On 5 August 2019, Home Minister Amit Shah announced before the Rajya Sabha, the abrogation of Article 370 of the Indian Constitution. 1 Article 370 of the Indian Constitution, defined the nature of relationship that India shared with Jammu and Kashmir. Naturally, the abrogation of the Article, which, the official gazetted publication stated shall come into force at once caused some varied reactions and extensive debates among the people at large. However, like most of our opinions about Kashmir and its politics, the understanding of the constitutional history of Article 370 of the Indian Constitution remains extremely shallow and uninformed. Kashmir is our favorite topic for all debates on Indian history, nationalism, terrorism, conflict and politics. Yet, Kashmir has an extremely layered and complicated history, which popular narratives overlook. Irrespective of the stand one takes on these issues, we often tend to intertwine the subjects of Indian (and South Asian) constitutional history and jurisprudence, international law and politics. As a result, gravity over the persisting issues regarding the crisis in Kashmir are thoroughly convoluted. It is necessary, therefore, to segregate the issues on the basis of History of Kashmir, constitutional history and debates of India and international law, in order to contextualize and provide texture to our conversations on Kashmir.

During the British Rule, the Indian Subcontinent was divided into two administrative systems. One was the Province of India and the others were the Princely States. The British governed the provinces directly. However, the Princely states were independent of the province and were administered by the rulers with their honorary titles like the Raja, Maharaja etc. who were subjects of the British Empire. On 16 May, 1946, through the British Cabinet Mission’s Statement, Britain declared that with the attainment of Independence, the relationship that existed between the rulers of the Princely States and Britain would no longer be possible. The statement also made it absolutely clear that the authority over the Princely States could neither be retained nor transferred to the new Government in India by Britain. Britain had reached this decision after consultation with the Princely States, who were willing to co-operate and facilitate the development of a new India. The precise form in which the States would engage with India, the Statement clarified was a matter of negotiation during the development of the new constitutional structure and by no means were these negotiations going to be identical for all States. Therefore, through this Statement, it was clear that the decision about the governance of the Princely States, post Indian independence would be left completely to their discretion without any compulsion to join the Independent Indian Government. The Government of India Act of 1935, that was adopted on 15 August 1947 by the Indian Order (Provisional Constitution) 1947, defined the clear law that shall govern the Accession of States to India. It was clear that all terms of the accession would be governed by the instrument of accession, drawn by the rulers of the respective States. Negotiations between the different States began. While the foundation of a new Pakistan caused the en masse migration for partition, the process of assimilation of the Princely States also began. They had the choice to accede either to India or Pakistan. Maharaja Hari Singh, the ruler of Kashmir was undecided about which dominion he wanted Jammu and Kashmir to accede to. He signed a Standstill Agreement with Pakistan, by which the ongoing economic and administrative relations between Jammu and Kashmir and Pakistan would continue as before. India insisted on further discussions.

In 1947, India was Partitioned into two nations -India and Pakistan. As the negotiations, conflict and conversations amidst the Princely States and these two nations continued and they tried to define the new identities, Kashmir had its own questions to resolve. In 1846, by the Treaty of Amritsar between the Dogra dynasty and the British, the British government installed the Dogra dynasty as the ruler of Jammu and Kashmir. Maharaja Hari Singh took over the rule of Jammu and Kashmir in 1925. Under the Dogra rule, the Kashmiri Muslims faced tremendous surveillance, discrimination and oppression. Thy were denied access to education and excluded from civil services. Muslims, under the Dogra rule were not allowed to participate in political activities without permission. The status of the farmers were reduced to that of the serfs without any ownership of land. These factors contributed to the eruption of a movement against the autocratic rule of the Dogra kings and the legitimacy of the Treaty of Amritsar. There persisted an anti feudal agitation and as the Kashmiri Muslims returned with foreign education,they began to demand the end of autocratic rule and the formation of a democratic Constitution based upon the principles of liberty, equality and freedom. And thus began the Quit Kashmir movement in 1937 and Sheikh Mohammad Abdullah emerged as the leader of this movement. Sheikh Abdullah’s vision was clear. He demanded a secular democracy and abolition of autocracy. Jawaharlal Nehru, who at that point was also a prominent leader from India with similar ideologies became a natural friend and adviser of Abdullah. In fact, when Abdullah was arrested by the Hari Singh government, along with over 300 others, for their activism, Nehru visited Kashmir and defended Abdullah with lawyers that he had brought along. In his detailed statement from Delhi, Nehru condemned the oppression and warned against a shameful repetition of the Jalianwalah Bagh tragedy.

