Table of Contents
   Index
   About the Author
   Introduction
   Preface 
   Indian Federalism
   Integration of States
   Article 370
   The Constituent Assembly
   Federal Jurisdiction
   Division of Powers
   State Apart
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Chapter 3: Article 370

When Maharaja Hari Singh acceded to India on 26 October 1947, he ceded Maharaja Hari Singh to the Dominion Government, powers with regard to the subjects the other Indian States had also delegated to the Dominion. The subjects were listed in the Schedule attached to the Instrument of Accession and included:
  • Military, air and naval forces of the Dominion, armed forces raised or maintained by the Dominion or maintained by the State operating with any of the armed forces of the Dominion, naval, military and air force works and the administration of the Cantonments arms, ammunition and explosives;
  • External affairs, treaties, and agreements with other countries, extradition, admission, emigration, expulsion of nationals, regulation of movement of the foreign nationals, pilgrimages to places outside India and nationalization;
  • Communications, posts and telegraphs, telephones, wireless, broadcasting and other communications, railways, shipping and navigation, admiralty jurisdiction, ports and port authorities of delimitation-ports, port quarantine, air craft and air navigation; aerodromes, air traffic, light houses, beacons, safety for shipping and air craft, carriage of passengers and goods by sea and air and police force of the railways;
  • Election to the Dominion Legislature, offences against laws with respect to any of the matters transferred to the Dominion of India, inquiries and statistics with regard to these matters and the jurisdiction of all courts with regard to these matters.
The Dominion Legislature was empowered to legislate in regard to the subjects, which were listed in the Schedule. Maharaja Hari Singh assumed the obligation to ensure that due effect was given to the instruments of the Dominion Government applicable in the State by virtue of the Instrument of Accession. The State was reserved powers in regard to all the residuary subjects and the terms of the Instrument of Accession were not to be altered by any subsequent amendment of the Indian Independence Act, unless such an amendment was accepted by the Ruler of the State by a supplementary instrument. If an agreement was made between the Governor General and the Ruler, whereby any function in relation to the Dominion laws in the State was vested with the Ruler, such an agreement was to be deemed to form a part of the Instrument of Accession.

Hari Singh did not commit himself to accept any future Constitution of India. However, he reserved the right to enter into agreements with the Government of India under any future Constitution of India. The Instrument of Accession did not effect the continuance of the sovereignty of the Ruler in and over the State or the validity of any law in force in the State, save as provided by or under the Instrument of Accession.

Express stipulations were incorporated in the Instrument of Accession, whereby the Dominion Legislature was precluded to make laws authorizing compulsory acquisition of land in the State. Hart Singh undertook to acquire land at the request of the Dominion Government or at their expense or if it belonged to him, transfer it to them, on terms as were agreed between him and the Government of India or in default of an agreement, determined by an arbitrator to be appointed by the Chief Justice of India.

The delegation of powers, envisaged by the Instrument of Accession, was not an exception, specially admitted in favor of the Jammu and Kashmir State. It was a part of the broad framework of constitutional arrangements which the State's Ministry of the Government of India had evolved and within which the Indian States were invited to join the Indian Dominion The accession stipulated a minimal transfer of power to the Dominion Government and the State's Ministry offered to the Rulers of the States to accept the accession on a basis whereby they would be permitted to retain most of the prerogatives they exercised under the British Paramountcy. The major States and the Unions of the States were reserved the right to convene separate Constituent Assemblies to frame their own constitutions. The Mysore scheme, which formed the basis of the Interim Government in the Jammu and Kashmir State, stipulated t convocation of a Constituent Assembly in the State "to draft an Act for the government in the State". It was agreed upon by the Maharaja as well as the Government of India that the Interim Government would put up proposals for the election of a Constituent assembly to draft a Constitution for the government of the State. "I am agreeable to your suggestion" Hari Singh wrote to Gopalaswami Ayangar, "that the Interim Ministry should put up proposals for the election of the Constituent Assembly and its composition, but I would like to add that besides the elected elements, I must have the right to nominate a few persons to the Constituent Assembly out of the minority communities and other persons having substantial interest in the State if the result of election does not show their adequate representation." However, in most of the States and the Unions of the States, the institution of constituent assemblies did not make much progress, mainly due to the difficult problems of federal integration, the States presented. A standard pattern of federal relations and the division of powers between the States and the proposed Union of India was still to tee evolved and in the absence of a uniform pattern of federal relations, the process of constitution making in the States was difficult. Constituent Assemblies were instituted only in the Mysore State and two States-Unions: the States Union of Travancore-Cochin and the States-Union of Saurashtra.

In the Jammu and Kashmir State the process of Constitution-making was beset with many more difficulties. The unsettled political conditions in the State, protracted conflict with Pakistan and the occupation of a large part of the territory of the State by the invading armies of that country and the disputations about the State in the United Nations relegated the convocation of the Constituent Assembly into background. Besides, there was deep divergence of opinion between the Maharaja and the Interim Government in regard to the constitutional organization of the State as well as the proposed federal relation with India. Hari Sing favored the implementation of the Mysore scheme and the inclusion o the State in federal organization of India in accordance with the stipulation of the Instrument of Accession. The outlook of the Conference leadership was characterized by ambivalence and the Conference leaders made conflicting statements, which varied in their content and emphasis from time to time and place to place. In effect they refused to reorganize the validity of the political arrangements, the Instrument of Accession envisaged. They considered the Instrument of Accession, signed by Maharaja Hari Singh as a "formal act" which they called "Paper Accession" and claimed that the actual accession of the State of India had been accomplished by the National Conference, which they claimed, represented the people of the State. The Conference leaders did not accept that the Instrument of Accession had integrated the State into the political jurisdiction, the Indian Dominion described, and did not recognize any obligations which emanated from the accession of the State to India, including the obligations which were involved in the delegation of powers to the Dominion Government. The Conference leaders presumed that with the lapse of the British Paramountcy the prescriptions, which had been imposed by the British Crown on the sovereignty of the State, had terminated. To that extent, the Conference leaders reiterated the stipulations of the Cabinet Mission plan, which underlined restoration of sovereignty to the States after the Paramountcy was withdrawn. The Conference leaders went a step further end claimed that since the treaties and engagements with the Rulers of the Indian States were subsidiary to the Paramountcy, the lapse of Paramountcy had dissolved the basis of the Dogra rule. Consequently they demanded the transfer of the authority of the State to the Interim Government.

The Conference leaders insisted that the obligations undertaken by the Maharaja by virtue of the Instrument of Accession were subject to their approval. Therefore, they did not accept the accession of the State, as it was envisaged by the State Department or the Maharaja. In fact, they visualized the accession of the State as an administrative arrangement, which was arrived at between them and the Government of India, not between the Maharaja and the Government of India.

