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Central India Law Quarterly
Special Status To Jammu And Kashmir Under The Indian Constitution
SPECIAL STATUS TO JAMMU AND KASHMIR UNDER THE INDIAN CONSTITUTION Miss. Anuradha Pandit* Chapter I. Introduction Jammu and Kashmir is a constituent State of the Indian Union. It is included in the list of the States of the first Schedule of the Constitution of lnd'a, It is the only State in the Indian Union with a Muslim Majority1. The State was acceded to the Dominion of India by Maharaja Hari Singh, who was the ruler of the State in 1947 at the time when India was itself burning in the flames of communal riots2 . The internal position of the Jammu and Kashmir, was also not far better than India. Communal disturbances and hunger for power in the sub-continent were provocatinq the religious feelings of community in order. to fulfil their long awaited desire to assume political supremacy. The division of the sub-continent on the basis of the religion was creating hindrances in achieving the very objective of "Independence". Owing to the internal conditions, Maharaja Hari Singh was himself in a dilemma and, therefore, was not in position to take a decision with regard to accession of the state with either of the Dominion-India or Pakistan. The public opinion of the state was not yet ripe, the invaders spread havoc among the innocent and unarmed people mostly Muslims. The state was helpless. The life and. the honour of the people was at stake. Therefore, the great emergency existent in the state perhaps prompted the Maharaja and the leaders of National Conference to appeal to India for urgent help. And lateron under these circumstances, the state acceded to the Dominion of India. After partition of Indian sub-continent, the maintenance of "Unity and Integrity" was the greatest problem. Besides this, State of Jammu and Kashmir was also passing through a phase of grave crisis, therefore, it was necessary that the administration of the state be geared to these unusual conditions until normal life was restored. That is why, the Framers of the Indian Constitution, made some special provisions with respect to the state of Jammu and Kashmir to meet the unique situation. BA.LL.M., Advocate, High Court of M. P.,Lecturer Central India Law Institute, Jabalpur 1. The territory which immediately before the commencement of this Constitution was comprised in the Indian State of Jammu and Kashmir. 2. The Ruler of Jammu and Kashmir State executed the Instrument of Accession on 26.10.1947. 306 CENTRAL INDIA LAW QUARTERLY [2000 The working and experience of the Constitution shows that "Special Status' of the State of Jammu and Kashmir has been the ~ubject of considerable controversy. This controversy, since 1947 is receiving attention at the National and international level as well. The origin of the so called " Kashmir problem', seems to many scholars to lie in. the partition of the Indian Sub-continent, in the aggression by Pakistan in .Kashmir and in the act of accession to India by its rightful rulers3.No doubt Pakistan isnothing but a by product of the Indian Independenoe Movement. The aggressive attitude of Pakistan towards the Kashimiris seems to have mspired the people that th8lr tuture shall be secured If they join the Indian Union. This study, therefore, is aimed to hiohlioht the workinQof the special status, its impact on the federal character of the Indian constitunon and the problem ot constitutionalism that emerged betore the secular democracy in the changed social, political and religious outlook of the people. I. Historical Background "Kashmir is a land on which God has showered his . blessings in the making, where the earth is good andean be made to grow much lood, and many of its people are near starvation," said Pearce Gervis," a land where the finest silk and the softest wools are spun and woven into cloth, yet most of its people are clad, rags; a land where precious stones are to be found, yet few of its people possess any; a land in whichthe man are strong and the women as fruitful as the soil', being those of these basic cultures and creeds. A land which wnters havedescnbed as 'the happy valley' yet those who VISIt .t are.happy,l'lot those who dwell therein".4 The genetal history of the Kashmir valley is not thesubjecfmatter ot this study, however, a brief account of it WOUld be fruittulin understanding the.true nature and content of the •state of affairs to which they are subjected. A survey of the history of the vaneyshows that the Hindu, the Muslim, the Afgan, the British, andthe Dogra Rajputsrule<:Jthe 3. See for example. Lamb,AIastair, Crisis in Kashmir, 1947·66,pp. 35·37;Pha. 25. Mahajan. M. C. Looking Back. 1963.pp.267·68. 26. Ibid.pp.285. I I I 320 CENTRAL INDIA LAW QUARTERLY [2000 Pakistan, since his state had vital economic and cultural links with both. 27 IV. Aggression - A Catastrophic Event Pakistan was very much ambitious and impatient to materialise the accession of state of Jammu and Kashmir. But the indecisive attitude of Maharaja in regard to accession seems to have prompted pakistan to cause to· violate the Standstill Agreement. Violation of standstill Agreement paralysed the State Administration and reduced the State to miserable condition of abject submission to her28. On 22nd., October, 1947, Pakistan invaded the state of Jammu and Kashmir and started wanton destruction of life and property of the Kashmiris. The State of affairs in the State as described by Sheikh Abdullah deserves to be noticed :- "The invaders who came in the name of Pakistan to make us believe that they were true servants of Islam, scorched our land, ruined our homes, despoiled the honours of our women and devasted hundreds of our villages. These lovers of Pakistan dishonoured our mosques which they turned into brothels to satisfy their animal lust with abducted women"29. The Maharaja Hari Singh realised quickly the danger that was faced by him. On 24th Oct. 1947, Maharaja Hari Singh appealed to the Government of India for help and offered the accession of the State to the Indian Diminion.i'? Indeed, The Maharaja was so disturbed that he directed his courtiers to wake him only if and when V. P. Menon, secretary, Ministry of states, arrived in Jammu. That would mean India's acceptance of the accession. If no, he should be shot in his sleep with his own revolver3 1. On 27th Oct. 1947 the Instrument of Accession was accepted by the Governor General of India. 27. Hari Singh to Mountbatten, letter dated 26th Oct. 1947. cited Lakhanlal, p.l.ed. 28. Mahajan M. C. Looking back, 1963.p.270. 29. Cited in Sharma B. L. Kashmir Awakes. 1971.p.83. 30. Menon, V. P. Integration of the Indian States.p.399. 31. Khuswant Singh, Flames of the Chinar, pp.94-95. VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 321 The Sheikh who happened to be at Delhi, also supported the accession'F. The Insturment of Accession, therefore, conferred powers on the Government of India to undertake the responsibility to protect the State of Jammu and Kashmir from aggression. V. Accession - An Outcome of Aggression The attitude of Maharaja Hari Singh clearly indicates that he was reluctant to accede to either Dominion. But Pakistan's shortsighted policy of invasion of Kashmir in order to coerce Maharaja to accede to Dominion of Pakistan changed the future history of the State. Aggression, therefore, left no alternative but to accede to India. Had India not extended immediate military help, the State would have surrendered before Pakistan33 . In the above circumtances, the accession to the Indian Dominion was a necessity. Had the public opinion in the State been strong in favour of accession to the Dominion of Pakistan, the invaders would have certainly been welcome and full co-operation would have been extended to realise the very object. But the people of Kashmir reacted against the invasion and retaliated at the cost of their life. 32. Supra note. 30.pAOO. 33. The confusion in Maharaja's camp may be gleaned from the statement of his Prime Minister as recorded in Mehar Chand Mahajan's Kashmir's Accession to India: "In consultation with the Maharaja's it has been decided that, if the arrangements for the aerop-Ianes can be made, immediate help may be sought from Delhi. In case it was not possible we must surender before Pakistan.' --- see, Khuswant Singh, Flames of Chinar, p. 94 Essential Documents and noites on kashmir Dispute, 1968.p.56.cf. Mahajan M. C. op cit. p.264. • I CHAPTER - 3 ORIGIN OF THE PROBLEM On the issue of accession it is necessary to remember few facts. The accession of Kashmir is not of the same type as the accession of the other State. It took place when the State was in imminent danger of being overrun by tribal riders acting under the instigation of the Government of Pakistan. It is a limited accession restricted only to three subjects- defence, communication and foreign affairs. India accepted it as a provisional accession as will be clear from the letter dated 27-10-1947 written by Lord Mountbatten to Maharaja Hari Singh. 1 This letter indeed, not only internationalised the instrument of Accession but also incited numerous question with regard to its legality from various quarters. One more important fact that distinguished the Instrument of Accession is, Maharaja's letter to Mountbatten. The terms of the said letter are therefore, of crucial importance because of the reason that it highlights amongst other things, inablity of Maharaja to defend his people and his State as well from the clutches of tribal invaders. I heretore, In order to understand the true nature at the problem and its impact on the working of the Constutution, it is imperative to discuss the contents of the letter and the Instrument of Accession as well. 1. Text of the letter dated 26-10-1947 from Shri Hari Singh, Maharaja of Jammu and Kashmir to Lord Mountbatten, the Governor General of India. : 26th Oct. 1947 My DearLord Mountbatten, I have to inform your Excellency that a grave emergency has arisen in my State and request immediate assistence of your government. As your Excellency is aware the State of Jammu and Kashmir has not acceded to either the Dominion of India or Pakistan. Geographically my state is contiguous to both the Dominion. It has a vital commercial and cultural links with both of them. Besides my State has a common 1. Noorani, A. G., The Kashmir Question, 1964, p. i 1. VOI.XIIIJ SPECIAL STATUS TO JAMMU AND KASHMIR boundary with the Soviet Republic and China. In their external relations the Dominions of India and Pakistan can not ignore this fact. I want to take time to decide to which Dominion I should accede, whether it is not in the best interest of both the Dominions and my State to stand independent of course with friendly and cordial relations with both. I accordingly approached the Dominions of India and Pakistan to enter into the Standstill agreement with my State. The Pakistan Government accepted this arrangement The Dominion of India desired further discussion with the representatives of my Government. I could not arrange this in view of the developments indicated below. In fact Pakistan Government under the standstill agreement are operating Post and Telegraphs system inside the State. Though we have got a standstill agreement with the Pakistan Government, that Government permitted steady and increasing stranoulation of supplies like food, salt and petrol to my State. Afridis, soldiers in plain clothes and desperadoes, with modern weapons, have been allowed to infilter into the state, at first in Poonch area, then in Sialkot and finally in mass in the area, adjoining Hazra dtstnct on the Harnkot side. I he result has been that the limited number of troops at the disposal of the state had to be dispersed and thus had to face the enemy at several points simultaneously that it has become difticult to stop the wanton destruction ot life and property and looting The Mahoora power house which supplies the electric current to the whole Srinagar had been burnt. The number of women who have been kidnapped and raped makes my heart bleed. The wild forces thus let loose on the State are marching on with the aim of capturing Srinagar, the summer capital of my Government, as a first step to over running the whole State. The mass infiltration of tribesmen drawn from the distant areas of the N.W.F. Province coming regularly in motor trucks using Mansehr- Muzaffarabad road and fully armed with upto date weapons cannot possibily be done without the knowledge of the provincial Government of N.W.F. Province and the government of Pakistan. In spite of repeated appeals made by my Government no attempt has been made to check • • 324 CENTRAL INDIA LAW QUARTERLY [2000 these raiders or stop them from coming to my State. In fact both the Pakistan radio and press have reported these occurrences. The Pakistan Radio even put out a story that a provisional Government has been set up in Kashmir. The people of my state both the Muslim and nonmuslim generally have no part at all. With the conditions obtaining at present in my State, and the great emergency of the situtation as it exists I have no option but to ask for help from the India Dominion. Naturally they cannot send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government. The other alternative is to leave my State and my people to free-booters. On this basis no civilized Government can exist or be maintained. This alternative I will never allow to happen so long as I am the Ruler of the State and I have life to defend my country. I may also inform your Excellency's Government that it is my intention at once to set up an interim Government and ask Sheikh Abdullah to carry the responsibilities in this emergency with my Prime Minister If my State has to be saved immediate assistance must be available at Srinagar. Mr. Menon is fully aware of the situation and he will explain to you if further explanation is needed. In haste and with kindest regards. Yours Sincerely, Hari Singh. The Palace, Jammu 26th October, 1947. II. Instrument of Accession of Jammu and Kashmir State dated 26 October, 1947. Whereas, the Indian Independence Act, 1947, provides that as from the fifteenth day of August 1947, there shall be setup an independent Dominion known as INDIA, and that the Government of India Act, 1935, shall with such omissions, additions, adaptations and modifications as the Governor-General may by order specify, be . Vol.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 325 applicable to the Dominion of India; And whereas the Government of India Act, 1935, as adopted by the Governor-General provides that an Indian State may accede to the Dominion of India by an Instrument of Accession executed by the Ruler thereof; Now, therefore, I, Shriman Inder Mahender Rajrajeshwar Maharajadhiraj Shri Hari Singhiji, Jammu Naresh Tatha Tibbet adi Deshadhipathi, Ruler of Jammu and Kashmir State, in the exercise of my soverign power in and over my said State do hereby execute this Instrument of Accession and; 1. I, hereby declare that 1 accede to the Dominion of India with the intent that the Governor-General of India, the Dominion Legislature, the Federal Court and other Dominion authority established for the purposes of the Dominion shall, by virtue of this my Instrument of Accession but subject always to the terms there of, and for the purposes only of the Dominion, exercise in relation to the State of jammu and kashmir (hereinafter to as "this State") such functions as may be vested in them by or under the Government of India, Act 1935, as in force in the Dominion of India on the 15th August 1947 (which act as so in force is hereafter referred to as "(the Act)". 2. I hereby assume the obligation of ensuring that due effect is given to the provision of the Act within this State so far as they are applicable therein by virtue of this my Instrument of accession. 3. I hereby accept the matters specified in the Schedule hereto as the matters with the respect to which the Dominion Legislature may make laws for this State. 4. I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor General and the Ruler of this state whereby any function in relation to the administration in this state of any law of the Dominion Legislature shall be excercised by the Ruler of the State, then any such agreement shall be deemed to form part of this Instrument and shall be construed and have effect accordingly. • • 326 CENTRAL INDIA LAW QUARTERLY [2000 5. The terms of this my Instrument of Accession shall not be varied by any Amendment of the Act or of the Indian Independence Act1947, unless such amendment is accepted by me by an Instrument supplementary to this Instrument. 6. Nothing in this Instrument shall empower the Dominion Legislature to make any law for this State authorising the compulsory acquisition of land for any purpose, but I hereby undertake that should the Dominion for the purposes of Dominion law which applies in this State deem it necessary to acquire any land, I will at their request acquire the land at their expense or if the land belongs to me transfer it to them on such terms as may be agreed, or in default of agreement, determined by an arbitrator to be appointed by the Chief Justice of India. 7. Nothing in this Instrument shall be deemed to commit me in any 'way to acceptence of any future constitution of India or to fetter my discretion to enter into agreements with the Government of India under any such future constitution. 8. Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or save as provided by or under this Instrument, the exercise of any powers, authority and the rights now enjoyed by me as Ruler of this State or the validity of any law at present in this State. 9. I hereby declare that I execute this Instrument on behalf of this State and that any reference in this Instrument to me or the Ruler of the State is to be construed as including a reference to my heirs and successors. Given under my hand this 26th day of October, nineteen hundred and forty-seven. Sd/- Hari Singh Maharajadhiraj of Jammu and Kashmir State. III. Acceptence of Instrument of Accession I do hereby accept this Instrument of Accession dated this twenty- seventh day of October, nineteen hundred and fortyseven. Mountbatten of Burma Governer General of India VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 327 IV, Lf,'tter from Lord Mountbatten My dear Maharaja Sahib. Your Highness's letter, dated the 26th October, 1947 has been delivered to me by Mr. V.P.Menon. In the special circumtances mentioned by your Highness, my Government has decided to accept the accession of Kashmir State to the Domninion of India Consistently with their policy that, in case of any State where the issue of accession has been the subject of'dispute, the question of accession should be decided in accordance with the wishes of the people of the State. It is my Government's wish that, as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State's accession should be settled by a reference to the people. Meanwhile, in response to your Highness appeal for military aid, action has been taken today to send troops of the Indian Army to Kashmir to help your own forces to defend your territory and to protect the lives, property and honour of your people. My Government and I note with satisfaction that your Highness has decided to invite Sheikh Abdullah to form an Interim Government to work with your Prime Minister. Yours sincerely, Sd- Mountbatten of Burma A Plain reading of the 'Instrument of Accession' executed by Maharaja leads to the strong conclusion that it was in no way different from that executed by some 500 other Indian States. The offer was from Maharaja. Therefore, an act of voluntary execution of 'Instrument of Accession' is an exercise of'sovereign power'. The acceptence of the instrument by the Government General was valid under the Government of India Act, 1935 and Indian Independence Act, 1947.2 V, The Legal Effects of the Accession Here it is not appropriate to enter into the political thicket of the circumstances under which the Maharaja offered to accede but it is 2. Sees. 6 & 122 to 128 of Govt. of India Act, 1935; section 2 (3) of Indian Independence Act. 1947. • • 328 CENTRAL INDIA LAW QUARTERLY [2000 significant to note that the act of offering to accede is political act which the Maharaja exercised under his 'sovereign power.' Therefore, the 'Instrument of Accession is a political document in the first instance. Its effects are two fold:- firstly, it confers powers and authority on the Dominion of India' to exercise sovereign functions over the acceding State; and secondly, the acceding State ceases to exercise those functions which are entrusted to the 'Dominion' but it will retain its autonomy to the extent provided in the Instrument. Besides this, it is . incumbent on the part of the acceding State to carry out obligations which arises in relation to the administration of the state. In other words, the Instrument of Accession defines the extent of abdication of sovereign powers in favour of 'Dominion.' Therefore, in these circumstances it can safely be said that the accession was unconditional, it bound the State of Jammu and Kashmir & India together legally and constitutionally.3 VI. The root cause of problem Legally speaking, the Instrument-of Accession must be construed Inthe IIQht ot terms and conditions embodied therein. I he letter ot Maharaja accornpanyrnq the otter highlights the state ot affairs then prevailing in the state due to infiltration of invaders. It must not, therefore, be construed that Maharaja's offer to accede to the dominion of India was under duress or coercion. This letter is not part of the 'Instrument of Accession'. Like-wise the acceptance ot the tnstrument on the part ot the Governor-General is final. A letter written subsequently by the Governor General to Maharaja is nothing but a personal letter. The opinion expressed by the Governor-General therein must also not be read as a part of 'Acceptance of offer'. Neither the Government of India nor the Indian Independence Act, 1947 under which the said Instrument has been executed and accepted authorise the Governor-General to accept an offer of the accession on equivocal terms. However. it can not be ignored at this juncture that both the letters have been written by authoritative personalities. therefore, their impact on the offer and acceptance of accession can not be ruled out. It is these letters which aggravated the problem and gave room to cast suspicion on the legality of accession of instrument. Therefore, the legality of the Instrument in question irorn the standpoint or constitutionality needs explanation and elucidation. 