With the formation of Pakistan and India, post partition, a power struggle began amidst the newly decolonized States. It became important for both the nations to have as many Princely States join them as possible, in order to maintain their territorial influence and power. Besides, Kashmir was one of the most important States. To India, Jammu and Kashmir was significant in order to demonstrate the integrity of their constitution. Having a Muslim Majority State within a Hindu majority India could be the constitutional message of secularism and a pluralist democracy to the world, especially to Pakistan. And to Pakistan, Jammu and Kashmir, a Muslim majority State was a natural alliance. Besides, with the proximity of Jammu and Kashmir with Russia and China, Kashmir was an extremely important State in geopolitics for both the nations. However, Maharaja Hari Singh was yet to accede to either of the nations while the movement against autocracy in Jammu and Kashmir continued and intensified. The independence and partition of India had made the situation much more complicated as the Quit Kashmir movement was far from reaching their aim. There was still a long way until the people of Jammu and Kashmir could determine their sovereignty and draft a comprehensive Constitution with the ideologies of secularism and self rule. Despite the Standstill Agreement, Pakistan cut off the supplies of food, petrol and other essential elements to Kashmir, in order to pressurize them to accede to Pakistan. Free transit of travellers between Kashmir and Pakistan was interrupted. Military pressure continued on the borders. Raja Hari Singh, wrote to the Governor General of India, Lord Mountbatten. The letter informed of an emergency in Jammu and Kashmir and that there had been attacks from Pakistan. In order to protect the land and honour of the people of Jammu and Kashmir, the Maharaja sought immediate military aid from India. He also stated that he had invited Sheikh Abdullah to form an interim government. Sheikh Abdullah was the leader of the All-Jammu and Kashmir National Conference, which was the political party that commanded the widest support in Jammu and Kashmir. The Instrument of Accession of the State of Jammu and Kashmir, signed by Maharaja Hari Singh on 26 October, 1947, clearly stated that the Government of India could govern and make laws for Jammu and Kashmir only under the subjects of Defence, External Affairs and Communications. While accepting the accession, the Government of India made it very clear that the accession would be regarded as purely provisional until the will of the people of the State could be ascertained.

Abdullah had five broad concerns regarding the constitutional relationship of India with Jammu and Kashmir. These were: i) framing of the Constitution of the State; ii) The subjects in relation to which the State shall accede to the Union of India; iii) the monarchical form of government in the State; iv) Control of the State Forces; v) the rights of the citizens of the State to equality of opportunity for service in the Indian Army. Sheikh Abdullah raised these issues before Sardar Vallabhai Patel along with Jawahar Lal Nehru on 15 and 16 May 1949. In his reply, dated 18 May, 1949, Nehru clarified each of the points. With regard to points one and two, Nehru wrote that the constitution of Jammu and Kashmir State was a matter of determination by the people of Kashmir State, represented in a constituent Assembly convened for the purpose. Regarding the second point, Nehru clearly stated that the State of Jammu and Kashmir stood acceded to the Indian Union in respect of the three subjects of defence, external affairs and communication only. It would be for the Constituent Assembly, when convened, to determine in respect what other subjects the state may accede. Regarding iv), both the operational and administrative control over the State forces had already been taken over by the Indian Army. On point v), Nehru quoted Article 10 of the then draft Indian Constitution, which guaranteed equality of opportunities to all, including in the Indian Army, which was a fundamental right of all Indian citizens. Further, during the debates in the Constituent Assembly, on 27 May, 1949.