The Conference leaders, had before the partition of India, committed themselves to a united India, which they had presumed would be based upon reorganization of the British India and the Indian States into autonomous political identities, mainly based upon the reconciliation of communal balances. The partition, had, however, destroyed the basis of Indian unity the Conference leaders had visualized and liberated the two Dominions from the constraints any communal balances imposed upon them. The Constituent Assembly of India had opted for a Union of India based on the secular integration of the people of India rather than the recognition of communal balances and federal autonomy. In broad terms, the Conference leaders took the position, which underlined:

  • The Jammu and Kashmir State was a Muslim majority State and in order to protect its Muslim identity, it could not be brought within the political organization of India, which was dominantly Hindu;
  • The existing arrangements between the Maharaja and the Government of India could not form the basis of the constitutional organization of the State or determine the future of the State's constitutional relations with the Dominion of India;
  • The future Constitution of the State and the constitutional relations between the State and the future federal organization of India would be determined by fresh agreements between the Interim Government and the Government of India;
  • The stipulation of the Instrument of Accession would be treated as redundant to the extent such stipulations brought the State within the jurisdiction of the Dominion of India.
The National Conference leaders pledged their support to the accession of the State, but they refused to accept the secular integration of the State in the federal organization of India. They claimed that the Jammu and Kashmir State was a Muslim majority State and as such it could be placed in the Indian political organization only on the basis of communal balances, as a separate and autonomous political entity, which did not form a part of the constitutional organization of India.

Third Alternative

The Conference leaders gave first formal expression to their outlook immediately after the cease-fire was accepted by India and Pakistan; and the fighting was suspended in the State. On 3 January 1949, two days after the cease-fire came into force, the Interim Government sent a long memorandum to the States Minister of the Government of India, Sardar Patel. The memorandum was signed by all the members of the Interim Government, including Girdhari Lal Dogra and Sham Lal Saraf. The Interim Government informed Patel that since the National Conference would be required to approach the people of the State to seek their support for India in the impending plebiscite, it would be necessary for the Conference to explain its stand to the people in regard to the future constitutional organization of the State and its position in the proposed federal structure of India. The Conference leaders pointed out to the States Minister that Pakistan had launched a severe campaign against Maharaja Hari Singh on the ground that the Maharaja represented the autocratic Hindu rule. They affirmed that the Muslims in the State distrusted the Maharaja and considered the Dogra rule as the symbol of their subjection. They proposed that in order to counteract the propaganda unleashed by Pakistan, it would be proper to remove Maharaja Hari Singh, banish him as well as the Maharani of the State from India and assure the Muslims in the State that the future of the Dogra rule would be determined by the Constituent Assembly of the State when it was convened.

The Conference leaders further wrote to Patel, that Pakistan had offered the Muslims of the State complete independence in their internal affairs and freedom to frame a Constitution for the government of the State without any interference from the State of Pakistan. Pakistan, the memorandum pointed out, had gone so far as to offer to vest in the State Government, powers with regard to the State army and communications, and assume only such powers as were transferred to it in regard to defense and foreign affairs. In order to neutralize the effect of the offer Pakistan had made, the Conference leaders suggested that Government of India should also issue a declaration, which assured the Muslims in the State that they would be ensured internal independence, the future constitutional organization of the State would be framed by the Constituent Assembly of the State, the accession of the State would be limited to three central subjects foreign affairs, defense and communications and the future of the State army would be determined by agreement between the Interim Government and the Government of India and till the agreement was reached the control of the Spate army would be vested with the Indian army.

The proposals made by the Interim Government were received by the Indian leaders with considerable consternation. Patel rejected the Proposals outright and informed the Interim Government that the proposals involved issues, which were beyond the competence of the States Ministry and therefore, could not be considered by him.

The Conference leaders were flustered by the refusal of the States Ministry to countenance the proposals they had made. Widespread rumors were set afloat by the Conference cadres that Sardar Patel supported the perpetuation of the Dogra rule in the State alienate the Muslims of Kashmir and pave the way for eventual cessation of the Kashmir valley to Pakistan. Sheikh Mohammad Abdullah promptly wrote to Nehru that in case the proposals made by the Interim Government were not accepted, the National Conference would not be able to secure the support of Muslims for the accession of the State to India. Inside the State, the Conference leaders launched a frontal attack on the Maharaja. Among the many other allegations they brought against him, they accused him of interfering with the function of the Interim Government and obstructing the political and economic reforms, which the Conference leaders proposed to introduce in the State.

The tirade unleashed by the Conference leaders against the Maharaja disparaged the Government of India. A meeting of the Indian leaders in which Nehru, Sardar Patel, Maulana Azad and Gopalaswamy Ayangar participated was convened in Delhi to examine the issues the Conference leaders had raised. A decision was reached to advise the Maharaja to leave the State temporarily for some time and entrust his powers to his son Yuvraj Karan Singh. It was also decided that the future of the Dogra rule would be determined by the Constituent Assembly of the State after it was convened.

On 16 April 1949, Nehru had a long meeting with Sheikh Mohammad Abdullah in which many of the issues raised by the Conference leaders were brought under discussion. Nehru apprised Sheikh Mohammad Abdullah of the decisions he and his colleagues had arrived at, with regard to the temporary removal of the Maharaja, the Constitution of the State and future relations between the State and India. He also expressed his disapproval of the wild accusations, the Conference leaders had made, against the Maharaja.

Nehru wrote to Patel on 17th April, and gave the States Minister a resume of his discussions with Sheikh Mohammad Abdullah. He wrote to Patel:

We know that Sheikh Abdullah and some of his colleagues have been very unwise in their public remarks and they have properly criticized the Maharaja and asked for his removal. I had a long talk with Abdullah last night and again pointed out to him very forcefully how unfortunate and wrong his attitude was in this particular matter and how it was creating difficulties not only for us but for himself. He repeated his old complaints, which included the very faces that our intelligence of ricer has stated. He promised that he would say nothing about the Maharaja in future, but he was very unhappy about it.

Nehru wrote to Patel that it would not be safe any further to allow the drift to continue and proposed the removal of the Maharaja from the State. He suggested to Patel to ask Maharaja Hari Singh to come to Delhi and advise him to leave the State for sometime. Nehru wrote:

The consequences are undoubtedly bad and I feel that it is no longer safe for us to allow matters to drift. You will remember that we discussed this matter fully sometime ago in your house. Gopalaswami Ayangar and others were present. Ultimately we came to the conclusion that the proper course to adopt was for us to take the attitude that it was for the people of Kashmir in the Constituent Assembly to decide about the future of the Maharaja. But even now it was highly desirable that the Maharaja should take some time of leave and not remain in Kashmir. It was proposed to put this matter to the Maharaja and to ask him to come to Delhi for the purpose. As he has not been here since then, I suppose nothing has been done. Meanwhile, the situation deteriorates and an open conflict is going on in the State between the adherents of the Maharaja and the adherents of Sheikh Abdullah.