3. Ur. Anand, A.~., Accession 01 Kasnmlr-Histoncal &. Legal perspective 1996 4 sec, Journal Sec. p. 15. CHAPTER-4 CONSTITUTIONALITY OF INSTRUMENT OF ACCESSION As a sequel to the acceptance of Instrument of Accession, the Dominion of India took the responsibility for the defence of the State. It is noteworthy that Indian acceptance of the accession took the shape of two documents one was formal statement by Mountbatten, the Governor General of India 1. The second document was a personal letter from Mountbatten to, Maharaja Hari Singh.2 It may also be noted that the letter accompanied by Maharaja with the Instrument of Accession inter alia 'disclosing his intention to accede to the Dominion of India forms a collateral evidence of 'offer' and illustrates the exigencies of circumstances which needed immediate acceptance of offer. As delay in accepting the offer would have frustrated the very purpose. The crucial question for our consideration is, therefore, to examine and analyse the existence of these documents and their impact, if any, on lhe constuutiouaiily uf iile 'insirurneui uf Accession. The answer to the above question is not so simple and therefore, needs careful examination of documents which directly or indirectly affect legality and constitutionality of the Instrument. Therefore, at the outset, it must be borne in mind that the territory of the State of Jammu and Kashmir was not a part of British India and its people were subjects of the British Crown3 . The policy of transfer of power has a great impact on the constitutional structure of India. A careful study of his Majesty's Government policy in regard to 'transfer of power', as envisaged in the Cabinet mission's plan of May, 16, 1946 establishes the fact that it was, infact, designed to demolish the constitutional structure of British India. The Cabinet Mission's Memorandum on the States treaties and paramountcy May 12/12, 1946 defined the status of the states and the legal consequences which the transfer of power would have on them is clearly discerned from the para 5 of the said memorandum 1. Supra, 326. 2. Supra, 327. 3. White paper on Indian States, p. 153. see also tj. t;htva Hao, the l-raming ot India's Constitution select Document, (Document No.. 49) pp. 247,48. • • 330 CENTRAL INDIA LAW QUARTERLY [2000 "Para 5 Thus, as a logical sequence and in view of the desires expressed to them on behalf of the Indian States. His Majesty's Government will cease to exercise the powers of paramountcy, this means that the rights of '. these states which flow from their relationship to the crown will no longer' exist and that all the rights surrendered by the States to the paramount power will return to the States. Political arrangements between the States on the one side and the British Crown and British India on the other will thus be brought to an end. The void will have to be filled either by the states entering into a federal relationship with the successor Government or Governments in British India, or failing this, entering into particular political arrangements with it or thern'". Further, it may also be noted that the final phase of the 'Transfer or power' was unpleasant, as it resulted in the formation of two independent 'Dominions's which ended the dream of 'single Undivided India' for ever and thereby generated numerous political and constitutional problems in formulating a new federal constitutional structure for free India. In order to appreciate the matter in question in its right perspective, it is necessary to refer to the relevant statutory and constitutional provisions which would substantiate the stand as to whether the Instrument of Accession executed by the Maharaja of Jammu and Kashmir is 'legal and constitutional' or otherwise. I. Legal Effects of Lapse of Paramountcy Consequent upon the transfer of power in the Indian Sub-continent, the State of Jammu and Kashmir alongwith other Indian States became independent. Under the section 2 of the Indian Independence Act, 1947 the territories of the two new Dominions have been defined. The State of Jammu and Kashmir. does not find any place therein. Sub section 4 of section 2 of the Indian Independence Act] 1947 however makes an express provision for the accession of the Indian States to either of two Dominions. Thus the two sovereign states-India and Pakistan came into being 4. See, Section 2 of the Indian Independence Act, 1947. 5. Ibid, Sec. 2. 6. Ibid, Sec 7 (1) (b). VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 331 on 15th Aug. 1947, the suzerainty of the British Crown over the Indian States lapsed and with it all treaties and the agreements in force between them 'As Lord Mountbatten. told the Princes on July, 1947, '~the Indian Independence Act, releases the states from all their obligations to the crown. The State have complete freedom-technically and legally they are independent," He however proceeded to say that "the States are theoretically free to link their future with whichever they may care. But when I say they are at liberty to link up with either the Dominions may I point out that there are certain geographical compulsions which can not be evaded." He further added "you can not run away from the Dominion Government which is your neighbour any more than you can run away from the subjects for whose welfare you are responsibla"." Lord Mountbatten put forward before the rulers two documents: (1) The Instrument of Accession and (2) a standstill agreement for the continuance for the time being of agreements and arrangements in matters of common concern between the State and the Dominion of India. II. Some Views on 'Lapse of Paramountcy' . The stand which the eminent leaders of Pakistan and India took in regard to the legal position of 'Lapse of paramountcy' deserves to be noted; Mr. MA Jinnah, the Governor General Designate of the Dominion of Pakistan, said: The legal position is that with the lapse of paramountcy on the' transfer of power by the British, all Indian states would automatically regain the full sovereign and independent status. They are therefore, free to. join either of the two Dominions or to remain independent. 8 Contrary, to this, The All India Congress Committee, in resolution dated June, 15, 1947, held ''that the lapse (of paramountcy) does not lead to the independence of the State" and said "it is clear that the people of the States must have dominating voice in any decisions regarding them ..,,9 In a meeting held on 29.1.1947, the Princes resolved and declared that "the State will retain all subjects and powers other than those ceded 7. White paper on Indian States. 8. Noorani, A.G The Kashmir Question, p. 22. 9. The Times of India, June 16, 1947. I I 332 CENTRAL INDIA LAW QUARTERLY [2000 by them to the union. Paramountcy will terminate at the close of the. interim period and will not be transferred to or inherited by the new Government of India. All the rights surrendered by the States to the paramount power will return to the States. The proposed Union of India will, therefore, exercise only such functions in the relation to the States "in regard to the Union subjects as are assigned or delegated by them to the Union. Every State shall continue to retain its sovereignty and all rights and powers except to the extent that those rights and powers have been expressly delegated by it. There can be no question of any powers being vested or inherent or implied in the Union in respect of the States unless specifically agreed to by them."10 The views expressed by the Lord Mountbatten are quite instructive and explicit in this regard: "Now, I think it is no exaggeration to say that most Rulers and Dewans were apprehensive as to what their future would be when paramountcy lapsed. At one time it appeared that unless they joined the Constituent Assembly and accepted the Constitution when it was formed, they would be outside the organisation and left in a position which, I submit, if you think it over carefully, no State could view with equanimity- to be left out having no satisfactory relations or contracts with either Dominion Government. ....Therefore, I am sure you will agree that these three subjects (Defence,. External affairs, communications) have got to be handled for you for your convenience and advantage by the larger organisation. This seems so obvious that I was not at a loss to understand why some Rulers were reluctant to accept the position. ' One explanation probably was that some of you were apprehensive that the Central Government would attempt to impose a financial liability on the States or encroach in other ways on their sovereignty. If I am right in this assumption, at any rate so far as some Princes are concerned, I think it must dispel their apprehensions and misgivings. The draft Instrument of Accession which I have caused to be circulated as a basis of the discussion and not for the publication to the representatives of the 10. Constituent Assembly Debates, Vol. 3.1947, NO.1 to App.A. pp.367-8. VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 333 States provided that the States accede to the appropriate Dominion on three subjects only without financial liability . Further, that Instrument contains an explicit provision that in no other matters has the Central Government any authority to encroach on the internal autonomy or the socereignty of the States. This, would in view, be a tremendous achievement for the States. But I must make it clear that I have still to persuade the Government of India to accept it. If all of you would co-operate with me and are ready to accede, I am confident that I can succeed in my office."" A careful examination of the views expressed on " the lapse of paramountcy "leads to one strong conclusion that technically and legally both, the States became free and independent. This follows that the States Qecome "Sovereign". The Sovereignty thus attained by the States on the transfer of power was nothing but a myth. The scheme of setting up of two Dominion conceived by the British Government circumscribed the enjoyment of the Sovereign power. The States were in fact empowered to exercise this power .only to execute an Instrument of Accession to either Dominion. The idea of enjoying sovereign power and to retain sovereignty by the State was bound to create chaos and that chaos will result in breach of peace and good order in the sub-continent. The State of Jammu and Kashmir provides a good example of it. In order to understand the impact of 'documents' on the Instrument of Accessions, it would be desirable to mention the statutory provisions made in this regard. III. Statutory Provision (A) The Government of India Act, 193512 Section 6 of the Government of India Act, 1935, provides as under: 6-1 An Indian State shall be deemed to have been acceded to the Dominion if the Governor General· has signified his acceptance of an Instrument of Accession executed by 11. W~P.ron Indian States (1950), pp.160-4. 12. 26 Gee. 5..Ch.2 (as adapted by the India (Provisional Constitution) Order, 1947. I I 334 CENTfiAL INDIA LAW QUARTERLY [2000 the Ruler there of where by the Ruler on behalf of the State :- (a) declares that he accedes to the Dominion with the Intent that the Governor -General, the Dominion legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of his Instrument of Accession, but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State such functions as may be vested in them by order under this Act. and (b) assumes the obligation of ensuring that due effect is given within the State to the provisions of this Act so far as applicable there in by virtue of the Instrument of Accession. (2) An Instrument of Accession shall specify the matters which the Ruler accepts as matters with respect to which the Dominion legislature may make laws for the State, and the limitations if any to which the power of the Legislature to make laws for the State, and the exercise of the executive authority of the Dominion in the State, are respectively to be subject. (3) A ruler may. by a supplementary Instrument executed by him and accepted by the 'Governor General, vary the Instrument of Accession of his State by extending the functions which by virtue of that Instrument are exercisable by any Dominion authority in relation to his State. (4) References in this Act to the Ruler of a State include reference to any persons for the time being exercising the powers of the Ruler of the State whether by reason of the Ruler's minority or for any other reason. (5) In this Act a State which has acceded to the Dominion is referred to 3S an Acceding State and the Instrument by virtue of which a State has so acceded, construed together with any supplementary Instrument executed under this section, is referred to as the Instrument of Accession of that States. VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 335 (6) As soon as may be after any Instrument of Accession or supplementary Instrument has been accepted by the Governor General under this section, copies of the Instrument and of the Governor-General's acceptance thereof shall be laid before the Dominion Legislature and all courts shall take judicial notice of every such Instrument and acceptance. The Administrative Relation between the Dominion and the Acceding States will be governed in accordance with the provisions made under Sections 122, 124 and 125 of the Government of India Act, 1935. (b) The Indian Independence Act, 194713 Section II of the Indian Independence Act, 1947 reads as under: 11.- (1) Subject to the provisions of subsections (3) and (4) of this section, the territories of India shall be the territories under the sovereignty of his Majesty which, immediately before the appointed day, were included in British India except the territories which, under Sub-section.(2) of this section, are to bE3 the territories of Pakistan. (2) Subject to the provisions of subsections (3) and (4) of this section the territories of !~akistan shall be-- (a) The territories which, on the appointed day, are included in the Provinces of East Bengal and West Bengal as constituted under the two following sections; (b) The territories which.. at the date of the passing of this Act, are included in the province of Sind and the Chieg Commissioner's Province of British Baluchistan; and (c) If, whether before or after the passing of this Act but before the appointed day, the Governor General declares that the majority of the valid votes cast in the 13.10&11GeoVI,ch30. • • 336 CENTRAL INDIA LAW QUARTERLY [2000 referendum which, at the date of passing of this Act, is being or has recently been held in that behalf under his authority in the North-West Frontier province are in the favour of representatives of thaf Province taking part in the Constituent Assembly of Pakistan. the territories which at the date of passing of this Act, are included in that Province. (3) Nothing in this section shall prevent any area being at any time included in or excluded from either of the new Dominions, so, however. that :- (a.) no area not forming part of the territories specified in the sub-section (1) or, as the case may be, sub section (2) of this section, shall be included in either Dominion without the consent of that Dominion. (4) Without prejudice to the generosity of the provisions of Subsection (3) of this section, nothing in this shall be construed as preventing the accession of Indian States to either of the new Dominions. The very first statutory document which contains provisionswith regards to the accession of the States through the Instrument of Accession is Government of India Act 1935 and the Indian States shall be deemed to have been acceded to the Dominion if the Governor-General .has signified his acceptance to it This follows that the Instrument of Accession should be executed by a 'Ruler" of the state alone and the legality and validity thereof depends upon the fact as to whether the 'Ruler' is sovereign and competent to execute the Instrument of Accession. Therefore , in order to appreciate the position of His Highness the Maharaja of Jammu and Kashmir it would be necessary to give a short background of the constitutional relationship that existed between - the Jammu and Kashmir State and the British Crown before the partition ~~ of India., andhow it was affected by the Indian Independence Act. 1947. \ (IV) Constitutional Relationship With British Crown The 'Ruler" of the Jammu and Kashmir, prior to the partition of the Vol.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 337 sub-continent was under the sovereignty of the British Crown in asmuchas foreign relations were under the exclusive control of the Crown representative. But in sofar as the internal sovereignty of the 'Ruler' was concerned it was absolutely unlimited and there were no fetters on it.14 This fact is very much clear from the section 4 and 5 of Jammu and Kashmir Constitution Act, 1996 as they stood before the Act was amended in November 1951: By virtue of section 7 of the Indian Independence Act, 1947 passed by the British Parliament, sovereignty of His Majesty over the indian States iapsed and aii the junction exercisabie by His Majesty at that date with respect to the State of Jammu and Kashmir, all obligations of His Majesty towards the Jammu and Kashmir State or the ruler there of and all powers rights, authority and jurisdiction exercisable by His Majesty at that date in relation to the State of Jammu and Kashmir by treaty or otherwise lapsed and the State became an independent and soyereign State in the full sense of the international law. Thus whatever limits to the Sovereignty of His Highness in relation to matters coming within the sphere of paramountcy existed before 15.8.1947-, these ceased to exist and His Highness became an uncontrolled and absolute sovereign15 . On the otherhand it may be said that the State of Jammu and Kashmir became an independent State as soon as it was released from its allegiance to the British Crown under the Indian Independence Act. The Maharaja of Jammu and Kashmir became the repository of all power under this Act which created the two Dominions of India and Pakistan.16 Since the Maharaja was enjoying absolute sovereignty, therefore, he was free to decide whether he should accede to any of the two Dominions. 14. Sec. 4: The territories for the time being vested in His Highness are governed by and in the name of His Highness, and all rights, authority and jurisdiction which appertain or are incidental to the Govemment of such territories are exercisable by His Highness, except in so far as may be otherwise provided by or under this Act. or as may be otherwise directed by his Highness. Sec.5: "Notwithstanding any1hing contained in this or any other Act, all powers, legislative executive and judicial, in relation to the State and its Govemment are hereby declared to be and to have always been inherent in and possessed and retained by His Highness and nothing contained in this or any other Act shall affect or be deemed to have affected the right and prerogative of this Highness to make laws, and issue proclamations, orders and ordinance by virtue of his inherent authority: 15. Maaher Sinoh V. Principal secv. J&K Government (Shahmiri .L) Air 1953 J&K. 25.27. 