N. Gopalaswami Ayyangar (Madras;General), explained the Article 306 A of the Draft Constitution (Article 370 of the Indian Constitution). He said that the accession of Kashmir was complete. However, the dominion of India had offered a fair and impartial plebiscite when the conditions are created, in order to give an opportunity to the Kashmiri people to determine their statehood and express their will as to whether they wish to ratify the instrument of accession or go against the continuance of the accession. N. Gopalaswami explained that under the Indian Independence Act, when a State accedes and subsequently wishes to withdraw, it could not do so without the consent of the dominion. On behalf of the Dominion of India, he promised that their commitment is simply this, that if and when a plebiscite is against India, then we shall not stand in the way of the wishes of the people of Kashmir being given effect to , they want to go away from us. On 17 October 1949, Mr. Gopalaswami Ayyangar provided a further detailed exposition of the understanding of Article 370 of the Indian Constitution. He elaborated about the special provisions and autonomy that Kashmir would have through the Article with limited interference from the dominion of India. The obvious question that he faced was the reason for this discrimination as compared to the other States that acceded to the Dominion of India. The answer was that the discrimination was because of the special conditions in Kashmir. Ayyangar said that Kashmir was not yet ripe for that kind of integration. These special conditions were that there was an ongoing war within the limits of the Jammu and Kashmir State. There was a ceasefire agreed to at the beginning of the year, which was still on. Part of the State was still in the hands of rebels and enemies. There was a pending issue about the determination of Jammu and Kashmir before the United Nations. The situation was unstable and volatile and until normal life was restored, no administrative decision could be complete about Kashmir. In his reply Ayyangar reiterated the promise of a plebiscite and the promise of self determination to the Kashmiri people.

After strong negotiations between Abdullah and the Dominion of India and small alterations to the original draft, they agreed on the terms of Article 370. Clearly, Article 370 of the Indian Constitution outlined the relationship between India and Kashmir that flew on the basis of the instrument of accession. While addressing the people of Kashmir, through the Constituent Assembly on 05 November, 1951, Sheikh Abdullah detailed the reasons behind the choice of acceding to India, the expectations of Kashmir from India and the possible threats that could arise to those expectations in the future years. Abdullah gave a message of Unity amongst the Hindus, Muslims, Buddhists, Harijans and Sikhs, who he remembered had fought in unity for freedom against tyranny and oppression. He explained the reasons behind the choice of acceding to India instead of Pakistan were primarily because of the respect towards the principles and values of the Indian Constitution. He said that the Indian Constitution had set before the nation the goal of a secular democracy based upon justice, freedom and equality. Abdullah acknowledged the ideologies of the Indian National Congress which supported the cause of the State’s peoples’ freedom. The natural reason for the accession to India, Abdullah said was the absence of any danger of revival of feudalism and autocracy. The possible disadvantages to the accession, Abdullah feared was the gain of a dominant hand of any communal organization in the Government of India and the ideals of equality of the Congress were eclipsed to give way for religious intolerance.

The clear jurisprudence behind Article 370 of the Constitution was the guarantee of autonomy and choice of the Kashmiri people. This choice was to first reflect through the decisions of the Constituent Assembly while they drafted the Constitution for Jammu and Kashmir and later through a plebiscite when the situation in Kashmir was normalised. The accession of Jammu and Kashmir to India was complete but the transitional relationship of Kashmir with India was dependent on the implementation of the spirit of Article 370. However, contrary to all promises of autonomy and choice that India made to Kashmir, the erosion of Article 370 became a regular practice by the Government of India. Article 370 had six provisions within it which broadly were: i) Separate Constitution of Jammu and Kashmir ii) The Indian Parliament’s legislative power was reduced to the three subjects of external affairs, defense and communication. iii) Prior concurrence of the State government was necessary to extend the subjects upon which the Indian Parliament could legislate iv) The concurrence of the State government was provisional and it had to be ratified by the Constituent Assembly. v) The State government’s authority to give concurrence would last until the Constituent Assembly was convened. vi) The President could make a special order to abrogate or amend the Article. However, the President could not issue such a notification without the recommendation of the State’s Constituent Assembly. The constituent Assembly of Jammu and Kashmir dissolved themselves through a resolution in 1957. However, they did not have any provisions for the abrogation of Article 370 of the Indian Constitution in the Constitution of Jammu and Kashmir.