While the Indian leaders were trying frantically to find a solution of the problems in the State, and remove the Maharaja, Sheikh Mohammad Abdullah threw a bombshell in their midst. In a press statement, he gave to an influential English newspaper "Scotsman" he pleaded for the independence of the State. "Accession on either side cannot bring peace." Abdullah stated. "We want to live in friendship with both Dominions. Perhaps a middle path between them, with economic cooperation with each, will be only way of doing it. But an independent Kashmir must be guaranteed not only by India and Pakistan, but also by Britain, the United States and other members of the United Nations. Sheikh Mohammad Abdullah added further, "During the communal riots in the Punjab after partition, we tried in our humble way to stem the wave of fanaticism. That is why I urged we should wait before deciding our affiliation. I pleaded with both Dominions to help us first to win internal emancipation before asking us to choose! India replied by refusing to make a standstill agreement with the Maharaja; Pakistan did so. When during the crisis India accepted the Maharaja's accession Pandit Nehru insisted that it was only provisional and that people must decide later."

The Indian leaders received a rude jolt by the statements Sheikh Mohammad Abdullah made. Patel wrote to Gopalaswami Ayangar:

You have probably seen the interview by Sheikh Sahib to Michael Davidson, which was published in the Scotsman of 14 April 1949. A vehement exponent of accession to India seems to have been converted to an "independent Kashmir". He wants absentee landlords, most of whom have gone to Pakistan, to be expropriated. At the same time he has got, according to the information brought here by Sethi of the Agricultural Ministry, large tracts of valuable irrigated lands vacant lest non-Muslims should settle down on them, and this is at a time when elsewhere we are asking for every inch of land to be cultivated.

Ayangar asked Dwarka Nath Kachru, personal secretary to Nehru, to visit Srinagar and instructed him to convey to Sheikh Mohammad Abdullah, his disapproval of the statement he had made. Ayangar instructed Kachru to inform Abdullah that he condemned his statesman and considered it to be the first step in the plan to set up an independent State of Jammu and Kashmir. Ayangar wrote to Sardar Patel:

My attention was drawn to the contents of this interview earlier in the day. It is a more astonishing performance. Kachru, who is going to Kashmir tomorrow, has just been to see me, and I am sending a message through him to Sheikh Abdullah. I have asked him to tell the latter that I condemn the Sheikh's action and that I feel that what he has told Micheal Davidson and what the latter has published will have the most serious and mischievous consequences both in India and abroad. I have asked him to inform the Sheikh that, reading between the lines, I suspect a plan, the first step of which is this blessing by the Premier of Kashmir of the idea of an independent Kashmir and this public expression of his conviction that accession to India will not bring peace, and the first step of which may well be perhaps one of the greatest betrayals in history.

It was, indeed, the greatest betrayal in history and later events proved that. As the scope of the Security Council intervention in the dispute widened, the National Conference rapidly draw closer to the idea of independence.

Sheikh Mohammad Abdullah treated Kachru with scant respect and told him that he had never meant all that he had said in his press statement and that he had done some "loud thinking". Ayangar had instructed Kachru to advise Sheikh Mohammad Abdullah to contradict the press statement he had given. When Kachru asked Sheikh Mohammad Abdullah to recant his statement, the latter refused to do so.

Maharaja's Removal

Patel, who had already invited Maharaja Hari Singh to come to Delhi, sent a fresh communication to him, advising him to come to Delhi without any delay. "I hope" Patel cabled to the Maharaja, "Your Highness received message sent by Shanker on my behalf by telegram and through your assistant private secretary about necessity of coming as early as possible. I am sorry to note that there had been no response from Your Highness so far. Matters which I propose to discuss with you admit of no delay and I should therefore be grateful if you come here as soon as possible."

Hari Singh hurried down to Delhi and met Patel on 29 April 1949. Maharani Tara Devi was also present. Patel disclosed to the Maharaja that Sheikh Mohammad Abdullah was insisting upon his addiction. He told the Maharaja that though the Government of India was not prepared to accept his addiction, they would still like him to leave the State for some time temporarily and appoint the Yuvraj, the Regent of the State in his absence Patel told Hari Singh that his absence from the State would be in the interests of the State as well as India, particularly in view of the complications which had arisen from the plebiscite proposals then being actively pursued in the United Nations. Hari Singh was stunned.

Posterity alone will judge the Indian leaders for their decision to remove Maharaja Hari Singh to keep the Conference leaders on their side. Hari Singh never asked Patel whether India would win the plebiscite after he had left. If he had asked, the bluff would have been called off. Patel assured the Maharaja that his stay outside the State would be "a temporary phase" and he would return to the State after a settlement with regard to the plebiscite in the State had been finalized. Of the Congress leaders, Hari Singh trusted Patel alone, and he put his ship in Patel's hands. Patel drove him straight to the reefs. In utter distress Hari Singh wrote to Patel:

I should like to say at the outset that I was completely taken aback by this proposal, but coming as it did from you, in whom I have since the very beginning placed implicit trust and confidence and whose advice I have throughout followed on the many questions affecting me personally and my State both in the present and in future, I have been able somehow to adjust myself to it. I would not, however, be human if I did not express my sense of keen disappointment and bewilderment at having been called upon to make such a sacrifice of personal prestige, honor and position when all along I have been content to follow, sometimes even against my own judgement and conscience the advice in regard to the constitutional position in the State which I have been receiving from the Prime Minister of India or yourself, sometimes against arrangements which were agreed to only a few months before. Nor would it be fair on my part to conceal from you my own feeling that while Sheikh Abdullah has been allowed to depart, from time to time as suited his inclinations, from the pledged and written word, to act consistently in breach of the loyalty which he professed to me prior to his release from jail and the oath of allegiance which he took when he assumed of lice, and to indulge openly along with his colleagues in a campaign of vitrification and foul calumny against me, both inside the State and outside, I should have had to be driven from position to position - each of which I thought I held on the advice of the State Ministry.

The contrast naturally fills me with poignant feelings. However, I once again putting any complete trusts in your judgement and benevolent intentions towards us, I might be prepared to fall in with your wishes and to absent myself from the State for a period of three or four months in consideration of the fact as emphasized by you, namely, complications created by the reference to UNO and the plebiscite issue.

Seeking assurances from Patel that his absence from the State would not be construed as a prelude to his abdication, he wrote to Patel:

I should like to be assused that this step is not a prelude to any idea of abdication. I should like to make it clear now that I cannot enters the latter idea even for a moment and am fully prepared to take the consequences. I regard such a demand from my Prime Minister and his colleagues as a clear breach of the many understandings on which constitutional arrangements have been based from time to time and a positive act of his disloyalty, treachery and deception.

Sheikh Abdullah should be clearly told to stop the campaign of vilification against me and to abandon all activities, both on his part and that of his followers, aimed at securing my abdication. I feel that the sacrifice which I am being called upon to make would be in vain if I continued to be the target of their public and private utterances.