16. Mahajan, Mahar Chand, Looking Back, 1963 Edn. p. 264. • • 338 CENTRAL INDIA LAW QUARTERLY [2000 (V) Execution of Instrument of Accession- Constitutional And Valid The Instrument of Accession executed by Maharaja Hari Singh of Jammu and Kashmir on 26.10.1947 being a "Ruler" of the State exercising his sovereign powers is quite constitutional and valid as the same was executed under Section 6 of the Government of India Act. 1935 as adpoted by the Indian (Provisional constitutional) Order, 1947. By Executing this Instrument of Accession the Ruler on behalf of the State acceded to the Dominion of India with the object that certain authorities specified in section 6(1) (a) shall, by virtue of the Instrument of Accession, 'but subject always to the terms thereof, "and for the purposes only of the Dominion. exercise in relation to the State such functions as would be vested in them by or under the Act. It is clear that, even if the Instrument of Accession has not made any specific reservations therein, the Instrument readwith section 6, Government of India Act would leave the residuary sovereignty of the State entirely unaffected."? The State of Jammu and Kashmir stand acceded to the Dominion of India on 27.10.1947 when the Governor-General signified his acceptance to it under section 6( 1) of the Government ot India Act, 1935. Section 11(4) of the Indian Independence Act, 1947 also makes an express provision Which does not prevent the accession of Indian States to either of the new Dominion It can now fairly be said that accession of State of Jammu and Kashmir was quite constitutional. legal, complete and. c4inal. Thus, the State of Jammu and Kashmir came under the sovereignty of India and became a part of India. Gururaj Rao maintains that the "accession of Kasnmir oecame a legai tact" wnen Maharaja signed the Instrument of Accesslon.l'' Since he was the only competent person to do so "even assuming that he was not in defacto possession of the whole territory of the State."19 Thus the view held by scholars that the accession of Kashmir to India is provisional is not tenable. 20 Legality of accession is beyond doubt. 17. Megher Singh V. Principal Secy. J&K Govrnment. AIR 1953 J&K. 25.27,28. 18. Rao. Gururaj, Legal. Aspect of the Kashmir Problem, (1967) p. 3:3-34. 19. Ibid, p. 35. 20. Sec. Noorani A. G. The Kashmir Question? (1964) p. 67. Vol.XIII] SPE:CIAL STATUS TO JAMMU AND KASHMIR 339 (IV) Impact of Documents (a) Letter of Maharaja to Lord Mountbatten Of course, it can not be denied that the accession of Kashmir took place when the State was in imminent danger. It would be seen from the letter In question that it did not contain any term but merely highlight the pligiit of the state as it exist. It may also be noted that the State was in dire need of military help which could not be possible in the absence of offering an accession of State in the scenario prevailing in the Indian sub- continent. The.Maharaja also expressed his earnest desire to accept the offer of accession. It appears, that letter had been written by the Maharaja with a view to invite the attention of the Government General to the conditions prevailing in the State and to take immediate cognizance of the situation to provide military help so that the wanton destruction of life and property could be stopped. Tneretore, by writing a letter, Maharaja at Kashmir did not act unwisely or unconstitutionally. The contents of the letter indeed, support the earnest desire of Maharaja's offer to accede to the Dominion of India'. The request contained in the letter does not make the 'offer of accession ' as conditional or provisional. It would therefore, be improper and unjust to adjUdge the Instrument of Accession as conditional and provisional on fhe basis of the said letter. It can therefore fairly be said that the impact of the letter on the Instrument of Accession is limited to the extent it hlqhlights the plight of the State which needed immediate congnizance inereoi. (b) Letter of Formal Acceptance A plain reading of provisions contained in section 6 (1) of the Government of India Act, 1935 makes it very clear that unless the Governor General signifies his acceptance to the Instrument of Accession, an indian State shall not be deemed to have been acceded to the Dominion. Sub section (6) of section 6 of the said Act further provides that as soon as may be after any instrument of Accession or Supplementary Instrument has been accepted by the Governor-General under this section, copies of the Instrument and of the Governor General Legislature and all the courts shall take judicial notice of eve!) such Instrument and acceptance. I I • • 340 CENTRAL INDIA LAW QUARTERLY [2000 It may also be noted that neither the Government of India Act, 1935 nor the Indian Indeoendence Act. 1947 prescribe any soecific manner in which the Governor General has to signify his acceptance. The provisions enumerated in the said Acts are also silent about the 'provisional' and 'conditional' character of acceptance. Meaning therby, the moment Governor General signifies his 'acceptance' and the same is laid before the Dominion Legislature, it become absolute, final and complete. The formal acceptance contained in the letter dated 27.10.1947 to the effect· that "I hereby accept this Instrument of Accession dated this twenty-secenty day ot October, Nineteen hundred and fortyseven' is a conclusive proof of the fact that acceptance' is quite valid, absolute, final, complete, unconditional and in consonance with the provision contained inthe section of 6 of the Government of India Act, 1935. The formal acceptance of the Instrument of Accession conveyed to Maharaja of Kashmir is an authentic expression of the Legislature. The lanquace employed in the. said acceptance letter is plain, clear and explicit and where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise.21 Here it may also be noted that neither the Government of India Act, 1935 nor the Indian Independence Act, 1947. did envisage such a situation as it would be outside parliament's policy. It wanted to keep no Indian State in state of suspense. It conferred on the rulers of the Indian States absolute power in their discretion to accede to either of the two Dominions. The Dominion's Governor General had power to accept the accession or reject the offer but he had no power to keep the question open or attach conditions to it, as the act of accession made the Dominion Government responsible for the defence, communication and external affairs of the acceding State.22 (c) Personal letter from Mountbatten The part which the Lord Mountbatten played in the affair of acceptance of Instrument of Accession is quite unwholesome and portrays a very dismal picture. The letter contains nothing but the personal will of the Governor General which he could not fulfil within the provisions ot the Governor of India Act, 1935 and the Indian 21. Langan, p. St.J., Maxwell on the Interpretation of Statutes, Twelfth Edition, (Fifth Impression), 1985, p. 29. 22. Mahajan, Mehar Chand, Looking Back, 1963 Edn. p. 279·80. VoI.XIII] SPECIAL STATUS TO JAMMU AND i-;jo. 14. Problem of Federalism : A History of Political Therory. 1059 Bombwall, K. R. The Foundations of Indian Federalism: 1967, p.27. M. P Jain, Indian Federalism-A Background Paper in I.L.I., Constitutional Development Since Independence, 205-254(1974); 15. For detailed study on Federalism -see- Dicey. Law of Itl'? Constitution; Federalism; Problems ancl Methods, 4 Intemational Bulletin of Social Science, 5 et seq. (1952) Bowie, Problems of Federalism; Wheare. Federal Government; Schwartz American Constitutional law. Dawson, The Govemment of Canada: Federich & Bowie, Studies in Federalism, Mcwhinney. Comprative Federalism, (1962): • • 346 CENn~AL INDIA LAW QUARTERLY [2000 Assembly to make the provisions which will govern future relationship with the Union of India. Therefore, keeping in view the terms of the Instrument of Accession, the State of Jammu and Kashmir was conferred special status in the Union of Inida. It is interesting to note that the Accession of Kashmir to India is quite analogous to the annexation of the Texas by the United States of America. It would, therefore, be profitable to understand the crux of special status under the federal system. When Mexico seperated from the Spanish Empire and set up an independent Hepubiic, Texas was an integrai part of the new State. Later, Texas established itself as an independent entity. The independent status of Texas was recognised by the United States of America and the principal powers of Europe. In 1844, the Government of Texas, threatened by the menace of predatory incursions from Mexico, requested the Government of the United States of America to annex the State. This proposal was sanctioned by the American Congress in a joint resolution in March 1845. After this sanction, America sent an army to defend the western frontiers of Texas. The government of Mexico strongly protested aqamst and alleged violation of the rights of Mexico. Even the diplomatic Intercourse between the two Government was suspended. The Mexican protest evoked the foltowing reply from the Government of the United States of America. .. The Government of United States did not consider this joint resolution as a violation of any of the nghts of Mexico, or that it offered any just cause or offence to its Government. that the republic of Texas as an independent power, owing no allegiance to Mexico, and constituting part of her territory or rightful sovereignty and jurisdiction." In Texas case it has never been contended that the annexation was not valid nor was the action of the United States to send an army to defend the western frontiers of Texas ever questioned. The case of accession of Kashmir stands at a much stronger footing than that of Texas and the criticism regarding the validity of the accession of Jammu and Kashmir to India is wholly meaningless and unsustainable - the accession of the State of Jammu and Kashmir to India is legal, final, binding and irrevocable. i 6 16. Dr. Anand. A. S. Accession of Kashmir Historical & Legal Perspective. (1996) 4 sec. Journal Sectionp. 11,20 VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 347 One such example of special status in federations abroad is found in Canada. However, while Kashmir obtained its special status at the time of federal bargain, Quebec is on its own way to achieving it. 17 Quebec seeks larger powers to defend its traditional French-Canadian nationalism and constantly emphasizes cultural survivaf. 18 The Quebecers are a asserting their claim not only as principle, "but more so to establish their assertion as people".19 While defining their special status Lesage observes: it wouia De the resuit of an evolution during which Quebec wouid want to exert powers and responsibilities which the other provinces for reasons of their own might prefer to leave with Federal Government. 20 I nus, there seems to be a great historical Similarity between the Kashmir's and Quebec's assertion to their respective federations. Quebec had a fear of being absorbed in 1867 by the stonqer United States. 21 I heretore It JOined Canada tor its survival. Similary Kashmir decided to join the Indian Union only when the military Invasion trom Pakistan forced its ruler Hari Singh, to do so.::!::! The French Canadians in Quebec are a religious and linguistic minority in Canada but a majority in Quebec 23 . Similarly the Muslims of Kashmir had a language and culture of their own besides being a majority in Kashmir State. 24 Both of these States also have similar economic divergencies which compel their respective central governments to treat them on a special footing. 25 Thus the special status has, been conferred to the State of Jammu and Kashmir in order to meet unique situations and circumstances. Federalism, therefore, is often considered a panacea for multifarious 17. If special status is denied to Quebec its Pe'quiste government plans to hold referendum In two to four years on whether Quebec's six million residents... want to secede from Canada. (Macdonald, D., "Canada: To Be or Bot to Be", in Reader's Digest, Vol III. November 1977,p.25-28. 19. Ibid. p.26. 20. Ibid, p.28. 21. MacDonald. D, op, cit.,p.147. 22. Dikshit, op. c!t.,p.124. 23. See Encylopaedia Britannica, Vol. 15, op. clt., p. 552. 24. Parasuram, TV,"When Us held secret talks with Abdullan", in Indian Express, 13 July, 1978. 25. Hari Ram, Special Status in Indian Federalism, 1983,p.199 • • 348 CENTi:;AL INDIA LAW QUARTERLY [2000 problem of organisation. It is devised to express multinationalism,26 linguistic diversities caste and communal loyalties. ethnological dissimilarities, particulansms, religious heterogeneity and numerous other similar diversities.f? On the basis of any or many of these, a unit in a federation may bargain for constitutional autonomy, which the politicians who offer the bargain can provide internally in certain limited spheres to maintain that unit's individual indentity or separate existence. 28 If, in a particular situation, a unit contains a population which is a majority in that unit, DUI otherwise a minority in the entire federation, it may advance certain political claims either for equality with the majority or for a special status rel,;dng upon the recognition of these differences. 29 Takinq in view these aspects, the State of Jammu and Kashmir deserves to be conferred a special status oWing to its own peculiarities in Indian Federation. The framers of the Indian Constitution rightly did so. (iii) Why this Discrimination The reasons for conferring special status to the State of Jammu and Kashmir in the indian Constitution were 'special problem', then prevailing in the State. The Constituent Assembly found that the State was not yet ripe for this kind of integration. A reference to the speech of the late Mr. Gopalaswami Ayyangar which was delivered by him while moving Art.370 (then Art.306-A) is quite illustrative: "In the case ot the other Indian States or Unions of States, there are two or three points which have got to be remembered. They have all accepted the Constitution fr~mp.rt for St;,tp.~ in Part-l (If thp. naw Constitution ~nrt those provisions have been adopted so as to SUIt the conditions of Indian States and Unions of States Secondly, the Centre, that is, the Republican Federal centre will have the power to make laws applying in every such State or Union to all Union and concurrent subjects. Thirdly, the uniformity between those States and Unions and the Centre. Kashmir's conditions are as I have said, special and require special treatment." 26. Carnell, F. G."Polilic8.1 implications of Federalism" in U.K. Hlchs, eo., Federalism and Economic Growth in Underdeveloped Oountnes.iop.cit, p.33. 'U. Ct. UlkShil, op.cit.pp. '1:;'-1~t>. 28. Ibid., pp. 3-4 and 227 29. See I:.ncyclopaedia tlrl!annlca, Vol. 15, Chicago: William Henton, I-'ublishers, 1969, p.542. VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 349 "....I shall briefly indicate what the special concitions are, in the first olace. there has been a war going on within the limits of Jammu and Kashmir State. There was a cease-fire agreed to at the beginning of this year and that cease-fire is still on. But the conditions in the State are still unusual and abnormal. They have not settled down. It is therefore, necessary that the administration of the State should be agreed to these unsual conditions until normal life is restored as in the case of the other States. Part of the State is still in the hands of rebels and enemies. We are entangled with United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled. Again the Government ot India have committed themselves to the people of Kashmir in certain respects They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining this will of the people by means ot a plebiscite provided that peaceful and normal conditions al'e restored and the Impartiality ot the plebiscite could be granted. We also agreed that the will of the people, through the Instrument of a constituent assembly, will determine the Constitution of the State as well as the sphere of the Union jurisdiction over the State. At present, the legislature, which was known as the Prajasabha in the State is dead. Neither that legislature nor a constituent assembly can be convoked or can function until complete peace comes to prevail in the State. We have therefore to deal with the Government of the State which, as represented in its council of ministers, reflects the opinion of the largest political party in the State. Till a constituent assembly comes into being, only an interim arrangement is possible and not an arrangement which could at once be brought into !ine with the arrangements that exist in case of the other States.,,30 30. CAD, Vol. 10,pp.424-425. • • 350 CENTRAL INDIA LAW QUARTERLY [2000 The various cognate reasons assigned above indicate that the Constituent Assembly while making the provisions with respect to the State of Jammu and Kashmir acted very wisely. They were perhaps quite aware of the fact that in the circumtances then prevailing the kashmiris would sharply react to the imposition of a constitution that was primarily a handiwork of the Indians because there was no accord on details at·that stage. It would, therefore, .be enough for the time being if Kashmiris will- ingly decide to accept the fundamentals of the constitution and keep their State within the framework. The Constitution makers envisaged a transition period during which the Kashmiris would have an opportunity to experience the sort of life that they would have to lead as citizens of the Indian Union; only thereafter they would be able to make voluntary declaration whether or not they would like to get absorbed in the mainstream of India's nationallife.31 A step further it may be submitted that the framers of the Constitution, like the leaders of the National Congress, fully ,grasped the reasons that made the relationship between India and Kashmir tenous and what they could do to make it strong and perennial. Despite the adoption of the full-fledged democratic constitution by the Indian Nation, the constitution makers realised that Kashmir had yet to feel one with India in every respect, emotional temperaments had to be adjusted and differences eliminated which could be done only with passage of time. 32It is nothing but an irony of fate that despite affording full oppontunity to the people of the State of Jammu and Kashmir, the foreign interference in the matter has been preventing them from getting absorbed in the mainstream of Indian national life. A careful study of the problems as it exists even today, shows that the framers of the constitution were wise enough to realise the crux of the problem in its right perspective, therefore, they made these arrangements in the Constituion and brought into being a new type of federali!sm to meet the challenge of peculiar circumstances. 33 There will be no exaggeration 31. Bazaj, P.N., Kashmir in Crucible, 1967,p.42. 32. Ibid., p.42. 33. Austin, Granville, op.cit., p.188. Vol.XIIIJ SPECIAL STATUS TO JAMMU AND KASHMIR 351 in stating that the Indian federal system has amply proved the maxim advanced by Livingston that "federations rise in response to definite set of stimuli. 34 (iv) The Grammar of Constitutional Relationship. The grammar of Constitutional relationship and the manner in which the said relation between the Union of India and the State of Jammu and Kashmir will be governed are embodied in Article 370 of the Indian Constitution. The very object of this transitory provision is to afford the kashmiris an opportunity to have association with the free democratic secular India and enable them to realise that their bright future is secured by becoming an integral part of the Union. Since Article 370 is the sole repository of the constitutional morality which has been governing the relationship with the State of Jammu and Kashmir,it would, therefore, be pertinent to mention the ideals embodied therein. Article 370 of the Indian Constitution reads as . under: Art.370-(1) Notwithstanding anything in this Constitution :- (a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir; (b) the power of Parliament to make laws for the said State shall bel limited to- (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and (ii) such other matters in the said List as, with the concurrence of the Government of the State, the President may by order specify. 