question and the validity of such a constitution would largely depend upon the interpretation of the various provisions of both the constitutions read in the light of one another.

However, in order to understand the position of the Constitution of Jammu and Kashmir 1957, in relation to the Constitution of India 1950 it is essential to study the salient features of the Constitution of Jammu and Kashmir 1957.

A constitution maybe defined as a body of fundamental rules, which regulate the activities of a State. Every State must have a constitution.James Bryce says, "The constitution of a State or Nation consists of those of its rules or laws which determine the forms of government and the respective rights and duties of it towards its citizens and of citizens towards the government.

It may be described as a basic and supreme la~ and is distinct from a statute. 3 In a pure Federal system the States or provinces are known to have their own constitutions. Even though it has been held by theSupreme Court of India that federalism envisaged in our Constitution is one of its basic features and is indestructible, none of the States have their own separate Constitutions except the State of Jammu and Kashmir.

The salient features of the Constitution of Jammu and Kashmir 1957 are:

Written Constitution: Constitutions of the world are either written or unwritten. The classification of Constitutions as written and unwritten is unscientific and is now considered to be outdated.

However, the Constitution of Jammu and Kashmir is a written Constitution having 158 Sections and 6 Schedules.Partly rigid and partly flexible:

A more scientific classification is to classify modem constitutions into Flexible and Rigid. The basis of this classification rests on whether the process of constitutional amendment is or is not the same as ordinary law-making process?

A flexible Constitution is one which is elastic and therefore can be changed easily. A rigid Constitution on the other hand, is one which is very difficult to change.

The Kashmir Constitution is partly rigid and partly flexible. Matters relating to defence, external affairs and communications along with those features specified in the provisoto section 147 of the Constitution of Jammu and Kashmir 1957, that is, sections 3 and 5 are considered to be rigid.

All other provisions of the Constitution of Jammu and Kashmir 1957 are considered to be flexible. Not repugnant to the Constitution of India: the Constitution of Jammu and Kashmir is complementary to Indian Constitution and not repugnant to the Constitution of India. The Constitution of India provides for the framing of the Constitution of Jammu and Kashmir.It is in conformity with the Constitution of India and is so evolved that a clash seems unlikely.However the Constitution of Jammu and Kashmir does create an anomaly as none of the other Indian States have a separate Constitution.