Patel reiterated the assurances he had given to Hari Singh adding that the future constitutional organization of the State would be determined by the Constituent Assembly of the State. He wrote to Hari Singh:

Regarding the points which Your Highness has referred to me, I should like to state that the question of Your Highness' abdication does not arise. We have made the position quite plain to Sheikh Mohammad Abdullah, and we hope there will be an end to the public controversies centering round this matter as well as to the derogatory reference to Your Highness in the press and on the platform in the State. Your Highness will, of course, appreciate that the future Constitution of the State would be determined by the duly elected Constituent Assembly.

After the arrangements for the removal of Maharaja Hari Singh were completed, the Conference leaders were invited to Delhi to finalize a settlement with regard to the constitutional organization of the State and its position in the future organization of State. A decision had already been arrived by the Conference of State Premiers that instead of convening separate Constituent Assemblies in the States to frame the State Constitutions, the Constituent Assembly of India would draw up uniform constitutional provisions for the States. Since the National Conference leadership did not accept the decision of the Premiers Conference, separate arrangements had to be reached between the State and the Indian Government. Consequently, a Conference of the Conference leaders and the Central leaders was held in Delhi in May 1949.

Delhi Conference

The deliberations of the conference covered almost all the aspects of constitutional organization of the State and the relations between the State and the Union of India. Nehru informed the National Conference leaders of the agreement reached with Maharaja Hari Singh and told them that it had been agreed upon that a Constituent Assembly would be convened in the State which would determine the future of the Dogra rule and draw up a Constitution for the government of the State. Nehru further outlined the broad basis of the constitutional relations between the State and the Union of India and proposed the inclusion of Jammu and Kashmir in the constitutional organization of India with such modification as would suit the specific historical and political antecedents of the State. He proposed the application of the Constitution of India to the State with regard to the fundamental rights, principles of State Policy and the federal judiciary. He also proposed the extension of the Union jurisdiction to the State with regard to the subjects included in the Central List of the Constitution of India, which enumerated the powers of the Union Legislature.

While he Conference leaders accepted the proposals that the Constituent Assembly of the State would determine the future of the Dogra rule and draw up the Constitution of the State, they did not endorse the proposals for the temporary removal of the Maharaja, and the appointment of a Regent from the ruling family. They insisted upon the abdication of the Maharaja and emphasized that the temporary removal of the Maharaja would not ally the fears of the Muslims in the State, who identified the Dogra rule with their subjection.

In regard to the constitutional relations between the State and the Union of India, the argument of the Conference leaders was more Involved. They refused to accept the inclusion of the State in the territorial jurisdiction and the constitutional organization of India and refused to commit themselves to the acceptance of any application of the Constitution of India to the State in respect of the matters which did not correspond to the terms of the Instrument of Accession, and which had been approved by the Interim Government. The Conference leaders, in effect, proposed to create separate instruments which would be independent of the Constitution of India and which would determine the constitutional relations between the State and the Union of India. They particularly refused to accept the application of the Constitution of India to the State with regard to the fundamental rights, principles of State policy and the federal judiciary on the ground that the provisions with regard to the fundamental rights and the principles of state policy would be incorporated in the Constitution of the State and the extension of the jurisdiction of the federal judiciary, therefore, would be unnecessary.

The Conference leaders expressed strong reservations about the transfer of the State army to the Union and demanded the restoration of the State army to the Interim Government. They claimed that after the emergency was over and the Indian forces were withdrawn from the State, the State army would take over the defense of the State. The Conference leaders complained that during the Dogra rule, the State army had always been a close preserve of the Hindu Rajputs, excluding the Muslims and proposed its reorganization to rectify the deficiency of the Muslims in its ranks. They sought overtly to convey to the Central leaders, that they did not recognize that the deployment of the Indian troops in the State was a part of the arrangements envisaged by the Instrument of Accession and the powers of the Government of India in regard to the defense of the State, did not include the control and disposition of the armed forces of the State. The Conference leaders obviously presumed that the Indian forces had been deployed in the State to repel the invading armies of Pakistan and after that was achieved, they would be withdrawn and defense of the State would be entrusted to the Muslim ranks of the State army which the Interim Government would, in the meanwhile raise.

The Conference leaders underlined the following bases for the constitutional organization of the State and its constitutional relations with the Union of India:

  • That a separate Constituent Assembly would be convened in the State, on the basis of universal adults franchise to draw up the Constitution of the State;
  • That the Dogra rule would be abolished and the Maharaja would be replaced by a Chief Executive, who would for the time being be nominated by the Interim Governments;
  • The powers of the Maharaja, including the powers reserved for the Maharaja, would be transferred to the Interim Government;
  • That the constitutional relations between the State and the Union would be limited to the division of powers between the State and the Dominion Government stipulated by the Instrument of Accession, subject to such modifications as the Interim Government would specify;
  • The residuary powers would be vested with the State Government;
  • The provisions of the Constitution of India, except those which were deemed to correspond to the stipulations of the Instrument of Accession by the Interim Government, would not apply to Jammu and Kashmir;
  • The control over the State army would be restored to the State Government;
  • The existing financial relations between the State and the Dominion Government would continue.
The central leaders did not approve of the position taken by the Conference leaders and insisted upon the application of the provisions of the Constitution of India to the State of Jammu and Kashmir in regard to the territorial jurisdiction of the Union, Citizenship, fundamental rights and the related legal guarantees, federal judiciary and the principles of State policy. Nehru pleaded for the formulation of a uniform Bill of Rights for all the people in India, including the people of the Jammu and Kashmir State. He told the Conference leaders that no people in India, whatever the exigencies of the situation, in which they were placed, would be deprived of the rights and the safeguards which the Constitution of India would envisage and no State Government in India including the Government of Jammu and Kashmir, would be vested with the authority to restrict or limit such rights and safeguards. Nehru laid great stress on the application to the State of the principles of State policy of the Constitution of India, which he claimed the Constituent Assembly of India had evolved with great pride and which promised the people of India, social justice, freedom from want, protection against exploitation, expansion of education, the eradication of untouchability, protection of children and better standards of life.

The central leaders did not accept the contention of the Conference leaders in regard to the State army and explained to the Conference leaders that the Dominion Government had assumed exclusive power over the defense of the State and taken over the operational as well as administrative control of the defense forces of the State. The central leaders pointed out to the Conference leaders that the transfer of powers to the Dominion (Government about the State army had been accomplished by Instrument of Accession and the responsibility of the defenses of the State rested with the Government of India and could not be, under any circumstances, transferred to the State, even after the present emergency had ended. With regard to the recruitment of Muslims to the State army, Nehru assured the Conference leaders, that all people in India, including the people in the State, would enjoy equality of opportunity guaranteed by the Constitution of India and therefore, the Muslims in the State would not suffer any discrimination in respect of their recruitment of the State army.