34. Livingston, S.W.,"A note on the Nature of Federalism". in Wildaskt, Aaron, ed., American Federalism in Perspective, Boston: 1967,p.36. • I 352 CENTRAL INDIA LAW QUARTERLY [2000 Explanation- For the purposes of this article, the Government of the State means the person for the time being recognised by the President as Maharaja of Jammu and Kashmir acting onthe advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948; (c) the provisions of article 1 and of this article shall apply in relation to that State; (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State : Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government. (2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to subclause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon. (3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify; Provided, that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification. The working and experience of Article 370 in the last Fifty years needs elaborate discussion and hence has been dealt with in the next chapter. CHAPTER· 6 H·IE WORKING AND EXPERIENCE OF THE INDIAN CONSTITUTION By the Accession, the Dominion of Indian acquired jurisdiction over the State of JWYlmU and Kashmir with respect to the subject of Defence, External Affairs and Communication. Like other Indian States which survlved as political units at the time of making of the Constitution of India, the State of Jammu and Kashmir was included as a Part B State in the first Schedule of the Constitution of India, as it was promulgated in 1950. (1) Status of The State In Original Constitution Since 1950, the working and experience of Art.370 would show that though the State of Jammu and Kashmir has its own Constitution but the application of the Indian Constitution is being extended gradually. Constitutionally the State of jammu and Kashmir is towards complete integration. Therefore, it would be desirable to record the gradual progress of intergartion and application of the constitutional provisions. Initially, we find that the State of jammu and Kashmir was included as part 'B' State, all the provisions of the Constitution applicable to the part B States contained in Art.238 were not extended to it. This peculiar position was due to the fact that having regard to the circumstances in which the State acceded to Indian, the Government of India had declared that it was the people of the State of Jammu & Kashmir acting through their Constituent Assembly who were to decide their own fate. The Articles which would apply of their own force to Jammu and Kashmir were ,I\I1s. I and 370 The application of the other Articles was to be determined by the President in consultation with the Government of State. The Legislative authority of parliament over the State, again, would be confined to those items of the Union and Concurrent list as correspond to matters specified in the Instrument of Accession. It would be very clear from the above that in 1950 need was felt to accommodate the State of Jammu and Kashmir in the newly formed Union so that the people of Jammu and Kashmir could decide their own destiny and future and fulfil their long awaited desire and legitimate aspirations. That is why the interim arrangement as stated in Art. 1 and . 370 were in the Constitution and would continue until the Constituent II • II 354 CENTRAL INDIA LAW QUARTERLY [2000 Assembly for Jammu and Kashmir made its decision. It would then communicate its recommendations to the President who would either abrogate Art.370 or make such modifications as might be recommended by that Constituent Assembly.' (ii) The Progress: Application Of Indian Constitution· The first step towards the application of provisions of the Indian Constitution to the State of Jammu and Kashmir took place in 1950, when in exercise of the power conferred by clause (1) (ii) of the present Article, the President made the Constitutional (Application to Jammu and Kashmir) Order, 1950.2 Another constitutional change took place when in the latter part of 1949, under the pressure from Abdullah Cabinet, Maharaja Hari Singh was obliged to abdicate in favour of this son Yuvraj Karan Singh. He was later elected by the Constituent Assembly of the State (which came into existence on oct.31 ,1951) as the 'Sadar·i·Riyasat' Thus, came to an end the princely rule in the State of Jammu and Kashmir and the Head of the State was hence forth to be an elected person, Government of India accepted this position by making a Declaration- of the President under Art. 370(3) of the Constitution to the effect that for the purposes of the Constitution 'government' of the State of Jammu and Kashmir , "Means the person for the time recognised by the President on the recommendation of the legislative Assembly of the State as the Sadar-i-Riyasat of Jammu & Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office." Next there was an agreement between the Government of India and of the State at Delhi June, 1952 as to the subiects over which the Union should have Jurisdiction over the State, subject to the decision ot the Constituent Assembly. It was also agreed that the Sadar-i-Riyasat would have the position of Governor or Rajpranmukh of a State under the Constitution of India vis-a-vis the Government of India. Then came, on the 8th August, 1953, the dismissal of the Chief Minister Sheikh Basu,D.O. Commentary on the Constitution of India Seventh Edn. VI)I.P 1996. p. 21-25. 1. Basu, 0.0.. Commentary on the Constitution of India Seventh Edn. Vol.8 p. 4 2. C.O.10,d 26.10.50-Gaz of India. Extraordinary, 26.1.50 Art 370 was adopted by the. Constituent Assembly of India on 17th Oct, 1949, namely "Temporary and Transitonal provisions The word 'Special' was added by the Constitutional (13th Amendment) Act, 1962 (wef 1.12.1963). 3. C. O.44.-S.R.O.Gaz of India. Extraordinary, pt-II Sec.3,d.15.11.1952. Vol.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 355 Abdullah by the Sadar-i-Riyasat on the ground of inefficiency and loss of confidence of the people. (iii) The Order of 1954 : A Mile Stone. The Constituent Assembly of Jammu & Kashmir started its lum;iiullilly III 1951. The A:s:sellluiy raiilied iile accession lo illlJia and also the decisions arrived at the Delhi Agreement as regards the future relationship of the State with India, in 1954. In pursuance of this, on 14.5.1954, the President, in consultation with the State Government, made the Constitution (Application to Jammu & Kashmir) Order, 1954. This order implements the Delhi Agreement as ratified by the Constituent Assembly and also supersedes the Order of 1950.. The Constitution (Application to Jammu & Kashmir) Order, 1954 brought a notable progress' in the area of application of Indian Constitution to the State of Jammu and Kashmir. According to this Order, in short, the jurisdiction of the Union will extend to all Union subject under the Constitution of India (Subject to certain alterations), instead of only the three subject of Defence, Foreign Affairs and Communications with respect to which the State acceded to India in 1947. The notable feature of the order of 1954 is that it deals with the entire Constitutional position of the State of Jammu & Kashmir within the framework of the Constitution of India. But the internal matters i.e. matters relating to the administration of the State of Jammu & Kashmir are to be governed by the State's own Constitution. (iv) The Constitution Of India Vis-A-Vis The Constitution. of Jammu And Kashmir. The Constituent Assembly of the State of Jammu and Kashmir framed Constitution for the internal governance of the State. In 1956, the Drafting Committee presented the Draft Constitution, which after discussion, was finally adopted on November 17, 1956, and given effect to from January 26, 1957. The State of Jammu & 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 India which governs all other state of the Union. Prior to 26-1-1957, the internal government of the State was governed by the Jammu and Kashmir Constitution Act, 1996.4 Here it may be recalled that during the period the 4. (J&K Act XIV of 1996 Samv) i.e. 1939 AD. • • 356 CENTRAL INDIA LAW QUARTERLY [2000 State was British Subject', the external affairs were performed by the British Government and conversely to this the State was enjoying 'internal sovereignty'. Likewise. when the Maharaja executed Instrument of Accession, the external sovereignty stood abdicated in favour of the government of India; but so far as internal sovereignty was concerned it was with the state and the state was responsible for the internal administration. Possessing such a special status and privileges, the State leaders began to seek an honorable place for their State in Indian federal structure on the basis of 'balance of power'? Their aim was to obtain special safeguards for the Muslims of Kashmir,6 who feared that they would be lost in the vastness of India'," if special status was/not given to this State. There is no doubt that leaders had a constant apprehension regarding the future of this State. To quote Sheikh Abdullah, "Certain tendencies have been asserting themselves in India which may in the future convert it into a religious state wherein the interests of Muslims will be jeopardised.t" Art. 1 of the Indian Constitution" applies to the State of Jammu and Kashmir; meaning thereby that the State of Jammu & Kashmir forms a part of the Territory of India- that is Bharat- a Union of 'States. This position is very much acknowledged by the State's Constitution. Art 3 of the Constitution of Jammu and Kashmir specifically provided as under: . "3. The State of Jammu and Kashmir is and shall be an integral part of the Union of India. 5. Teng and Kaul, op. cit. p.217. 6. Mullick, B. N. Kashmir' My Years with Nehru, (1979)p.11. 7. Abdullah Sheikh, cited In Gundevia, op.cit..p.37. 8. Abdullah Sheikh, Opening Address in Kashmir Assembly, cited in Teng and Kaul, op. cit., p.37. 9. Art.1 01 the Constitution 01 India reasas: 1. (1) India. that IS I::lharat. shall be a Union 01 states. (2) The States and the territories thereof shall be as specified inthe first Schedule . (3) The territories 01 India shall comprise-- (a) The territories of India shall comprise-- (b) The Union territories specified in the First Schedule; and ./ (c) Such other territories as may be acquired VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 357 A plain reading of the above Article makes it very clear that it is an affirmative assurance to the effect that the State of Jammu and Kashmir 'is' and 'shall' be an internal part of India". It does not make any difference that the Indian Government, from the very start, only includes those territories in the Union which immediately before the 26th November, 1949, were included in the Indian side of the State of Jammu and Kashmir."? The state Constitution on the other hand includes all territories including those illegally occupied by Pakistan in its fold on the basis of the fact that these were on the fifteenth day of August, 1947, under the sovereignty of the Ruler of the State.l ' The State Constitution also makes these territories an integral; part of the Union of India by its own force. But though the State of Jammu and Kashmir thus became a State, the provisions in the Part VIII of the Constitution relating to the States are not applicable to that State. 1:.:' Some salient features of the Constuitutional position of the State of Jammu and Kashmir showing points of difference from other States of the Indian Union are briefly stated below:- (A) Jurisdiction Of Parliament: The Jurisdiction of the Parliament of India in relation to Jammu and Kashmir shall be confined the matters enumerated in the Union List, and the concurrent list 1;J, Subject to certain modifications, while it shall have no jurisdiction as regards most of the matters enumerated in the concurrent list. There is no State list for the State of Jammu and Kashmir While in relation to the other States, the residuary power ot legislation belongs to Parliament, in the case of Jammu and Kashmir, the residuary power shall belong to the Legislature of the State, excepting certain matters (specined in 1969) tor which Parliament shall have exclusive power e.g. prevention ot the activities relating to cession or secession, or disrupting the sovereignty or integrity ot India. The power to.leqtslate with respect to preventive detention in Jammu and Kashmir, under the Art. 22(7), shall belong to the Legislature ot the State Instead ot Parliament, so that no law of preventive detention made by Parliament will extend to . that State. 10. Ibid First Schedule, entry No.15 11. Art. 4 ot me consnwnon 01 Jammu and Kashmir. 12. Prem Nath v. Slate otJ&K, AIR 1959 S.C.749. 13. Unlil ttle amendment 01 the order In 1963, the Concurrent list was altogether inapplicable to J&K. Its application'has been extended by amendment order of 1964, subject to exceptions introduced in 1972. • • 358 CENTRAL INDIA LAW QUARTERLY [2000 By the Constitution (Application to Jammu & Kashmir), Order, 1986, however, Art.249 has been extended to the State of Jammu and Kashmir, so that it would now be competent to extend the Jurisdiction of Parliament to that State in national interest (e.g., for the protection of the borders of the State from aggression from Pakistan on China), by passing a resolution in the Council of States. 14 Effect of transfer of jurisdiction to Union Parliament. When a Legislative power is transferred from the J&K Legislature to the Union Pariiamem, the State iaw on the subject wouid stand repeaied as soon as Parliament enacts a law on the same. 15 (B) Autonomy of The State in Certain Matters. The plenary powers of the Indian Parliament is also curbed in certain other matters, with respect to which the Parliament without the consent of the Legislature of the State of Jammu and Kashmir, where that State is to be affected by such legislation e.g. (1) alteration of the name or territories of the State (Art.3), (ii) International treaty or agreement attectmq the oispostron ot any part ot the territory ot the State (Art.253). Similar, fetters have been imposed upon the executive of the Union to safeguard the autonomy of the State of Jammu and Kashmir, a privilege which is not enjoyed by the other State of the Union,Thus. 14. The history of the expansion of the jurisdiction of the Indian Parliament over J&K is as follows: By the Instrument of Accession the Maharaja had acceded only three subjects to the Govemment of India-defence, communications and external affairs This was acknowledged in lart.370(1)(b)(i). But cl 4 of that Instrument provided that any future agreement between the Ruler and the Government of India 'Would be deemed to form the part of the Instrument of Accession.' By his proclamation of 25-11-49. Yuvraj Karan Singh (after his fathers abdication) directed that the Constitution of India be applied to the State as for as possible.. This was followed by the Constitution (Application to the J&K) Order. 1950 issued by the President under Art.370(1)(b)(ii). This order was replaced by the application order of 1954. including some new subjects, in pursuance of the resolution of the Constituent Assembly at J & K dated 1b-:.!-04. rouoweo by the concurrence ot the state Government. The High Court of J&K held [Nagishbandi v I.T..O.A 1971 J&K 120(paras.8-9») that the inclusion of new subject besides the three included in the Instrument of Accession was valid because of the Subsequent Agreement and also because the Instrument of Accession, being an act of State. could not be legally enforced. . Further expansion of the Union Jurisdiction has been made by the subsequent amendment to the application order of 1954 which has been upheld to be valid by the Supreme Court (Sampat vState of J&K A 1970 S.C. 1118 paras.s-s). 15. Naquishbandi v I.T.O.. A 1971 J&K 120 (para.14) Vol.XIIIJ SPECIAL STATUS TO JAMMU AND KASHMIR 359 (1) No proclamation of Emergency made by the President under Article 352 on the ground of internal disturbance shall have effect in the State of Jammu and Kashmir, without the concurrence of the Government of State [Art.352(6), as applied to J&K]. (II) Similarly,no decision affecting the disposition of the State can be made by the Government of India without the consent of the Government of State. . (iii; TiI~ Union lSitaii i IClV~ 110 IJUW~1 to lSUlS~~IIU ii II:! Cousiiiulion ur iit~ State onthe ground of failure to comply with the directions given by the. Union under Art. 365. (IV) Art. 356·357 of the Constitution of India relating to suspension of the Constitutional machinery in the state have been extended to the state by the Amendment Order of 1964. Failure of course will mean failure of the constitution machinery as set up by the Constitution of the State and not the provisions in part VI of the Constitution of the India As a result of this Amendment Order, where the failure of the Constitutional machinery takes place in the State of J.& K, two types of Proclamation may be made· (a) The President's Rule under Art. 356 of the Indian Constitution (as in the case of the other States of the Indian UniOn): (b) I he Govemo(~ Hule under section 92 at the Constitution ot J&K. for which there is no counter part in any other State of India. The powers under section 92 and Art.356 may exist together. 16 The first occasion when President's rule under Art.356 was imposed inthe State of Jammu and Kashmir was 7-9-1986 16 to follow the Governor's Rule under section 92 of the Jammu and Kashmir Constitution, which expired on 6·9·1986 and yet popular Government could not be restored. This Proclamation revoked shortly thereafter, upon the formation of a Ministry headed by Farooq Abdullah. On the next occasion it was imposed on 19-7-1990, and by various resolution under Art. 356(5), it had been extended up to 17-7-199517 At present their is a popular government headed by Farooq Abdullah. 16. Statesman. dated 8·9·1986; Door v. J&K State (1987) JKL.R. 109. 17. Statesman 9·2·95: 27·2·92; Door v. J&K.L.R. 109. • • 360 CEr-:JTRAL INDIA LAW QUARTERLY [2000 (V) The Union shall have no power to make proclamation of Financial, Emergency with respect to the State of Jammu and Kashmir under Art. 360. In other words, the federal relation between the Union and the State of Jammu and Kashmir respects "State rights" more than in case of other State of Union. (C) Fundamental Rights and Directive Principles: The Provisions of part 4 of the Constitution of India relating to the Directive Principles of State Policy do not apply to the State of Jammu and Kashmir, Special right as regards employment, aquisition of property and settlement have been conferred on'permanent resident of the State, by inserting a new Art.35A. Arts.19 (1) (f) and 31(2) have not been omitted, so that the fundamental right to property is still guaranteed in this State. (D) Separate Constitution For The State: While the Constitution for any of the other States of the Union of India is laid down in Part IV of the Constitution (made by a separate Constituent Assembly and pro-mulgated in 1957). (E) Procedure For Amendment of State Constitution: 1. The provisions of Art. 368 of the Constitution of India are not applicable for the amendment of the State Constitution of Jammu & Kashmir. While an Act of Parliament is required for the amendment of any of the provisions of the Constitution of India, the provisions of the State Constitution of Jammu & Kashmir (exceptin gthose relating to the 'relationship of the State with the Union of India) may be amended by an act of Legislative Assembly of the State, passed by a majority of not less than two-thirds of its membership. 2. On the other hand, as cl.(C) of section 147 of the Constitution of J & K provides the amending power of the State Legislature shall be confined to the provisions of the State Constitution and shall not affect any provisions of the Constitution of India18 18. Maqbool v . State of J .&K., AIR 1972 SC 963 para 23 VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 361 3. It is also to be noted that no amendment of the Constitution of India shall extend to Jammu & Kashmir unlesssit is so extended by an Order of the President Under Art. 370 (1). Hence, though Art. 368 has been applied to J&K, that would not curtail the power of the President under Art. 370.19 This means that Art.368 shall be applicable in J&K as in the rest of India, but the amendment made to the constitution of India under Art.368 shall be applicable to J&K only with the concurrence of the State Government, and followed by an Order of the President made Under Art. 370. Important Provisions of the State Constitution of Jammu and Kashmir. The Constitution of J.&K. declares the State of Jammu and Kashmir to be "an integral part of the Union of India."(S.3) The territory of the State will comprise the territories which, on August 15, 1947, were under the soverignity or suzerainty of the Ruler of the State (i.e. including the Pakistan occupied area of Jammu and Kashmir. This provision is immune from the amendment.