This clearly means that the constituent assembly did not want to extend any legislative powers of the Government of India beyond the three subjects that were mentioned under Article 370. With the dissolution of the Constituent Assembly, the constitutional possibility of abrogating Article 370 of the Constitution was largely diminished. The President, clearly required the assent of the Constituent Assembly to abrogate or amend the Article, which was no longer possible after the dissolution of the constituent assembly. However, despite this, several orders of the Parliament continued to be passed. From 1954 till 1994, 94 of the 97 entries to the Union List were extended to Jammu and Kashmir as were 260 of the 395 Articles of the Indian Constitution. In fact, by these orders, the constitution of Jammu and Kashmir was itself, overridden. The head of state (Sadar-I-Riyasat), elected by the State legislature was replaced by a Governor nominated by the Centre. The post of the Prime Minister of Kashmir (Sadar-I-Riyasat) was replaced with that of the Governor, who was always a close ally of Delhi. President’s rule under Article 356 of the Constitution was applied on Kashmir despite provision of a Governor’s rule in the Constitution of Jammu and Kashmir. The Constitution of Kashmir was amended in violation of Article 147 of the Constitution. Amendments to the Constitution required the assent of the Sadar-I-Riyasat, who was elected by the Assembly.

Yet, replacing him with a nominee from the Centre was a manifest violation of the basic structure doctrine. In Prem Nath Kaul v J&K,AIR 1959 SC 749, the Supreme Court unanimously held that the Constitution makers attached great importance to the final decision of the Constituent Assembly in terms of the relationship between the Centre and the State of Jammu and Kashmir. However, in 1968, in Sampat Prakash v the State of J&K 1969 (1) SCC 562, the Supreme Court ruled the opposite, saying that Article 370 could still be used to make Orders despite the fact that the State’s Constituent Assembly had ceased to exist. The judgement, neither referred to Prem Nath Kaul judgement, nor the Constituent Assembly debates and promises towards the autonomy of Kashmir. In the case of Mohammad Maqbool Damnoo v State of J&K,1972 (1) SCC 536  the Supreme Court ruled that the position of Sadar-I-Riyasat was the same as that of the Governor in no way was it a breach of democracy. This judgement also had no reference to the Prem Nath Kaul judgement or the Constituent Assembly debates. Elections in Kashmir was reduced to a farce which were rigged in favour of the Central government’s candidates in large numbers.

The spirit of Article 370 of the Indian Constitution was a commitment of self determination to the people of Jammu and Kashmir. Despite the repeated erosion of the Article, the Supreme Court in 2018, reiterated that with the dissolution of the Constituent Assembly, Article 370 of the Constitution could not be touched. Yet the BJP government has scrapped Article 370 from the Indian Constitution which has no legal justification. However, the politics behind this move of the BJP government is clear. In 1947, during the communal riots of Jammu, the RSS(which the BJP affiliated to) was brought in to communalize the Hindus and Sikhs against Muslims in what can be described as a State sponsored genocide. Abdullah and his constitutional expectations from India was secularism and democracy which would override hate politics. In his Constituent Assembly speech, Abdullah had spoken about his fears of organisations with religious intolerance overriding constitutionalism in India. To our own detriment, his fears have come true. Today, we stand at the crossroads of defining our collective conscience looking up to the Supreme Court to restore the spirit, dignity and value system of our Constitution.