An agreement was finally reached between the central leaders and the National Conference leaders, which envisaged that,

  • The provisions of the Constitution of India with regard to the Government in the States would not apply to the Jammu and Kashmir State;
  • The Constitution of the State would be framed by the Constituent Assembly of the State, which would represent the people of the State;
  • The future of the ruling family of Maharaja Hari Singh would be decided by the Constituent Assembly of the State;
  • The division of powers between the State and the Union would be based on the terms specified by the Instrument of Accession and the Union jurisdiction would extend to the subjects in respect of which the Dominion Government had assumed powers by virtue of the Instrument of Accession;
  • The Constituent Assembly of the State would determine such other subjects which would be transferred to the Union and in respect of which the Union would assume jurisdiction over the State;
  • The provisions of the Constitution of India with regard to the jurisdiction of the Union, Citizenship of the Union, fundamental rights, and the related legal safeguards, principles of State policy and the jurisdiction of the federal judiciary would extend to the State, subject to the modifications that the provisions would not impinge upon the special domicilliary rights in force in the State and the economic reforms the Interim Government would undertake;
  • The administrative and the operational control of the State army would remain vested with the Indian army;
  • The President of the Indian Union would be vested with the powers to modify or terminate the operation of the specific provisions of the Constitution of India in regard to the Jammu and Kashmir State, on the recommendations of the Constituent Assembly of the State.
It was agreed upon between the Conference leaders and the Central leaders that the Maharaja would, in accordance with the agreement reached between him and the Government of India, leave the State temporarily along with the Maharani and Karan Singh, the Yuvraj, would be appointed the Regent of the State in his place. It was, however, decided that the removal of the Maharaja would not form a part of the formal agreement reached between the Conference leaders and the central leaders, on the constitutional organization of the State and its placement in the Indian Union. Agreement was also reached between the Conference leaders and the central leaders with regard to the representation of the Jammu and Kashmir State in the Constituent Assembly India. Jammu and Kashmir did not join the Constituent Assembly of India before it acceded to India, nor were any representatives of the State deputed to the Constituent Assembly of India after its accession. Out of the ninety-three seats allowed to the States in the Constituent Assembly, Jammu and Kashmir was allotted four seats. It was agreed upon that the representatives of the State would be selected by the Interim Government and formally nominated by the Maharaja

Hardly a day after the Conference at Delhi was over, Sheikh Mohammad Abdullah addressed a long note to Nehru, seeking fresh clarifications on a number of issues on which decision had been reached between the National Conference leader and the central leaders. Nehru was dismayed at the manner in which the Conference leaders sought to raise fresh controversies with regard to constitutional organization of the State. He wrote to Abdullah:

  • In the course of talks at Sardar Patel's residence on 15 and 16 May 1949 between some of my colleagues and me and you and your colleagues, important issues raised by you in regard to the future of Jammu and Kashmir State were discussed.
  • Among the subjects that were discussed were: (i) framing of the Constitution of the State; (ii) the subjects in respect of which the State should accede to the Union of India; (iii) monarchical form of government in the State; (iv) the control of the State Forces; and (v) the rights of the citizens of the State of equality of opportunity for service in the State army.
  • As regards (i) and (iii), it has been the settled policy of the Government of India, which on many occasions has been stated both by Sardar Patel and me, that the Constitution of Jammu and Kashmir State is a matter for determination by the people of that State represented a Constituent Assembly convened for the purpose. In the special circumstances of the State of Jammu and Kashmir, the Government of India have no objection to the Constituent Assembly of the State considering the question of the continuance of the association of the State with a constitutional monarchy.
  • In regard to (ii) Jammu and Kashmir State now stands acceded to the Indian Union in respect of three subjects, namely foreign affairs, defense and communications. It will be for the Constituent Assembly of the State, when convened, to determine in respect of what other subjects the State may accede.
  • Regarding (iv) both the operational and administrative control over the State Forces has any been, with the consent of the Government of Jammu and Kashmir, taken over by the Indian Army. The final arrangements in this connection, for the duration of the present emergency, including financial responsibility for the expenditure involved, were agreed to between us on the 16th instant.
  • As regards (v) the citizens of the State will have equality of opportunity for service in the Indian army. Under Article 10 of the draft of the new Constitution as passed by the Constituent Assembly of India, equality of opportunity for employment under the State, including employment in the Indian Army is declared to be amongst the fundamental rights of all Indian citizens.
  • I trust that the Government of India's position, as stated above, will give you the clarification that you have asked fords.
Nehru visited Srinagar in the last week of May and had further discussions with Sheikh Mohammad Abdullah and the other leaders of the National Conference on the special position State would assume in the constitutional organization of India In fact, Sheikh Mohammad Abdullah had raised many disquieting issues in his communication to Nehru particularly about the administrative control of the State army during the emergency, the division of powers between the Central Government and the State and the future Constitution of the State.

Nehru assured Abdullah and the other leaders of the Conference that the future Constitution of the State would be drafted by the Constituent Assembly of the State and the future of the ruling dynasty would also be determined by the Constituent Assembly of the State. He further assured the Conference leaders that the division of powers between the State Government and the central Government of India would be governed by the provisions of the Instrument of Accession and the Union legislature would exercise such powers in relation to the State, as were transferred to the Dominion Government in accordance with the Instrument. Nehru told the Conference leaders that the operational and administrative control of the State army was vested with the Indian army command in pursuance of the agreements with the State Government but he reassured the State leaders that recruitment to the State forces would not he prejudiced by any considerations of caste, religion and place of birth.

Nehru assured the Conference leaders that the provisions of the Constitution of India, not incidental to the Instrument of Accession would not be extended to the State and the Constituent Assembly of the State would be vested with the residuary authority to formulate constitutional provisions with regard to matters which were not covered by the Constitution of India. He, however, told the Conference leaders that the provisions of the Constitution of India which envisaged the territorial jurisdiction of India, Indian citizenship, rights and obligations of the people of India and the related legal guarantees, the Directive Principles of the State Policy, the jurisdiction of the federal court in regard to the settlement of disputes between the Central Government and the States and the enforcement of constitutional rights, powers of the Government of India to deal with emergencies arising our of war, invasion or internal disturbances and the elections, would be applicable to the Jammu and Kashmir State, because such application emanated from the fact of accession of the Indian States to the Dominion of India. Many powers, Nehru told the Conference leaders, were assumed by the Government of India in regard to the State, because they were inherent in the accession of the States. He further told the Conference leaders that the provisions of the Constitution of India with regard to the Government of India would also be applicable to the State, subject to the exceptions incorporated in the Instrument of Accession, mainly because the Government of India could exercise powers in regard to the State which were conferred upon it by the Constitution of India. Nehru pointed out to the Conference leaders that any Constitution of the State of Jammu and Kashmir could not vest powers in the instruments which it did not create and, therefore, could not vest powers in the Government of India, which the Constitution of India did not defined.