(147,2nd Proviso). The executive and the legislative power of the State will extend to all matters except those with respect to which Parliament has powers to make the laws for the State under the provisions of the Constitution of India. Every person who is, or is deemed to be, a citizen of India shall be permanent resident of the State. If on the 14th May 1954 he was a State subject of class I and class II, or, having law fully acquired immovable property in the State, he has been ordinarily resident in the State for not less than 10 Years prior to that date.. Any person who before the fourteenth day of May, 1954, was a State subject of class I or class II and who, having migrated after the first day of March 1947, to the territory now included in Pakistan, returns to the State under permit for the resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature will on such return be a permanent resident of the State (s.6). The permanent residents will have all rights guaranteed to them under the Constitution of India (s.10). 19. Sampat v. State of J.&K, AIR 1970 SC para 13. • • 362 CENTRAL INDIA LAW QUARTERLY [2000 Under the Original Constitution of Jammu and Kashmir, there was a difference inbetween this State and the other States of India as regards the heads of the State Government. While inthe rest of India, the head of the State Executive is called "Governor" and he is appointed by the President (Arts.152 & 155), the Executive head of the State of Jammu and Kashmir was called Sadar-l-Biyasat and he was to be elected by the State Legislative Assembly. This anomaly has, however, been removed by the Constitution of Jammu and Kashmir (6th Amemndment) Act, 1965, as result of which the nomenclature has been changed from Sardar-i-Riyasat to Governor and he is to be "appointed by President under his hand and sear (ss.26-27) as in the other States (Art.155). In the result, there is no difference on this point, between Jammu and Kashmir and other states. As In other states, the Executive powers of the State will be vested in the Governor and shall be exercised by him with the advice of the Council of the Minister except in the matter of appointment of the Chief Minister (sec.36) and of issuing a Proclamation for introduction of "Governor's Rule in the case of break down of Constitutional machinery. (Sec.92) The Governor will hold office for a term of 5 years. The Council of Ministers, headed by the Chief Minister, will be collectively responsible to the Legislative Assembly. The Legislature of the State will consist of the Governor and two houses, to be known respectively as the Legislative Assembly and the Legislative Council (Sec.46). The Legislative Assembly will consist of one hundred members' chosen by the direct election from teritorial constituencies in the State and two women members nominated by the Governor. Twenty-four seats in the Legislative Assembly will. remain vacant to be filled by the representatives of the people liVing in Pakistan occupied area of the State. The Legislative Council will consist of 36 members (Sec.59). Eleven members were elected by the members of the Legislative from amongst the persons who are residents of the provinces of kashmir provided that of the members so elected at least one shall be a resident of Tahsil Ladakh and atleast one a resident of Tahsil Kargil, the two outlying areas of the State Eleven members will be elected by the Legislative Assembly from amongst persons who are resident of Jammu Proelnce, The remaining 14 members will be elected by various electorates, such as Muncipal Councils such as local bodies. The High Court of the State will consists of a Chief justice and two or more other Judges (93). Every Judge of the High Court will be Vol.Xlllj SPECIAL STATUS TO JAMMU AND KASHMIR 363 appointed by the President after consultation with the Chief Justice of India and the Governor, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. There will a be Public Service Commission for the State. The Commission along with its Chairman will be appointed by the Governor. Every member of the civil service or one holding a civil post will hold office under the pleasure of the Governor (Sec. 125). The official language of the State will be Urdu. but Englsih will unless the legislatures by Law or otherwise provides, continue to be used for all official purposes of the State. (Sec.145). The State Constitution may be amended by introducing a Bill in the legislative Assembly and getting it passed in each House by a majority of not less than two-third of the total membership of that House. But no Bill or amendment seeking to make any change in the provision relating to the relationship-of the State with Union of India (sec.3). the extent of the executive and legislative powers of the State (Sec.5) or the provisions of the Constitution of India as applicable in relation to the State shall be introduced or moved in either House of the Legislature (Sec.147.2nd Proviso) The working and experience of the Indian Constitution vis-a-vis. The Constitution of J.& K. leads to the strong conclusion that the Presidential Order of 1954 under article 370 may be said a precursor of new trend in the process of integration and extending the application of various provisions of the Indian Constitution. An over view of the past experience has recorded a satisfactory progress which demonstrates the working of Indian federal system. Yet we must not content with such achievements and still keep on making Constitutional efforts to make the people of J.& K. realise that their interests and rights are quite secure so that they could join the mainstream of progress. Although 50 years of working and experience has marked a satisfactory progress but that period cannot be regarded as a sufficient time to develop federal principles and to achieve the very object of federal polity enshrined in the Indian Constitution. The installation of popular Government and introduction of democratic process of decentralisation of power by introducing Panchayati Raj provides a tine example in this regard. • • CHAPTER 7 GREATER AUTONOMY FOR JAMMU AND KASHMIR The state legislature of Jammu and Kashmir responding to the call of Chief Minister Farooq Abdullah passed a resolution in favour of greater autonomy to the State thus approving the controversial autonomy report, which demanded that autonomy be restored to its pre-1953 position which implies that the Centre shall have jurisdiction over only three departments of defence, external affairs and communications. Restoration of autonomy to Jammu and Kashmir was the mainplank of National Conference election manifesto for assembly elections of September 1996. Soon after taking over the reins of the administration, the Farooq Abdullah government set up ~ 9-member State Autonomy Committee on Nov. 29, 1996. The Committee submitted its report to the State legislature in April 1999, which was endorsed by both the houses of the legislature in June, 2000. The resolution has put the BJP led NDA government is a fix. But Farooq Abdullah, the Chief Minister of Jammu and Kashmir, maintains that if Jammu and Kashmir has to remain a part of India autonomy has to be qiven.! The resolution has received criticism from several quarters including the Congress and the Bhartiya Janata Party. The Union Cabinet outrightly rejected the resolution. Mr. Ram Jethmalani, the former law Minister, reacted by saying "legally, it, is, a non-event but it has serious political lrnplications'v' However later on he adopted a more conciliatory approach when he said that the State Autonomy Report' and the resolution it inspired were too general in their scope and if the State.government could instead come up' with specific details on the manner in which Union laws had hampered the interests of Jammu and Kashmir in their application, then the Centre would be more sympathetic. Arun Poorie, Editor-in-Chief, India Todaysays: "Farooqs demand in not merely a matter of one disgruntled State. No, it is significant for it strikes at the absolute heart of India's being, indeed questioning the very 1. India today, Feb, 7, 2000 p. 24, 2. Ibid. July 10, 2000 p. 28. VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 365 existence of India the way it has been. Devolution of power to the States is inevitable, but autonomy is a far more fundamental issue for its implications are enormous." "What Farooq wants arnonq other things, is that all the symbols of power his state had prior to 19S3 be restored. Like the Chief Minister being called prime Minister and the Supreme Court having no jurisdiction there. His critics, however, insist that his own father, in tandem with Indira Gandhi, agreed to the dilution of these syrnbols.v On the other hand the Jammu and Kashmir government maintains that Jammu and Kashmir position in the Union of India is unique which is a historic reality and no amount of diatribe can change it. This position was gradually changed through 42 Constitutional orders since 1953. By restoring the original position and giving more powers to Jammu and Kashmir there is no danger to the integrity of the country. Removing mistrust and fulfilling regional aspirations will never weaken the State's ties with rest of the country. In fact, it will strengthen the tie as these would be based on trust and fairplay, leaving no room for suspicion and consequent alienation of the people." In response to the charqe regarding restricted jurisdiction of Supreme Court and Election Commission it is argued that the report does not bar Supreme Courts original jurisdiction over J & K under Art. 131. What the report asks for is ornittinq the application of Art. 218 extended to J & K by the first Amendment Act 1959. There is no recommendation to set up State's own Supreme Court or bar Supreme Court's original jurisdiction. As regards the jurisdiction of Election Commission of India, it is said that Jammu and Kashmir has its own People Representation Act, 1957. Election to the State Assembly are held under the State Act and not under the Central Act. Prior to amendment in J& K Constitution State Election Organisation used to conduct elections, The Report Seeks to restore it to original position. But elections to the Parliament are held under the Central Act and win continue to be conducted by the Election Commission of India." We have seen that the Constitution (Application to Jammu and 3, Ibid, 4. Official website of J & K Government, India www.JammuKashmir.nic.in/view/july 8, htm-42k • • 366 CENTRAL INDIA LAW dUARTERLY [2000 Kashmir) Order 1954 and the subsequent orders passed from time to time have extended the Jurisdiction of the Union Parliament to matters enumerated in the Union list, and the concurrent list, subject to certain modifications, while it has no jurisdiction as regards most of the matters enumerated in the concurrent list. There is no State list and the residuary power lies with the State legislature. There are certain other matters with respect to which Parliament cannot make laws without the consent of the State Legislature. Similar fetters have been imposed upon the Exeutive of the Union to safeguard autonomy of the State of Jammu and Kashmir, Thus, Jammu and Kashmir enjoys greater autonomy as compared to other States of the Union. As reqards the need for restoration Of autonomy, the arqument of Mr. r-arooq Abdullah IS that the autonomy resolution expresses the wishes of the Kashmiri people and that it was a part of election manifesto of the National Conference for Assembly elections of 1996, which won him a rnaioritv in the elections. But even if the resolution has been passed bv a voice vote, whether it represents the true voice of the Kashmiris is doubtful, taking into consideration the degree of faith and confidence enjoyed by the politicians these days, whether in J & K or anywhere else. Assuming that the common people of J & K desire greater autonomy, how far they understand the true implications of greater autonomy when illiteracy & poverty are widespread is another question which needs to be anwsered. When most of the politicians today are unaware' of the legal implications of greater autonomy, how can we expect the people, who are struggling tor their existence to dwelve into these legal and philosophical terms. Again one should not forget that Kashmiris not only include those who are at present living Jammu and Kashmir, but also those who have left their abode under compelling circumstances either to save their life or to earn a living. It seems that the move tor autonomy is politically motivated. Congress leader Ahmed Patel has rightly remarked "instead of focussing on development, he (Farooq Abdullah) has raised an issue to divert the attention of the people from his shortcomings."S Those who wish to set the clock back must give valid reasons for the same. Mr. Jagmohan, the former governor of J & I< rightly says. 5. See India Today. July 10, 2000 Vol.Xlllj SPECIAL STATUS TO JAMMU AND KASHMIR 367 "Those who demand the pre-1953 position seldom address themselves to concrete questions. They suppress the tact that, in the absence of full financial integration with the Union, J & K would be left with no resources at all for developrnenr'P "In fact, no provision of the Indian Constitution has been extended to J & K which is not necessitated by practical considerations and which is not in the inferest of common Kashmiris." He further adds that the extension of jurisdiction of the Election Commission forthe Supreme Court merely make available better justice and better accounting. Even, Mrs. Indira Gandhi refused to 'set the clock back'. She did not agree to scrap any of the essential links established over time. Parthasarthi and Afzal Beq, who reviewed these links on behalf of Mrs. tiandihl and :::iheikh Abdullah repectively, could not find anything worth changing. 7 same may argue that as a matter of fact, the demand for greater autonomy may not be Justified but as a matter ot principle It is. Ihe answer to trus is that ultimate aim of all principles or dogmas IS the welfare of mankind. The very concept of State has emerged from this basic prmciple. In Jammu and Kashmir the Government enjoys power, the terrorists have the pistols. Hut the common Kashrrun has none, No power to protect his rights and no pistol to save his life. Neither azadi nor 'autonomy but political will not motivated by selfish ambitions and sincere efforts alone can salve the problem of Jammu and Kashmir. The working and experience of the government in J & K leads to a strong conclusion that after passage of five decades the qovernrnents have not been able to create confidence amongst the people. It is high time that the govt at the Central and State level come togeiher and Try to resoive this problem. There is no harm in discussing autonomy with Mr. Farooq Abdullah. His call for nationwide debate must be welcomed. But before deciding the fate of Kashmiris, the leaders must ensure active participation ot the affected interest and the interest of the nation as a whole, of which Jammu and Kashmir is the most beautiful part. 6. JagmQhan.My Frozen Turbulence in Kashmir' p. 732 7. Ibid p. 731 • • CHAPTER - 8 LEGAL ASPECTS OF HOLDING PLEBISCITE Plebiscite in International Law is regarded as one of the methods by which a new territory may be acquired A recent example of aquiring through plebiscite is that of West Irian. Both Netherlands and Indonesia claimed the territory of West Irian. Through the efforts of United Nations, it was decided that a plebiscite in the West Irian should be held and the people of West Irian should be given the freedom to decide whether they would like to merge with Nether lands or Indonesia Consequently, plebiscite was held under the auspices of United Nations and the inhabitants of West lria.t decided to merge with Indonesia 1 Plebiscite has been defined as under.... A term borrowed from the French for a vote of all the electors in a country or given area taken on some specific question. The most familiar example for the use of the plebiscite in French history was in 1852, when the coupd' etat of 1851 was confirmed and the title of emperor was given to Napolean-1I1. Its essential characteristics as distinguished from the referendum (q.v.)., is this: a plebiscitary vote decides a specific question, adhoc and adtoro hac vice. It is not as in the case of the referendum, a normal method or procedure of voting applied on a general system to certain classes of legislation. It is sometimes used in England to decide Question of municipal rates or other local questions, and extensively in the dominions and the United States on certain local or state questions. In Europe its use has been almost wholly political and national. In that sense it is a method of ascertaining the general desire of the inhabitants of a given territory or area. As a means of settling the destination of populations and territories, this method was first used in the /-rench Hevolutron to detend the wholesale annexations at territory made by the conquered f-rench Hepubuc, and applied subsequently by Napolean II. It was reused by Napoleon III and applied (successfully for Victor Emmanuel) in the dutches of North Italy during the years 1859-60. The Peace Conference of 1919 proposed the taking of 17' plebiscites to settle ouncun national questions ot which 8 were actually held. at these the I urklsh plebiscite I ranscaucasia was a tarce. Others, which decided 1. Kapoor, S.K. lntematicnal law, (1994)p.16H62. VOI.XIIIJ SPECIAL STATUS TO JAMMU AND KASHMIR the fate of Alleutein, Marienwerder, of the Burgenland, of Klagerfurt, the economic destiny of Luxembourg, the attrib ution of the Northern and Sourthern Zones of Siesvig; and the partition of Upper Siesvig, had substantial and important results. The Versailles Treaty provided for a plebiscite of the Saar district in 1935 to decide the future of the region 2 . Thus, Plebiscite is a vote by the people of an entire country or district to decide on some issue, such as choice of a ruler or government, option for independence or for annexation by another power or question of national pol1cy.3 In the succeeding pages we shall examine the legal aspect of holding plebiscite at this belated stage in order to legalise the 'Instrument of Accession 'executed by the Ruler of the State of Jammu and Kashmir. The pledge and assurance given by the Government of India and popular leaders of that time without carefully studying the constitutional implications of the assurance that the question of accession will be decided by holding a plebiscite, eclipsed the validity and legality of the Instrument of Accession. Here it may be desirable to mention that it was India who for the first time objected the act of negotiating of the Ruler of Junagadh with Pakistan and ultimately the will of the people was ascertained through holding plebiscite, It seems that on the issue of executing instrument of accession by the Ruler of Kashmir, it was Pakistan who raised the voice that Accession to Dominion' of India is illegal. Pakistan claimed that there should be plebrsctte and the people ot Jammu and Kashmir should be given freedom to decide whether they would like to merge with India or Pakistan. Even before the accession, in a telegram dated October, 25,1947, addressed to the Prime Minister of United Kingdom and repeated the next day to the Prime Minister of Pakistan, Mr. Nehru said: "I should like to make it clear that the question of aiding Kashmir in emergency is not designed in any way to influence the State to accede to India. Our view :C. t::ncyclopap!J13 eruanruca. VOl. 1l:l. p. (:c. 3. Encycfcpaeoia Britannica- Micropaedie Vol. VIII p. 39 . • • 370 CENTRAL INDIA LAW QUARTERLY [2000 which we have repeatedly made public is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of the people and we adhere to this view."4 In a telegram dated October, 28,1947 to the Prime Minister of Pakistan, Mr. Nehru aqain said: " In regard to accession also it has been made clear that this is subject to reference to people of the State and their decision. Government of India have no desire to impose any decision and will abide by the people's wishes but these cannot be ascertained untill peace and law and order prevail. s In a telegram dated Oct. 31,1947 to Mr. Liaquat. Ali Khan, Mr. Nehru again said: "Kashmir's accession to India was accepted by us at the request of Maharaja's Government and the most numerously represented popular organisation in the State which is predominantly Muslim. Even then it was accepted on the condition that as, soon as the invader has been driven from Kashmir soil, and law and order is restored; the people of Kashmir would decide the question of accession. It is open to them to accede to either Dominion then," He proceeded to say:" Our assurance that we shall withdraw our troops. from Kashmir as soon as peace and order are restored and leave the decision about the future of the State to the people of the State is not merely a pledge to your Government but also to the people of the Kashmir and to the world. 6 Broadcasting to the nation on November 2, Mr. Nehru...said: Let me make it clear that it has been our policy all along that where 1liere is a dispute about the accession of the State to either Dominion, the decision must be made by the people of the State. It was in accordance with this policy that we added a proviso to the Instrument of the Accession of Kashmir.? Mr. Nehru was clearly referring to the collateral exchange of letters between the Maharaja of the State. and Lord Mountbatten that accompanied the Instrument of Accession. He said :"We have declared that the fate of Kashmir has ultimately to be decided by the people. That pledge we have given, .and the Maharaja had supported it, not only to the people of Kashmir but to the 4. White paper on Jammu and Kashmir, pAS. 5. lbid., pA8. 6. Ibid., p.S1. 7. Ibid.,p.S3. VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 371 Wo(ld. We will not, and cannot back out of if. We are prepared when peace and law and order have been established, to have a referendum held under international auspices like the United nations. We want it to be fair and just reference to the people, we shall accept their verdict." The next day in the telegram to Mr. Liyakat Ali Khan, Mr. Nehru drew his attention to his broadcast the previous evening. "I further stated thatwe have agreed to an impartial international agency like the United Nations supervising any referendum. This principle we are prepared to apply to any State where there is a dispute about accession." In a statement on Kashmir in the Constituent Assembly On November 25,1947, Mr. Nehru referred to the events prior to the tribal raid and said : 'We made it clear to both of them (Sheikh -Abdullah and representatives of Maharaja) that while we would welcome the accession of Kashmir, we did not want any hurried or forced accession and we would rather wait for the people to decide. Sheikh Abdullah was himself of . this opinion.? Indeed the Indian leaders failed to visualise the impact and intricacy of the question of holding 'plebiscite' after normalcy is restored in the State 10 (I) How The Question Of 'Plebiscite' Introduced The answer to the question that 'how was this question of plebiscite introduced in this matter? has been given by M.C.Mahajan in the following words: There is an interesting story behind it. Some time after the army of India had entered Kashmir, negotiations started between India and Pakistan with Lord Mountbatten's intervention to bring about a settlement. Mr. Liyakat Ali Khan, the Head of the Pakistan delegation, came to India to negotiate. One of the matters was the Kashmir issue 10. I was called from Srinagar or Jammu to be present in Delhi when these negotiations were goil)9 on. One of the terms of the settlement was plebiscite. I was 8. Ibid., p.55. 9. Ibid p. 69 10. Ct. Alan Johnson he (Prime Minister) was persuaded into doing so by Lord Mountbatten. 10. C.F. Allan Johnson pp. 250 and 252. • I 372 CENTR.AL INDIA LAW QUARTERLY [2000 against any such terms .... The idea was to ask me to fly to Jammu and get His Highness' consent to the terms of the settlement of which a draft was given to me. The term plebiscite was not acceptable to me. I raised the question about the meaning at the word. A dictionary was sent for and it was discovered that it did not necesarily mean a decision by direct adult franchise. It could be plebiscite even if the duly elected representatives of the people, according to the election law of the State. supported the Maharaja's act of Accession. Such support it was suggested would be sufficient. By way of compromise, I said this term would not do any harm as the only politically conscious party in the State that could form a Government was Sheikh Abdullah's party and it was of the same opinion as the Maharaja. Nothing, however, came out of those negotiations and the matter was dropped." I have always had a feeling that when our Prime Minister agreed to a plebiscite, he had this kind of plebiscite in view, and if this is correct, his promise stands fully discharged becasue Sheikh Abdullah's Government, elected on adult franchise, ratified the Maharaja's act. Even later on when the state's new constitution was formed, the duly constituted Constituent Assembly unanimously ratited it and so, In my opiruon. whatever promises the Prime MInister made stand fully discharged and the Security Council can no longer continue harping on the resolution of 1949.11 (II) Holding - Plebiscite - Unjustified And Unwarranted ; The Indian stand on holding plebiscite is that from the very day of acceptance of accession, jammu and kashmir became part of India. Jammu and Kashmir has had several elections since then and people have had the oporturuty of excercising their franchise. America. Britain and other Western countries have also been supporting India's stand since 1990 and have consistently expressed the view that plebiscite in Kashmir is no more essential and that India and Pakistan should settle their problems in accordance with Simla Agreement (1972),12 According to the Congressional Paper, prepared, by the Congressional Research Service (CRS) of America, entitled.The Kashmir dispute : historical background to the current struggle" published in September 1991 ,the plebiscite, as envisaged in the U.N. resolution at 11. Mahajan. M. C.. Looking Rack, 1963 pp. 281-282. See Appendices I-II 12 Cf Kapoor, SKop.citpp 873-74. VoLXIII] SPECIAL STATUS TO JAMMU AND KASHMIR 373 1947-48 has virtually lost its relevance as a solution to Kashmir problem. Earlier in June 1991. U.S.Congress had rejected the olea of plebiscite in Jammu and Kashmir. According to the Congressmen Stephen Solarz, holding of plebiscite in Kashmir in order to give the people of the territory the opportunity to determine their own future "would constitute a highly unjustified and unwarranted interference in the internal affairs of India, and' would have a chilling effect on Indo-US relations" He added, "if you give every minority the right to secede democacy will cease to exist."13 Some jurists are of the view that plebiscite IS necessary in this case. Advisory opinion of the International Court of Justice is that in the context of colonialism, the principle of self-determination has become a binding principle of International Law. Thus the principle of plebiscite can be applied to established states. Indeed Kashmir'S IS not a colonial situation and hence principle of self-determination, and for that matter plebiscite, cannot be applied as a binding principal of international law in respect ot Kashmir. Prof. Rahamtullah Khan also aptly said .. The principle (i.e. the principle of self determination) must be deemed to have an application in the process of dacolonisation alone. It could not be applied to established States in their territorial disputes. No such State is likely to espouse this principle and invite self destruction... For what else would it be but self- destruction if India accede to the demands of the Nagas, the Mizos and others or if Iraq concedes the demands ofthe Kurdish claim or if the United States allowe extremist Black panther demands for a seperate Neqroland."!" A step further it may also be noted that the idea of holding a 'plebiscite does not find place either in the Government of India Act, 1935 nor in the Indian Independence Act, 1947, therefore, the assurance given by the prominent leaders to the peoples' of the State of Jammu and Kashmir is quite out side the statutory provisions under which the 13. Ibid 874. 14. Rahmatulah Khan, "The U.N. Handing of the Kashmir Problem" in Asian States and the Development of Universal International Law "edt by RP Anand (1972) p. 108 at p. 118 See also S.K. Kapoor." The Principle of Self-Determination Under International Law and the Indian practrce." lawyer. Vol. VIII-II (HI/ti) p. 1 bl:J at pp. 1/4-1/':>. • • 374 CENTRAL INDIA LAW QUARTERLY [2000 Instrument of Accession was executed by the Ruler of the State. The idea of deciding the question of accession through the means of holding plebiscite holds no good in law, And non-holding of plebiscite will not affect the status of Jammu and Kashmir which it has been enjoying under the Constitution of India. The State of Jammu and Kashmir is an integral part of Union of India. CHAPTER - 9 AMENDABILITY OF ARTICLE 370 A written Constitution is a sine quanon of a federal system. A written constitution is, therefore, essential if federal government is to work well. It in fact provides the frame-work of the governmental system in the country. Under the Constitutional assumptions, all power derives from the people who delegate it in the constitution to representative institutions which they create.' The Constitution is thus the basic source from which the government must derive its authority. From a legal point of view, all powers flows from it.2 A Constitution is, therefore, expected to fulfil the legitimate expectations and aspirations of the succeeding generations and enable them to solve their problems in an orderly manner without disturbing the frame-work as provided in the Constitution itself. In the fast changing society new problems arise at reqular interval and are expected to be solved in the light of provisions of the Constitution.v With a view to keep pace with the developments in the society and to fulfil the need of the day, a process of amendment in the constitution is essentially made. Though, the process may be rigid or flexible. This amending process, generally, in most modern constitutions is aimed at safeguarding, one or more of four objectives. The first is that the Constitution should be changed only with deliberation and not lightly or wantonly; the second is that' the people should be given opportunity of expressing their views before a change is made; the third is that, in a federal system, the powers of the units and of the Central Government should not be alterable by either party acting alone; and fourth is that individual or community rights- for examples of minorities in language or religion or culture-should be satequarded." The framers of the Indian Constitution were very wise enough in adopting a middle path between the rigidity and flexibility. In moving the motion inthe Constituent Assembly for consideration of the Draft Constit~tion, the Chairman of the Orafting Committee, Dr. Amberdkar, observed: 1. Eastlake v. Forest City Enterprises, 426 U.X.668,672. 2. Schwartz. Bernard. Constitution law- A Text Book (1979) 3. Tope.T.K. Constitutional Law of India. Second Edn.p.LXXII. 4. Wheare K.C.,Modern Constitutions, (First reprinted in India) 1984,p.83. I I 376 CENTRAL INDIA LAW QUARTERLY [2000 "The provisions relating to amendment of the Constitution have come In for a virulent attack at the hands of the critics of the Draft Constitution. It is said that the provisions constained in the Draft make amendments difficult. It is proposed that the Constitution should be amendable by a single majority at least for some years. The arguments is subtle and ingenious......lt is difficult to conceive a simpler method of amending the Constitution. What is said to be the absurdity of the amending provisions is founded upon a misconception of the position of the Constituent Assembly and of the future Parliament elected under the Constitution. The Constituent Assembly making a Constitution has no partisan motive. Beyond securing a good and workable Constitution it has [;0 axe to grind. In considering the article of the constitution, it has no eye on getting through a particular measure. The future Parliament, if it met as a Constituent Assembly, its members will be acting as partisans seeking to carry amendments to the Constitution to facilitate the passing of party measures which they have failed to get through Parliament by reason of some article of the Constitution which has acted as an obstacle in their way. Parliament will have an axe to grind while the Constituent Assembly has none. That is the difference in between the Constituent Assembly and the future Parliament. That explains why the Constituent Assembly though elected on limited franchise can be trusted to pass the Constitution by simple majonty and why the Parliament though elected on adult suffrage cannot be trusted with the same power to amend it"5 Political SCientist like Wheare obseved that In this respect the Constitution of India strikes a good balance. It places extra safeguards in the amending process so far as those parts of the Constitution are concerned which contain the division of power in between the States and the Union and it requires the concurrence ot the leqrslatures ot at least " half the States in their amendment. The amendment of the rest of the Constitution, however may be carried out by the legislature, provided it receives the approval at an absolute majority ot the rnemcersrup ot each house and a two-third majority ot those present and votmq. In some Constitution also there are found provisions which are te continue in operation until the legislature otherwise provides. thus making a part of the Constitutions SUbject to a ditterent amending process. I he variety in the amending process is wise, but it is rarely found 6 . 5 CAD, Vol. VII pp 43-44 6. Wheare. K.C. Modern Constitution,!. 98. VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 377 (I) Power of Parliament to amend the Constitution The power and procedure to amend the Idnian Constitution is provided under Article 368. Art. 368 does not prescribe the form in which amendments may be made. An amedment may, therefore, add a provision to the Constitution without altering its existinq text? Provided the procedure as laid down in Art. 368 is complied with. Parliament may, by a Constitution Amendment Act. amend each Article of the Constitution including Art. 368 itself,8 but not so as to destroy the 'basic feature' of the Constitution''. A reading of the power of Parliament to amend the Constitution makes it very clear that there is no express limitation on the power of Parliament to amend the Constitution. The theory of 'basic feature operates as an implied limitation on the power of Parliament to amend the Constitution. After the re-affirmation and extension of the applicability of the doctrine of basic feature in the Minerva Mills case it is now evident that so long as the decision in Kesavanand Bhatti is over turned by another Full bench of the Supreme Court (Which may come only as an extraordinary event), any amendment to the Constitution is liable to be interfered with by the Court on the ground that It affects one or other of the baSIC feature of the Constitution.!" One more development of the doctrine of basic feature is that the court has declined to foreclose the list of basic structure as suggested by the different judges in Kesavanand Case. In Rajnarain's Case it has been observed that the claim of any particular feature of the Constitution to be a Basic Feature would be determined by the Court in each case that comes before It. In the result, it is impossible for those responsible for amending the Constitution to guess what surprise lies in store for them before the Supreme Court. So far, quite a multitude of features have been acknowledged as basic by different judges individually in different cases; though there is no consensus as regards each of them. 7. Shankari prasad Vs. Union of India, AIR, 1973. S.C. 1461. 8. Keshvananda Sharti v, State of Kerala, AIR, 1973 S.C. 1461 9. Indira v. Harnarain, AIR, 1975 S.C.2299, Minerva Mills v Union of India, AIR 1980 S.C. 1789. 10. Sambhamurthy v. State of A.P. AIR, 1987 S.C. 663 (para 45). • I 378 CENTRAL INDIA LAW QUARTERLY [2000 (II) Abrogation of Article 370 Very often voices are raised from various quarters that Art. 370 should be abrogated. It is pointed out that this will help the solution of the Kashmir problem. This view is now gaining ground and deserves to be given serious consideration. No less important man that former Jammu Kashmir governor Mr. Jagmohan has expressed the same view. In his words. .. A clear and objective reappraisal ot Article 370 would reveal that its overall impact has been disintegrative, that it has kept alive the two-nations theory, that its protective wall has merely helped an oligarchy to benefit at the expense of poor masses, and that it has created perpetual tension amongst the people of Jammu, ladakh and the Valley." He added further, "Moreover, in the present context, when Jammu and Kashmir has become vulnerable to both external intervention and internal subversion and ArtiCle ~7U IS playing no small part In enabling the hostile elements to cause internal subversion and facilitate external intervention, it is incumbent upon the Union Government of take steps to delete this Article to effectuate the duty cast upon it by Article 355. The law should also adjust itself to the changing conditions." I here is no torce in the view at Mr. Jagmohan tor Article 355 provides, "it should be the duty of a Union to protect every State against external aggression and internal disturbances and to ensure that the Government of every state is carried on in accordance with the provisions of this Constitution." Other view is that legally and constitutionally it is not possible to abrogate Article 370. 11 Article 370 is a special provision for amending the Constitution in its application to the State of Jammu and Kashmir, Article 368 does not curtail the power of the President under Art. 370.12 The power to modify includes the power to enlarge or add to an existing provision 13, or to abroqate it, if necessary. It is co-extensive with the power to amend and is not confined to minor alterations only.14 11. The Hindustan Times. dt03-05-90. 1~. Sampat v. State 01 J&K, AIH, 191U s.c. 1118. 13. Sant Singh v. President of India, AIR. 1961 S.D. 1519. 14. Ibid.p.1521. I Vol.Xlllj SPECIAL STATUS TO JAMMU AND KASHMIR 379 As Article 370 (3) itself makes it clear that the Article 370 was not intended to be a permanent feature of the Constitution. It was intended to be a temporary provision. That is why, President was empowered to abrogate it. Parliament is empowered to. amend, repeal or abrogate any part of the Oonstitution except those parts which form the basic structure of the Constitution. Obviously, Artilce 370 does not constitute basic structure of the Constitution.l> The view expressed obove appears to be incorrect for the obvious reason that under Art. 370 the State of Jammu and Kashmir enjoys a special status because of the fact that only limited subject were mentioned in the Instrument of Accession. It provides for a unique feature of Indian Federalism under the Indian Constitution. Abrogation of Article 370 would mean the violation of the terms of Instrument of Accession. In other words it tantamounts the disruption of federal principles. Federalism forms a basic feature of the Constitution.lf Therefore, abrogation of Article 370 will certainly offend the 'basic feature' theory. It is respectfully submitted that the working and experience of the Constitution of India shows that Article 370 need not be amended. Bulk of the Indian Constitution has now been made applicable to the State of Jammu and Kashmir. A time is perhaps now not far when the whole of the Indian Constitution shall be made applicable through the process of Art. 370 and the Article 370 will itself stand repealed by implication in due course of tirne. (III) Future Implications The formation of un-popular governments, induction of criminals into the politics with a view to earn power and fortune, rise of fundamentalism, regionalism. terrorism etc. have brought home that the people of the country are being deprived of their life and property. This tendency is very fatal to the nations unity. A feelin 9 of fear is also being seen amongst the people. All this is not because of the existence of Artic;e 370. but it is because of the incapability and lack of will of the Government of the State. The domestic violence is indeed. generating the feeling of fear and insecurity amongst the people Legally and consitutionally speaking the existence of Article 370 in the Indian Constitution will not operate as a wall but a short tunnel through which the bulk of Indian Constitution is yet to be made applicable to the State of Jammu and Kashmir so that the people of the State could find themselves among other Indians. 15. Dr. Kapoor. International Law, Appendix-II p.875. 