Nehru asked Patel to communicate to Maharaja Hari Singh the terms of the agreement which had been arrived at with the Conference leaders Hari Singh was informed of the negotiations at Delhi but, at no stage was he consulted about the arrangements the Government of India sought to reach with the Conference leaders. Nehru wrote to Patel:

I hope that this will be an end to the squabbles that have been going on in public. This has been impressed upon Sheikh Abdullah and I am pointing this out to him again in a separate letter.

I take it that the Maharaja and the Maharani will keep out of the State, as agreed upon, for some months. The Bombay house will be at their disposal. It would have been better if they had gone out of the country for a period, say two or three months, but that is a matter for them to decide. I do not think any period would be fixed for the Maharaja's absence from Kashmir. The matter had better be left vague.

The Maharani naturally dislikes intensely the idea of being away from her son. I do not think it is necessary for her to be kept absolutely away and she can certainly visit her son later from time to time. But for the present, I think it would be to the advantage of all concerned, including the Maharaja and the Maharani, for both of them to stay away for a while.

I hope you will explain to the Maharaja and the Maharani as well as the Yuvraj the agreements arrived at between us and Sheikh Abdullah and his colleagues. The written agreement rightly does not say anything about the Maharaja going out of the State. But this was a private assurance given by us and we have naturally to stand by it.

The Interim Government nominated four members to represent the Jammu and Kashmir State in the Constituent Assembly of India. The nominations were referred to Hari Singh who was staying at Debra Dun. In May 1949, Maharaja deputed the representatives to the Constituent Assembly of India. The representatives of the State joined the Constituent Assembly on June 6, lg49. On 9 June 1949, Maharaja Hari Singh announced by a proclamation, his decision to leave the State and nominated his son Yuvraj Karan Singh, the Regent of the State.

Hari Singh had hardly left the State, when the Conference leaders, who had by now assumed complete control over the government of the State, began to extricate themselves from the agreement, which they had reached with the Central leaders at Delhi in May. The Conference leaders initiated a number of closed-door meetings in which the terms of the agreement reached with the Central leaders were subjected to serious consideration. Most of the meetings were secretly organized and were confined to the Muslim leaders of the Conference, the Sikhs and the Hindus being excluded. Prominent and influential Muslims who had opposed the accession of the State to India, and senior Muslim officers of the State Government who were opposed to the National Conference, were specially invited to attend these meetings. Many among them were in clandestine contact with the Azad Kashmir authorities on the other side of the cease-fire line and worked for the intelligence agencies of Pakistan, which operated in the State. The feelings which were voiced in these meetings broadly represented:

  • That the National Conference leadership should not oppose the proposed plebiscite in the State and accordingly should not accept the inclusion of the State in the territorial jurisdiction or the constitutional organization which the Constitution of India envisaged;
  • That India was a predominantly Hindu majority State and the Muslims of Kashmir would lose their identity if the State was integrated into the proposed constitutional organization of India, in which the Hindus would always exercise dominance;
  • That the Muslim majority character of the State should not be impaired and the only safeguard to protect it would be to keep the State out of the constitutional organization of India;
  • That the convocation of the Constituent Assembly would at the time be premature and the Assembly should be convened after the final decision with regard to the accession of the State was reached and the part of the State under the occupation of Pakistan was reunited with the rest of the State;
  • The Interim Government should devise a Constitution for the government of the State.
The Conference leaders, including Sheikh Mohammad Abdullah, Mirza Afzal Beg and Mulana Masoodi who had negotiated the agreement with the Central leaders in May at Delhi, tacitly agreed with the views that the State should not be brought within the territorial jurisdiction of the proposed Union of India or its constitutional organization and the Muslim majority character of the State should form the basis of the relations between the State and the Union of India. They also agreed with the view that the relations between the State and the Union of India should be based on the terms which the Instrument of Accession specified for the accession of the State of India

The Conference leaders decided to repudiate the agreement they had reached with the Central leaders in May, and evolved fresh proposals on which they claimed, the constitutional relations between the State and the Union of India would be based. The proposals underlined that:

  • The State would not be brought within the territorial jurisdiction of the proposed Union of India or its constitutional organization;
  • The constitutional relations between the State and the proposed Union of India would be based on the terms of the Instrument of Accession;
  • The administrative control over the State forces would be restored to the State after the forces were reorganized and the State was In a position to undertake their operational control;
  • No instruments, including the Constituent Assembly of the Jammu and Kashmir State would be vested with any constituent power to change and modify the existing constitutional relationship between the State and India;
  • The Constituent Assembly of the State would be vested with the power to draw up the Constitution of the State which would envisage provisions pertaining to the quality of judicial review, the quantum of individual freedom and the related legal safeguards, principles of the State policy and election to the representative bodies envisaged by the Constitution.
The Conference leaders did not apprise the central leaders of their views till the draft provisions of the Constitution of India were drawn up and sent to the Conference leaders for their approval. The draft provisions were based on the agreement, which had been concluded between the Conference leaders and the central leaders. The draft provisions were enshrined in draft Article 306-A of the Constitution of India. The Article stipulated:
  • The provisions of the Constitution of India with regard to Part B States would not apply to the Jammu and Kashmir State;
  • A Constituent Assembly would be convened in the State to draft the Constitution of the State;
  • Provisions of the Constitution of India with regard to the territories of India, Indian citizenship, fundamental rights and the related legal safeguards and the Directive Principles of the State Policy would apply to the State;
  • The other provisions of the Constitution of India would apply to the State with such exceptions as were mutually agreed upon between the Government of India and the State Government;
  • The Union would exercise powers with regard to the subjects, which were specified by the President of India to correspond with the subjects transferred to the Dominion Government by the Instrument of Accession, in consultation with the State Government, and such other subjects as would be specified by the President of India in concurrence with the State Government;
  • The President of India would be empowered to modify, restrict or suspend the operation of the provisions of Article 306-A, on the recommendations made by the Constituent Assembly of Jammu and Kashmir State.
The Working Committee of the Conference sat in several sessions to examine the draft and as was anticipated, refused to approve it. The Uncorking Committee resolved that the National Conference could not accept the stipulations of Article 306-A, as a basis for constitutional relations between the State and the Union of India. The Working Committee disapproved of the preamble to Article 306-A, which stipulated that the provisions of the Article would be of a transitional nature and would be subject to modification by the Constituent Assembly of the State. The Working Committee also disapproved of the application o any provisions of the Constitution of India to the State except the provisions, which corresponded to the terms of the Instrument of Accession. The Working Committee expressed the fears that the application of the provisions of the Constitution of India with regard to citizenship, fundamental rights and the related constitutional legal guarantees would prejudice the domicilliary State-Subjects Rules in force in the State.

 



The State Subject rules imposed restrictions on people who were not state subjects in respect of immovable property in the State, state services, and other rights, which were available to the state subjects.