16. Kesavananda Bharti v. State of Kerala, AIR 1973, S.C. 1461, Bommai v. Union of India, (1994) 3 SCC-1. • I CONCLUSIONS Jammu and Kashmir, the 'Abode of Gods', the Paradise on Earth, the land of snow-laden Majestic mountains, of fragrant flowers, scenic landscape, the 'Cradle of Culture and Civilization' has since ages attracted saints and seers and lovers of nature from far afar in search of peace and tranquility. Yet the irony of fate is that where on the one hand, nature has been most benevolent, on the other hand the people of Kashmir are suffering. Kashmir and its people may 'be compared to the most beautiful 'Rose' on the Earth, surrounded by thousands of thorns. Jammu and Kashmir with its unique geographical position on the map of India is one of the most strategic points in the world and is encircled by Russia, China, Pakistan, Tibet and Afghanistan. It is its great value strategically which always kept the British authorities in India trying to get the region out of the control of the Dogra Government of the Maharaja. On the eve of Independence, the Britishers were successful in their sinister design and left the sub-continent burning in the flames of communalism, regionalism, hatred and violence which ultimately culminated into the rise of terrorism and fundamentalism. As a sequel to this the people of Jammu and Kashmir have been deprived from enjoying the freedom in its true sense. A study of the legal documents makes it clear that the Accession of Jammu and Kashmir is final and irrevocable. Y~t the Fact remains that we have, during the last 50 years failed to convince the people of . Kashmir that their interests shall be secured by remaining a part of India. This fact indeed presents a very dismal picture of the State of governmental affairs at the State as well as Central level whichcould not inspire the people to have faith in the socalled democratic system. The Indian Government has spent billions in Kashmir to defend its frontiers, to run the local government, to improve the standard of living, but little has been done to gain the confidence of the Kashmiris. In the words of Shri Jai Prakash Narain, "the story of Kashmir is an account of confused aims, unsure methods, insincere ideals.'" It is true that Pakistan has played a major role in provoking hostilities by supporting terrorist activities, uui iiie Gliiiiuut:: 01 illuiGiIl ieaders GlIlU ihe ieaders 01 Janunu allli 1. Narain Jaiprakash: Our Great Opportunity in Kashmir Hindustan Times, April 20, 1964 cited in 'The Kashmir Question' AG Noorani. Appendix IV. VOI.XIII] SPECIAL STATUS TO JAMMU AND KASHMl8 Kashmir, who were more committed to their political ambitions rather than the people of the State, is mainly responsible for the present plight of the Kashmiris, both Hindus and Muslims. As has been rightly remarked by Shri Bazaz, "The Kashmir problem does not arise out of the fact, as is commonly believed, that Pakistan wants to have the Valley by hook or by crook, but because Indian leaders have failed to convince the large majority of the Kashmiris that they can live happily and fearlessly under the Hindu Majority rule in India. We may say that whereas on one side, the Muslim majority of Kashmir feels insecure, on the other side, 'the condition of the non- muslims, who are in minority in the State is no better. They do not enjoy the rights enjoyed by the minorities in other states and are targets of terrorists who want to eliminate them from the region, as is clear from the recent massacres of the Amarnath pilgrims at Pahalgam and the subsequent killings at Anantnag, Doda in August, this year, which came at a time when dialogues going on between the Centre and the Hizbul Mujahideen . Suggestions As recards the solution to the Kashmir Problem, the first is that the dispute may be settled by negotiations with Pakistan and by entering into an agreement with' it. Earlier efforts in the torrn of Tashkent Pact::! or Simla Agreement 3 have not yielded expected results. The Calender of unpleasant events and half-hearted attempts from Tashkent to Lahoref demonstrate the lack ot political will to resolve the problem. It is high time to inspire confidence amongst the people of both the nations and the state authorities must create peaceful atmosphere and adopt amicable and more practical approach, avoiding medianon to resolve the dispute and there should be no hesitation In entering Into a dialogue with the Pakistan,Government. seconc wayout is sincere efforts on the part ot the Government to allay the tears ot the Kashmiris, by gaining their contidence and making them believe in the spirit of secularism as enshrined under the Indian Constitution. At present, we may say that the Indian leaders are not sure 2. See AppendiX III J. see AppendiX IV 4. Appendix V. • I 382 CENTFu\L INDIA LAW QUARTERLY [2000 whether the people of tno Valley will support the stand of India. This is an area which needs utmost attention, as the people of the Valley do not share the views of those of Jammu and Ladakh. The view of Shri P.N. Bazaz to form a federation of three units of Jammu, Kashmir' and Ladakh cannot be overlooked, However, the most controversial question which needs solution is that of the Pakistan occupied Kashmir, the portion though included as part of Jammu and Kashmir, by the Constitution of J & K, 1956 but not recognised by the Indian Constitution which includes only those territories which formed part of Kashmir before 1950. Now the question is whether Jammu & Kashmir, which surrendered its external sovereignty to India through the Instrument of Accession has any right to acquue or secede any territory and whether India can acquire or secede the territory which the Constitution does not recognise as Indian territory. The answer is that India being a Sovereign country can acquire any territory which may not be in its possession, whereas Jammu and kashmir cannot. However, any such move is bound to prove fatal. Hence, the solution lies only in gaining confidence of the Kashrruris and the political will of the States India and Pakistan. What is required, is sensible diplomacy. The countries must realise that their interest lies not in war but in peaceful coexistence, their progress depends on co operation and not in armsrace. Hence, it is the duty of the leaders to create an amicable atmosphere and to promote mutual co-operation. V'h' share a common history and are bound geographically and CUlturally. Efforts should be made by members of the SAARC countries to form a Confederation on the lines of the European Union so that they may together tread the path of progress, peace and prosperity, But before this could be done the countries must give up the path of terrorism and must adopt amicable means to resolve the dispute. There seems no justification in demanding greater antonomy for Jammu and Kashmir, as the State enjoys a special status in the Indian federation and much more autonomy as compared to other states of the Union. However their is no harm in entering into a dialogue with the government of Jammu and Kashmir with regard to greater autonomy. This will facilitate both the governments to come closer and discuss the ground realities which car; only be achieved by active participation of the affected interests. VoI.XIII] SPECIAL STATUS TO JAMMU AND KASHMIR 383 As regards Jammu and Kashmir, I must submit that a plan should be devised to bring about emotional integration of the people of Jammu and Kashmir with the rest of the Indians, apart from legal integration which is complete and irrevocable. Art. 370 is not an obstacle in integration but provides a means through which the Indian Constitution can be made applicable to the State of Jammu and kashmir. Fifty years, in the history of any nation is a small period and we must wait for the time when gradually the Indian Constitution shall apply in to the State. When this is achieved Art.l370'shall automatically cease to exist. For the time being it is not only d'esirable but essential, as it promotes and strengthens the Indian polity. • • APPENDIX (I) THE RESOLUTION OF THE UNITED NATIONS SECURITY COUNCIL OF AUGUST 13, 1948 Resolution of the Commission for India and Pakistan. The United Nations Commission for India and Pakistan. Having given careful consideration to the points of view expressed by the representatives of India and Pakistan regarding the situation in the State of jammu and kashmir, and Being of the opinion that the prompt cessation of hostilities and the correction of conditions the continuance of which is likely to endanger international peace and security are essential to implementation of its endeavours to assist the Governments of India and Pakistan in effecting a final settlement of the situation; . Resolves to submit simultaneously to the Governments of India and Pakistan the following proposal: Part I : Cease-fire Order A. The Governments of India and Pakistan agree that their respective High Commands will issue separately and simultaneously a cease-fire order to apply to all forces under their control in the State of Jammu and kashmir as of the earliest practicable date or dates to be mutually agreed upon earliest practicable date or dates to be mutually agreed upon within four days after these proposals have been accepted by both Governments. B. The High Commands of the Indian and Pakistani forces agree.to refrain from taking any measures that might augment the military potential of the forces under their control in the State of Jammu and Kashmir. (For the purpose of these proposals forces under their control shall be considered to include all forces, organized and unorganized, fighting or participating in hostilities on their respective sides.) C. The Commanders-in-Chief of the forces of India and Pakistan shall promptly confer regarding any necessary local changes in present Reproduced from "My Frozen Turbulence In Kashmir" by Jagmohan VoI.XIII] Appendices 385 dispositions which may facilitate the ceasefire. D. In its discretion and as the Commission may find practicable, the Commission will appoint military observers who, under the authority of the Commission and with the co-operation of both Commands, will supervise the observance of the cease-fire order. E. The Government of India and the Government of Pakistan agree to appeal to their respective peoples to assist in creating and maintaining an atmosphere favourable to the promotion of further negotiations. Part II: Truce Agreement Simultaneously with the acceptance of the proposal for the immediate cessation of hostilities as outlined in Part I, both Governments accept the following principles as a basis for the formulation of a truce agreement, the details of which shall be worked out in discussion between their representatives and the Commission. A. 1. As the presence of troops of Pakistan in the territory of the State of Jammu and kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council, the government of Pakistan agrees to withdraw its troops from that State. 2. The Government of Pakistan will use its best endeavour to secure the withdrawal from the State of Jammu and kashmir of tribesmen and Pakistani Nationals not normally resident therein who have entered tha State for the purpose of fighting. 3. Pending a final solution, the territory evacuated by the Pakistani troops will be administered by the local authorities under the surveillance of the Commission. B. 1. When the Commission shall have notified the Government of India that the tribesmen and Pakistani Nationals referred to in Part II, A, 2 hereof have withdrawn, thereby terminating the situation which was represented by the Government of India to the Security Council as having occasioned the presence of Indian forces in the State of Jammu and • • 386 CENTRAL INDIA LAW QUARTERLY [2000 Kashmir, and further, that the Pakistani forces are being withdrawn from the State of Jammu and Kashmir, the Government of India agre,es to begin to withdraw the bulk of its forces from that State in stages to be agreed upon with the Commission. 2. Pending the acceptance of the conditions for a final settlement of the situation in the State of Jammu and Kashmir, the Indian Government will maintain within the lines existing at the moment of the cease-fire the minimum strength of its forces which in agreement with the Commission are considered necessary to assist local authorities in the observance of law and order. The Commission will have observers stationed where it deems necessary. 3. The Government of India will undertake to ensure that the Government of the State of Jammu and Kashmir will take all measures within its power to make it publicly known that peace, law and order will be safeguarded and that all human and political rights will be guaranteed. c. 1. Upon signature, the full text of the truce agreement or a communique containing the principles thereof as agreed upon between the two Governments and the Commission, will be made public. Part III The Government of India and the Government of Pakistan reffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the truce agreement, both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured. APPENDIX (II) SUMMARY OF ASSURANCES GIVEN TO iJDIA BY UNITED NATIONS COMMISSION DURING THE COURSE OF DISCUSSIONS AND CORRESPO?'DENCE (i) Responsibility for the security of the State of Jammu and Kashmir rests with the Government of India. (Ii) The sovereignty of Jammu and Kashrrr Government over the entire territory of the State shall not be broucht into question. (iii) There shall be no recognition of the so-called Azad (Free) Kashmir Government. ' (iv) The territory occupied by Pakistan shall not be consolidated to the disadvantage of the State of Jammu and r<'Jshmir. (v) The administration of the evacuated areas In the north shall revert to the Government of Jammu and Kashmir and its defence to the Government of India who will, if necessary, maintain garrisons for preventing the incursion of tribesmen, and for guarding the main trade routes. • (vi) Pakistan shall be excluded from all affairs of Jammu and Kashmir in particular in the plebiscite, if one should he held. (vii) If a plebiscite is found to be impossible technical or practical reasons, the Commission will consider other methods of determining fair and equitable conditions for ensurinj a free expression of the people's will. (viii) Plebiscite proposals shall not be bindinu upon India if Pakistan does not implement Parts I and II and the resolution of 13th August, 1948. Reproduced from "My Frozen Turbulence In Kashmir' Jagmohan • • APPENDIX (III) TASHKENT DECLARATION Tashkent Declaration The Prime Minister of India and the President of Pakistan, having met at Tashkent and having discussed the existing relations between India and Pakistan hereby declare their firm resolve to restore normal and peaceful relations between their countries and to promote understanding and friendly relations between their peoples. They consider the attainment of these objectives of vital importance for the welfare of the 600 million people of India and Pakistan. (i) The Prime Minister of Indain and the president of Pakistan agree that both sides will exert all efforts to create good neighbourly relations between India and Pakistan in accordance with the United Nations Charter. They reaffirm their obligation under the Charter not to have recourse to force and to settle their disputes through peaceful means. They considered that the interests of peace in their region and particularly in the Indo-Pakistan subcontinent and indeed, the interests of the people of India. and Pakistan were not served by the continuance of tension between the two countries. It was against this background that Jammu & Kashmir was discussed, and each of the sides set forth its respective position. (ii) The Prime Minister of India and the President of Pakistan have agreed that all armed personnel of the two vountries shall be withdrawn not later than 25 February 1966 to the positions they held prior to 5 August 1965, and both sides shall observe the cease-fire terms on the cease-fire line. (iii) The Prime Minister of India and the President of Pakistan have agreed that relations between India and Pakistan shall be based on the principle of non-interference in the internal affairs of each other. (iv) The Prime Minister of India and the President of Pakistan have agreed that both sides will discourage any propaganda directed against the other country and will encourage propaganda which promotes the development of friendly relations between the two countries. Reproduced from "My Frozen Turbulence In Kashmir" by Jagmohan Vol.Xlllj Appendices 389 (v) The Prime Minister of India and the President of Pakistan have agreed that the High Commissioner of India to Pakistan and the High Commissioner of Pakistan and the High Commissioner of India will return to their posts and that the normal functioning of dipolomatic missions of both countries will be restored. Both Governments shall observe the Vienna Convention of 1861 on Diplomatic Intercourse. (vii) The Prime Minister of India and the President of Pakisan have agreed that they will give instructions to their respective authorities to carry out the repatriation of the prisoners of war. (viii) The Prime Minister of India and the President of Pakistan have agreed that both sides will continue the discussions of questions relating to the problems of refugees and evictions/illegal immigrations. They also agreed that both sides will create conditions which will prevent the exodus of people. They further agree to discuss the return of the property and assets taken over by either side in connection with the conflict. . (ix) The Prime Minister of India and the President of pakistan have agreed that the two sides will continue meetings both at highest and at other levels of matters of direct concern to both countries. Both sides have recognised the need to set up joint Indian-Pakistani bodies which will report to their Governments in order to decide what further steps should be taken. The Prime Minister of India and the Presicfent of Pakistan record their feelings, deep appreciation and gratitude to the leaders of the Soviet Union, The Soviet Government and personally to the Chairman of the Council of Minister~ of the USSR for their constructive, friendly and noble part in bringing about the present meeting which has resulted in mutually . satisfactory results. They also express to the Government and friendly people of Uzbekistan their sincere thankfulness for their overwhelming reception and generous hospitality. They invite the Chairman of theCouncil of Ministers of the USSR to witness this declaration. Prime Minister India President Of Pakistan Lal Bahadur Shastri Mohammed Ayub Khan Tashkent, 10 January 1966. • I APPENDIX (IV) SHIMlA AGREEMENT Shimla Agreement on Bilateral Relations between India and Pakistan signed by Prime Minister of India, Mrs. Indira. Gandhi, and President of Pakistan, Mr. Z.A. Bhutto, in Shimla on July 3, 1972. The Government of India and the Government of Pakistan are resolved that the two countries put an end to the conflict and confrontation that have hitherto marred their relations and work for the promotion of a friendly and harmonious relationship and the establishment of durable peace in the subcontinent, so that both" countries may henceforth devote their resources and energies to the pressing task of advancing the welfare of thier people. In order to achieve this objective, the Government of India and the Government of Pakistan have agreed as follows: (i) That the principles and purpose of the Charter of the United Nations shall govern the relations between the two countries. (ii) That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organisation, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations. (iii) That the prerequisite for reconciliation, good neighbourliness and durable peace between them is a commitment by both the countries to peaceful co-existence, respect for each other's teritorial integrity and sovereignty and non-interference in each other's internal affairs, on the basis of equality and mutual benefit. (iv) That the basic issuses and causes of conflict which have bedevilled the ralations between the two countries for the last 25 years shall be resolved by peaceful means; Reproduced from ·M'{ Frozen Turbulence In Kashmir" by Jaqrnohan Vol.XlIlj Appendices 391 (v) That they shall always respect each other's national unity, territorial integrity, political independence and sovereign equality; (vi) That in accordance with the Charter of the United Nations, they will refrain from the threat or use of force against the territorial- integrity or political independence of each other. Both Governments will take all steps within their power ro prevent hostile propaganda directed against each other. Both countries will encourage the dissemination of such informations as would promote the development of friendly relations between them. In order progressively to restore and normalise relations between the two countries step by step, it was agreed that: (i) Steps shall be taken to resume communications, postal, telegraphic, sea, land including border, posts and air links including over- flights. (ii) Appropriate steps shall be taken to promote travel facilities for the nationals of the other country. (iii) Trade and cooperation in economic and other agreed fietds will be resumed as far as possible. (iv) Exchange in the fields ofscience and culture will be promoted. In this connection delegations from the two countries will meet from time to time to work out the necessary details. . tn order to initiate the ,Process of the establishment of durable peace, both the Governments agree that: (i) Indian and Pakistani forces shall be withdrawn to their side of the international border. (ii) In Jammu and Kashmir, the line of .control* resulting from the cease-fire of December 17, 1971, shall be respected by both sides without prejudice to the recognised position of either side. Neither side shall seek to alter if unilaterally, irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the • I 392 CENTRAL INDIA LAW QUARTERLY [2000 threat or the use of force in violation of this line. (iii) The withdrawl shall commence upon entry into force of this agreement and shall be completed within a period of 30 days thereof. This agreement will be subject to ratification by both countries in accordance with their respective constitutional procedures, and will come into force with effect from the date on which the instruments of ratification are exchanged. Both Governments agree that their respective heads will meet again at a mutually convenient time in the future and that in the meanwhile the representatives of the two sides will meet to discuss further the modalities and arrangements for the establishment of durable peace and normalisation of relations, including the questions of repatriation of prisoners of war and civilian internees, a final settlement of Jammu and Kashmir and the resumption of diplomatic relations. Neither the Karachi Agreement of 1949 nor the Shimla Agreement of 1972 refers to the Siachen Glacier. 