Almost all the Muslim members of the Working Committee of the Conference denounced the settlement, which the Conference leaders had reached with the Central leaders in May at Delhi. The Hindu and the Sikh members of the Committee watched the proceedings with helpless indignation. Few of the Conference leaders registered their disagreement with the decisions the Working Committee had taken. The small section of the leadership, which felt ravaged over the developments in the Conference, hailed from Jammu. The people of Jammu, they knew, would never support the move to keep the State out of the constitutional organization of India and any attempt to do so would not only alienate them but would evoke severe resistance from them.

On October 12, 1949, Sheikh Mohammad Abdullah communicated to Gopalaswami Ayangar the decisions of the Working Committee and informed him that the Working Committee had disapproved of the draft constitutional provisions embodied in Article 306-A. Abdullah informed Ayangar that the Working Committee had refused to accept that the constitutional provisions with regard to the State would be of transitional nature and would be subject to modification by the Constituent Assembly of the State. He informed Ayangar that the Working Committee had disapproved of the application of the Constitution of India to the State except in respect of those of its provisions, which corresponded, to the terms of the Instrument of Accession. The Working Committee had expressed fears, Abdullah informed Ayangar, that the application of the provisions of the Constitution of India, pertaining to the Indian citizenship, the fundamental rights and the Directive Principles of State Policy would prejudice the domicillary State-subject rules. Sheikh Abdullah sent an alternative draft to Gopalaswami Ayangar, which stipulated the application of only such provisions of the Constitution of India to the State, as corresponded to the stipulations of the Instruments of Accession. Sheikh Mohammad Abdullah added an explanation to his draft which defined the State Government as "the Ruler of the State acting on the advice of the Council of Ministers appointed under the proclamation of the Maharaja dated 5 March 1948."

Ayangar received a jolt when the communication of the Conference was delivered to him. On 14 October 1949, he had a long meeting with Sheikh Mohammad Abdullah and Mirza Afzal Beg, and tried to persuade the Conference leaders to accept the draft provisions of Article 306-A. Ayangar explained to the Conference leaders that the State would be reserved the right to frame a Constitution for its government and would be vested with all powers of the government except those which had been transferred to the Dominion Government by the Instrument of Accession. However, he told the Conference leaders that the accession of the State underlined that the State would be brought within the broad structure of the imperatives, the Constitution of India envisaged. The Conference, leaders stuck to their stand and told Ayangar bluntly that the State had acceded to India in regard to only three subjects: foreign affairs, defense and communications and retained its independence in all other aspects. They told Ayangar that it was on that understanding that the people of the State had supported accession of the State to India and since the Conference owed a duty to the people, they would not be able to accept the these provisions. The meeting ended without a settlement.

Ayangar did not possess the acumen to deal with the Conference leaders. Nehru was away in the United States of America. Over-weighed by the experience at the Security Council, Ayangar dreaded to antagonize the Conference leaders. He gave way and redrafted the provisions of Article 306-A, restricting the application of the Constitution of India to the State to Article 1, which defined the territories of the Union, and the provisions pertaining to Indian citizenship, and making the fateful omission of deleting the provisions with regard to the fundamental rights and the related constitutional safeguards. He wrote to Sheikh Mohammed Abdullah:

Our discussion this morning, as I indicated to you, left me even more distressed than I have been since I received your last letter from Srinagar.

But this personal reaction of mine is irrelevant when I feel weighed with the responsibility of finding a solution for the difficulties that after Pandit Ji left for America and within the last few days, have been created, from my point of view, without adequate excuse.

In spite of this personal feeling, I am anxiously keen now as ever I have been to see that you are not given any cause for genuine or even imagined grievance in regard to the policy that the Government of India are following, in relation to Kashmir. I have therefore, since you left me this morning, tried to find a way out of the present situation in regard to Article 306-A.

I enclose a draft of Article 306-A with the language of it readjusted so as to meet practically all your points.

I do not wish to write a thesis on the changes that I have made. You will be able to recognize them easily. If you wish to have any further elucidation in the matter I would request you to come over and discuss it frankly with me.

I do hope you will appreciate the gesture I am making. If you are agreeable to this new draft being substituted for the one of which the Drafting Committee had already given notice, I shall ask the Drafting Committee to give notice of this draft in substitution of the other one. Personally I should like you to move this draft yourself in the House. We shall be there to support you, and I hope the debate would be maintained at such a high level that a report on it, when cabled to America will have an effect on the discussions of the Kashmir problem, that may there be going on which will be of the maximum help to Pandit Ji.

I am looking forward to your rising to the occasion.

Apparently Ayangar had learnt no lessons at the Security Council otherwise why should he have concerned himself so seriously, in calling upon the Kashmir delegation to initiate the debate on the special constitutional provisions for the State. Which high level of discussion, he asked Sheikh Abdullah to maintain, so that Nehru would take advantage of it in America? Sheikh Mohammad Abdullah had delivered a more spirited harangue in the Security Council and that had earned both Abdullah and Ayangar more calumny. If Ayangar sought to please Nehru, he should have realized that no one in America would have applauded him for having framed the draft provisions of Article 306-A and having condemned the people of the State, particularly the Hindus, the Sikhs and the Buddhist minorities, to servitude and suffering. Ayangar had served the State as the Prime Minister to Maharaja Hari Singh for more than six years and he was aware of the intricate balances of community demands, regional pressures and amorphous class interests which characterized the political sociology of the State. He, as well as Nehru had experienced the ruthless severity with which the Conference leaders had sought to reorganize these balances and to establish fresh alignments, which ensured political precedence for the Muslims in the State. Gilding the perfidy, he wrote to Patel:

Sheikh Abdullah and two colleagues of his had a talk with me for about an hour and a half this morning. It was a long drawn out argument, and, as I told you this morning, there was no substance at all in the objections that they put forward to our draft. At the end of it all, I told them that I had not expected that, after having agreed to the substance of our draft both at your house and at the party meeting, they would let me and Pandit Ji down in the manner they were attempting to do. In answer, Sheikh Abdullah said that he felt very grieved that I should think so but that in the discharge of his duty to his own people he found it impossible to accept our draft as it was. I told him thereafter to go back and think over all that I had told them and hoped that he would come back to me in a better frame of mind in the course of the day or tomorrow

I have since thought over the matter further and dictated a draft, which, without giving up the essential stand we have taken in our original draft, readjusts it, in minor particulars in a way, which I am hoping Sheikh Abdullah would agree tow

Patel, apparently, did not favor the modifications, Ayangar had made in Article 306-A. He did not approve of the deletion of fundamental rights and Directive Principles of State Policy, from the provisions of the Constitution of India, which would apply to the State. Perhaps, Patel visualized the consequences to which such a course of action would inevitably lead. He wrote to Ayangar:

I find there are some substantial changes over original draft, particularly in regard to the applicability of fundamental rights and Directive Principles of State Policy. You can yourself realize the anomaly of the State becoming a part of India and at the same time not recognizing any of the provisions.