74 km long, believed to be the world's largest in the non-polar regions, now turned into a battleground at altitudes from 15,000 and 20,000 feet since June 1984. It remained undemarcated as no troops had even been deployed there. Later Indian troops moved in when Pakistan was discovered encouraging foreign expeditions to go there. Pakistani contention is that the line of control resulting from the cease-fire of December 17,1971 should go eastwards to meet the Karakoram Pass. India, QI1 the other hand, maintains that Pakistan cannot have any right over undemarcated uninhabited area belonging to J&K State which is an Indian State. A succession of meetings at different levels during the past over three years to solve the dispute have proved futile with the result that confronation for control of 4,00 sq km of the inhospitable Siachen continues. APPENDIX (V) LAHORE SUMMIT DOCUMENTS The following is the text of the Lahore Declaration signed by Prime Minister A.B. Vajpayee and Pakistan Prime Minister Nawaz Sharif in Lahore on February 21: The Prime Ministers of the Republic of India and the Islamic Republic of Pakistan: Sharing a vision of peace and stability between their countries, and of progress and prosperity for their peoples; Convinced that a durable peace and development of harmonious relations and friendly cooperation will serve the vital interests of the peoples of the two countries, enabling them to devote their energies for a better future; Recognising that the nuclear dimension of the security, environment of the two countries adds to their responsibility for avoidance of conflict betwElen the two countries; Committed to the principles and purposes of the Charter of the United Nations, and the universally accepted principles of peaceful co- existence; Reiterating the determination of both countries to implementing the Simla agreement in letter and spirit; Committed to the objective of universal nuclear disarmament and non-proliferation; Convinced of the importance of mutually agreed confidence building measures for improving the security environment; . Recalling their agreement of September 23, 1998 that an environment of peace and security is in the supreme national interest of both sides and that the resolution of all outstanding issues, including Jammu and Kashmir is essential for this purpose; Maintstrearn, F: ebruary, 7, 1999, • • 394 CENTRAL INDIA LAW QUARTERLY [2000 Have agreed that their respective Governments: Shallintensi'fy their efforts to resolve all issues, including the issue of Jammu and Kashmir. Shall refrain from intervention and interference in each other's internal affairs. Shall intensify their, composite and integrated dialogue process for an early and positive outcome of the agreed bilateral agenda. Shall intensify their composite and integrated dialogue process for an early and positive outcome of the agreed bilateral agenda. Shall take immediate steps for reducing the risk of accidental or unauthorised use of nuclear weapons and discuss concepts and doctrines with a view to elaborating measures for confidence building in the nuclear and conventional fields, aimed at prevention of conflict. Reaffirm their commitment to the goals and objectives of SAARC and to concert their efforts towards the realisation of the SAARC vision for the year 2000 and beyond with a view to promoting the welfare of the peoples of South Asia and to improve their quality of life through accelerated economic growth, social progress and cultural development. Reaffirm their condemnation of terrorism in all its forms and manifestations and their determination to combat this menace. Shall promote and protect all human rights and fundamental freedoms. Signed at Lahore on the 21st day of February, 1999 Atal Behari Vajpayee Muhammad Nawaz Sharif Prime Ministerofthe Prime Minister of the Islamic Republic of India Republic of Pakistan Joint Statement The following is the text of the joint Statement issued at the end of Prime Minister A.B. Vajpayees Visit to Lahore: In response to an invitation by Prime Minister of Pakistan Mul"'smmad Nawaz Sharif, Prime Minister of India Atal Behari Vajpayee Vol.Xlllj Appendices' -395 Visited Pakistan from February 20-21, 1999 on the inaugural run of the Delhi-Lahore bus service. 2. The Pnrne Minister of Pakistan received the Indian Prime Minister at the Wagah border on February 20, 1999. A banquet in honour of the Indian Prime Minister and. his delegation was hosted by the Prime Minister of Pakistan at Lahore Fort, on the same evening. Prime Minister' Atal Behari Vajpayee visited Minar-e-Pakistan, Mausoleum of Allam Ibal, Gurudwara Dera Sahib and Samadhi of Maharaja Hanjeet Singh. On February 21, a civic reception was held in honour of the visiting Prime Minister at the Gm'ernment's House. 3. The two leaders held discussions on the entire range of bilateral relations, regional cooperation within SAARC, and issues of international concern. They decided that: (a) The two foreign Ministers will meet periodically to discuss all issues of mutual concern. They decided that: (b) The two sides shall undertake consultations on WTO related issues with a view to coordinating their respective positions. (c) The two sides shall determine areas of cooperation' in Information Technology, in particular for tackling the problems of Y2K. (d) The two sides will hold consultations with a view to further liberalising the visa and travel regime (e) The two sides shall appoint a two-member committee at ministerial level to examine humanitarian issues relating to Civilian detainees and missing POWs. 4. They expressed satisfaction on the commencement of a Bus Service between Lahore and New Delhi, the release of fishermen and civillian detainees and the renewal of contacts in the field of sports. 5. Pursuant to the directive given by the two Prime Ministers, the Foreign Secretaries of Pakistan and India signed a MemorancfOfu of Understanding on February 21, 1999, identifying measures aimed at promqting an environment of peace and security between the two countries. • I 396 CENTRAL INDIA LAW QUARTERLY [2000 6. The two Prime Ministers signed the Lahore Declaration embodying their shared vision of peace and stability between their countries and of progress and prosperity for their peoples. 7. Prime Minister Atal Behari Vajpayee extended an invitation to Prime Minister Muhammad Nawaz Sharif to visit India on mutually convenient dates. 8. Prime Minister Atal Behari Vajpayee thanked Prime Minister Muhammad Nawaz Sharif for the warm welcome and gracious hospitality extended to him and members of his delegation and for the excellent arrangements made for his visit. Lahore February 21, 1999 Memorandum of Understcmding The following is the text of the Memorandum of Understanding signed by Foreign Secretary K. Raghunath and Pakistan Foreign Secretary Shamshad Ahmad in Lahore on February 21: The Foreign Secretaries of India and Pakistan: Reaffirming the continued commitment of their respective governments to the principles and purposes of the UN Charter; Reiterating the determination of both countries to implementing the Simla Agreement in letter and spirit; Guided by the agreement between their Prime Minister of September 23, 1998 that an environment of peace and security is in the supreme national interest of both sides and that resolution of outstanding issues, including Jammu and Kashmir, is essential for this purpose; Pursuant to the directive given by their respective Prime Ministers in Lahore, to adopt measures for promoting a stable environment of peace, and security between the two countries; Have on this day, agreed to the following: 1. The two sides shall engage in bilateral consultations on security VoI.XIII] Appendices 397 concepts, and nuclear doctrines, with a view to developing measures for confidence building in the nuclear and conventional fields, aimed at avoidance of conflict. 2. The two sides undertake to provide each other with advance notification in respect of ballistic missile flight tests, and shall conclude a bilateral agreement in this regard. 3. The two sides are fully committed to undertaking national measures to reducing the risks of accidental or unauthorised use of nuclear weapons under their respective control. The two sides further undertake to notify each other immediately in the event of any accidental, unauthorised or unexplained incident that could create the risk of a fallout with adverse consequences for both sides, or an outbreak of a nuclear war between the two countries, as well as to adopt measures aimed at diminishing the possiblity of such actions, or such incidents being misinterpreted by the other. The two sides shall identify/establish the appropriate communication mechanism for this purpose. 4. The two sides shall continue to abide by their respective unilateral moratorium on conducting further nuclear test explosions unless either side, in exercise of its national sovereignty decides that extraordinary events have jeopardised its supreme interests. 5. The two sides shall conclude an agreement on 'prevention of incidents at sea in order to ensure safetyof navigation by naval vessels, and aircraft belonging to the two sides. 6. The two sides shall periodically review the implementation of existing Confidence Building Measures (CBMs) and where necessary, set up appropriate consultative mechanism to monitor and ensure effective implementation of these CBMs. 7. The two sides shall undertake a review of the existing communication iinks (e.g. between the respective Directors-General, Military Operations) with a view to upgrading and improving these links, and to provide for fail-safe and secure communications. 8. The two sides shall engage in bilateral consultations on security, disarmament and non-proliferation issues within the context of negotiations on these issues in multilateral fora. Where required, the technical details of the above measures will be • • 398 CENTRAL INDIA LAW QUARTERLY worked out by experts of the two sides in meetings to be held on mutually agreed dates, before mid 1999, with a view to reaching bilateral ~~~~. . Done at Lahore on February 21, 1999 in the presence of Prime Minister of India Atal Behari Vajpayee and Prime Minister of Pakistan Muthammad Nawaz Sharif. K. Raghunath Shamshad Ahmad • Foreign Secretary of the Foreign Secretary ofthe Republic of India Islamic Republic of Pakistan APPENDIX (VI) KASHMIR ACCORD (FEBRUARY 1975)· Agreed conclusion wihch led to Sheikh Mohammad Abdullah's accord with Mrs. Indira Gandhi, Prime Minister, and his subsequent assumption of office as Chief Minister in February 1975. 1. The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India. 2. The residuary powers of legislation shall remain with the State; however, Parliament will continue to have power to make laws relating to the prevention of activities directed towards disclaiming, questioning or disrupting the soverignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution. 3. Where any provision of the Constitution of India had been applied to the State of Jammu and Kashmir with adaptations and modifications, such adaptations and modifications can be altered or repealed by an order of the President under Article 370, each individual proposal in this behalf being considered on its merits; but provisions of the Constitution of India already applied to the State of Jammu and Kashmir without adaptation or modification are unalterable. 4. With a view to assuring freedom to the State of Jammu and Kashmir to have its own legislation on matters like welfare measures, cultural matters, social security, personal law and procedural laws, in a manner suited to the special conditions in the State, it is agreed that the State Government can review the laws made by Parliament or extended to the State after 1953 on any matter relatable to the Concurrent List and may decide which of them, in its opinion, needs amendment or repeal. Thereafter, appropriate steps may be taken under Article 254 of the Constitution of India. The grant of President's assent to such legislation would be sympathetically considered. The same approach would be adopted in regard to laws to be made by Parliament in future under the Reproduced from "My Frozen Turbulence In Kashmir" by Jagmohan • • 400 CENTRAL INDIA LAW QUARTERLY [2000 Proviso to clause 2 of the Article. The State Government shall be consulted regarding the application of any such law to the State and the views of the State Government shall receive the fullest consideration. 5. As an arrangement reciprocal to what has been provided under Article 368, a suitable modification of that Article as applied to the State should be made by Presidential order to the effect that no law made by the Legislature of the State of Jammu and Kashmir, seeking to make any change in or in the effect of any provision of Constitution of the State of Jammu and Kashmir relating to any of the undermentioned matters, shall take effect unless the Bill, having been reserved for the consideration. of the President, receives his assent; the matters are- (a) the appointment, powers; functions, duties, privileges and immunities of the Governor, and (b) the following matters relating to Elections namely, the superintendence, direction and control of Elections by the Election Commission of India, eligibility for inclusion in the electoral rolls without discrimination, adult suffrage and composition of the Legislative Council, being matters specified insections 138, 139, 140 and 50 of the Constitution of the State of Jammu and kashmir. 6. No agreement was possible on the question of nomenclature of the Governor and the Chief Minister and the matter is therefore remitted. to the Principles. Mirza Mohammad Afzal Beg G. Parthasarathi New Delhi, November 13,1974 Vol.XIII] 401 BIBLIOGRAPHY Austin, Granville The Indian Constitution: Cornerstone of a nation Basu.D.D. Commentary on the Constitution of India vol 5,5 th Edn. Commentary on the Constitution of India, 7th Edn, Vol. P, 1996. Bajaj P.N. History of struggle for freedom in Kashmir(1954) Kashmir in Crucible (1967) Bombwall. K. R. The foundations of Indian federalism, 1967. BurKe. S.M. Mainsprings of the Indian and Pakistani foreign policies 1974. CarneIlF.G. Political Implications of federalism. Dawson The Government of Canada. Dicey.A.V Introduction to the study of the Law of the Constitution. Dixit. RO. The Political Geography of India. 1970 Fox, Paul Candas culture and process, 1970 Frederich & Bowie Studies in Federalism Gervis, Pearce This is Federalism Hamilton, A.Madison The Federalist paper. HariRam Special Status in Indian Federalism Jammu and Kashmir. Hayes, Louis. D. Impact of U.S. policy on the Kashmir conflict, Tucson, University of Arizona press, 1971 Jain. M.P. Indian Constitutional Law (1987) Kaul,G.L. Kashmir: Then and Now SrinagarChronical Publishing House. 1972 Lamb, Alastair Crisis in Kashmir, 1946-66 Laqueur, Walter A Dictionary of Politics Lawrence, SirWalter The Valley of Indian States. 1972 McWhinney Comparitive Federalism, (1962) Mahajan, M.C. Looking Back (1962) Menon, V.P. Integration of Indian States. 1972 Mullick,BN Kashmir: My years with Nehru, New Delhi Allied Publishers Noorani, A.G, The Kashmir Question, 1964 Phadnis, Urmila Towards the Integ ration of India States 1919-1947 • • 402 CENTRAL INDIA LAW QUARTERLY [2000 Rahamatullah Khan The U.N. Handling. ofthe kashmir problem In Asian States and the Development of Universal International Law. Rao,Shiva Framing of India' Constitution Select Documents. Saharay, H.K. Constitution of India, Analytical Apparoach Schwartz, Bernard Constitutional law: aText Book Seervai, H. M Constitutional Lawof India, Third Edn. Singh, Khushwant Flames of the Chinar. Sharma, B.L. Kashmir Awakes. Sharma, Prof. Pyarelal India Betrayed. II Shellgrore, David, L The Cultural Heritage of Ladakh Vol. I and Skorupki Tadeusz Shukla, V.N. Contitution of India. (1988) Teng,M.K. "Kashmir Constiutional History and Documents" First Edn. 1971. Teng, M.K. and Kashmir's Special Status Kaul, Santosh Tope,M.K. Constitutional Law of India, Second Edn.1992. Vigne, G.T. Travels in Kashmir, Ladakh, Wheare, K.C. Federal Goverment, Second Edn. ACTS AND DOCUMENTS Government of India Act, 1935. Indian Independence Act, 1947. White Paper on Jammu and Kashmir, New Delhi,1948. C.O. 10 d:- 26-10-1950, gaz of India, Extraordinary. C.O. 44- S.R.O. Gaz. of India, Extraordinary pt. Ii Sec ..3. d/- 15-11-1952 Constituent Assembly Debates, Vol, 1. Vol. 18, Vol. 12. ARTICLES & JOURNALS Dr. Anand, A.S. Accession of Kashmir- Historical & Legal Perspective (1996) 4 SCC, Journal Sec Jain,M.P. A background paper in Ill, Constitutional Development Since Independence. pp 254-255 (1974) VoI.XIII] ·403 Livingstone, S.W. A note on the Nature of Federalism in Wildaskt, Aron Ed. American Federalism in perspective, Boston, 1967 Macdonald. D. "Canada:Tobeor Nottobe" in Reader's Digest, VoI.IIINov.1977,p.146 Parasuram T.V. "When U.S. Held Secrets talks with Abdullah" In India Express. 13th, July 1978. Encyclopaedia Britannica, Vo1.15, Chicago William Benton, Publishers, 1969, p. 542. NEWS PAPERS AND MAGAZINES The Times of India The Statesman The Hindutan Times Frontline. OFFICIAL WEBSITE OF JAMMU AND KASHMIR GOVERNMENT, INDIA www.JAMMUKASHMIR.nic.in/view/july8.htm-42k www.JAMMUKASHMIR.nic.in/view/july9.htm-42k • 404 CENTRAL INDIA LAW QUARTERLY [2000 TABLE OF CASES 1. Bommai V. Union of India (1994), 3 SCC 1 379 2. Dhar V. J&K State (1987) J.K.L.R, 109 359 3. East Lake v. Forest City Enterprises, 426 US 668 357 4. Hindustan Construction Co. V Accession Authority, AIR 1070 J&K 5. Indira v. Rajnarayan, AIR, 1975 SC, 2299 377 6. Kesavanand Bharti State of Kerala, 377,379 AIR, 1953, SC, 1461 7. Mehar Singh v Principal Secy J& K government 338 8. Minerva Mills V Union of India AIR, 1980, SC, 1789. 377 9. Mohd. Maqbool V State of J 7 K AIR 1972 SC, 963 360 10. Naquishbandi v ITO, A 1971 J&K, 120 358 11. Premnath v State of J&k, AIR 1959, SC, 749 357 12. Puranlal v President of India, AIR 1961 SC, 1579. 13. Sambha Murthy vState of A.P. AIR 1987 SC, 663 377 14. Sampat v State of J&K, AIR 1987 SC, 1118 358,378 15. Sant Singh v State of J&K, AIR 1959 J&K, 35 378 16. Shankari Prasad v Union of India, AIR 1957 Sc, 458 377 Justice S.M.N. Raina Former Judge of M.P. High Court On JUSTICE, SOCIAL, POLITICAL NATIONAL AND INTERNATIONAL With a foreword by Justice, G.P. Singh Former Chief Justice of M.P. High Court The book is dedicated to Boys and Girls of merit who resorted to self immolation when Central Government announced its decision to implement the recommendations of the Mandai Commission regarding reservation of seats and posts under the Constitution The book deals with reservation from various angles in different Chapters and certain' other subjects such as: International Law and Justice,Art 21 of the Constitution a bulwark of democracy, whether right to work should be made a fundamental right, what social justice means and implies, Importance of Emergency provisions in the Constitution with particular reference to Art 356, Measures to avoid mid-term Poll, Steps for speedy Justice, Independence of the Judiciary vis-a-vis the Constitution, propriety of death penalty in Rape cases, Constitutionality and Properiety of Death penalty, Democratic process in India, Reservation for women in State Legislative Assemblies and Lok Sabha etc. Pages 320 Price Rs. 250/- Can be had from Published by THE CENTRAL INDIA LAW INSTITUTE The Central India Law Institute 1601, Wright Town, Jabalpur-482002 (M.P.)