I do not at all like any change after our party had approved of the whole arrangement in the presence of Sheikh Sahib himself. Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people. Of course, he owes a duty to India or to the Indian Government, or even on a personal basis, to you and the Prime Minister who have gone all out to accommodate him.

In these circumstances any question of my approval does not arise. If you feel it the right thing to do, you can go ahead with it.

Ayangar's discomfiture did not end here. The revised draft of Article 306-A, was also rejected by the Conference leaders. Sheikh Mohammad Abdullah wrote to Ayangar that it was not possible for him and his colleagues to accept the revised draft as well. He sent an alternative draft to Ayangar which underlined that the provisions of the Constitution of India which corresponded to the terms of the Instrument of Accession would apply to the State and the other provisions of the Constitution of India would apply to the State with the approval of the Interim Government. Abdullah wrote to Ayangar that the alternate draft "went far beyond the sphere in Aspect of which we had acceded to India". Meanwhile Afzal Beg gave the Constituent Assembly the notice of an amendment in Article 306 A, which sought to restrict the application of the Constitution of India to the terms of the Instrument of Accession.

Ayangar met the Conference leaders again and tried to persuade them to accept the revised draft. However, the Conference leaders did not relent. Finally, Ayangar drew up a fresh draft in consultation with Afzal Beg, who was deputed by Sheikh Mohammad Abdullah to negotiate a settlement with Ayangar. Abdullah pulled the strings from behind. The revised draft stipulated:

  • Article I would apply to the State and the State would be included in the territories of the Union of India;
  • No other provision of the Constitution of India would be applied to the State, except with the approval of the Interim Government of the State;
  • The division of powers between the Union and the State would be determined in accordance with the terms of the Instrument of Accession;
  • The President of India would be empowered to terminate or modify the operation of the Constitutional provisions with regard to the State on the recommendation of the Constituent Assembly of the State;
  • The State Government would be construed to mean the Maharaja acting on the advice of the Council of Ministers appointed under his proclamation dated 5 March 1948.
The revised draft of Article 306-A was circulated in the Constituent Assembly on 16 October, 1949. It came up for the consideration of the Assembly the next day. Many of the members of the Constituent Assembly objected to the explanation defining the Government of the State and pointed out to Ayangar that the explanation vested the powers of the government with the "Council of Ministers appointed-under the Maharaja's Proclamation dated 5 March 1948", in perpetuity and in effect excluded all subsequent government of the State from the purview of the Constitution of India Ayangar had probably glossed over t anomaly involved in the explanation. Ayangar modified the explanation in so far as the Government of the State would be construed to mean the "person for the time recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March 1948." Ayangar informed the Conference leaders about the modifications he had made in the explanation on the morning of 17 October 1949. The Conference leaders refused to approve of the modification Ayangar had made. Ayangar along with Maulana Azad assured the Conference leaders that the modification in the explanation was deemed necessary to avoid the discrepancy in Article 306-A, which implied a perpetual Interim Government. The Conference leaders however, did not approve of the amendment and told Ayangar and Azad that if the modifications to the explanation were not withdrawn, the Conference leaders would move the amendment of which they had given notice to the Assembly before the draft was revised by Ayangar and Beg.

Unable to bring round the Conference leaders to condescend to the changes he had brought about in the draft provisions, Ayangar presented the draft Article 306-A to the Constituent Assembly for its consideration The Conference leaders sulked away and did not join the debate on the Wit provisions. They joined the deliberations of the Assembly after Ayangar had already delivered a part of his speech. The Conference leaders watched the proceedings in grim silence. "The President of the Assembly waited for a minute or two for members to rise for making speeches before he put the draft to the House". The Conference leaders did not rise to speak and did not move any amendment to the draft. The draft was adopted by the Assembly without any dissent

The Conference leaders were bitter at the turn the events had taken. Sheikh Mohammad Abdullah wrote a sharp rejoinder to Ayangar asking him to reconsider the decision the Constituent Assembly had taken on Article 306-A. He wrote to Ayangar that if that was not done, he would resign from the Constituent Assembly along with the other representatives of the Jammu and Kashmir State. Sheikh Mohammad Abdullah wrote:

As I have told you before, I and my colleagues have been extremely pained by the manner in which the thing has been done, and, after careful consideration of the matter, we have (arrived) at the conclusion that it is not possible for us to let the matter rest here. As I am genuinely anxious that no unpleasant situation should arise, I would request you to see if even now something could be done to rectify the position. In case I fail to hear from you within a reasonable time, I regret to say that no course is left open for us but to tender our resignation from the Constituent Assembly.

Ayangar was sore. He had not been treated with any consideration by the Conference leaders. Indeed, he had gone to the farthest limits to accommodate their views. He could not retrieve the ground he had lost, but is was evident that he could not go any further to appease the State leaders. He wrote back to Abdullah:

It is true that after having unsuccessfully attempted along with Maulana Azad, to persuade you to agree willingly to substitution of the words "for the time being" for the word "appointed", I did move the Article with the amendment after obtaining the permission of the President to do so. The whole House accepted this. I am sorry that you could not move any amendment of your own against the one I moved. There was, however, nothing to prevent you or any of your colleagues from opposing the amendment that I did move, and as a matter of fact, we were looking forward to your making a speech on the whole of the article and believe the President waited for a minute or two for members to rise for making speeches before he put the draft article to the House.

Ayangar wrote to Abdullah, that, if he and his colleagues felt aggrieved they could take such steps as the rules of the House allowed for any rectification. He forewarned Abdullah that the resignation of the Conference members from the Constituent Assembly would have serious repercussions, in Kashmir and outside. He wrote:

I do not consider, therefore, that there is any justification for your entertaining any idea of resignation from the Constituent Assembly. The step, if taken, would produce the most unwelcome and serious repercussions in Kashmir, India and the world, and I must ask you to communicate with the Prime Minister before you decide on anything like it. For myself, I shall pass on to him your letter and this reply of mine to it.

At the revision stage, Article 306-A was remembered Article 370 of the Constitution of India. On 25 November 1949, the Regent of the State, Karan Singh, by a proclamation ordered that the relations between the State and the Union of India be governed by the Constitution of India. According to the proclamation the Constitution of India superseded and abrogated all other constitutional provisions inconsistent with it which were in force in the State. On 26 January 1950, the Constitution of India came into force.

Special Status

In accordance with the special provisions embodied in Article 370 of the Constitution of India, the Jammu and Kashmir State was exempted from the application of the provisions of the Constitution of India dealing with the States in Part B of its First Schedule.22 In Part B of the First Schedule were listed the erstwhile princely States, which had acceded to the Dominion of India, but which had not merged with any province or had not been reorganized into centrally Administered Areas. Hyderabad, Jammu and Kashmir, Mysore, Madhya Bharat, Patiala and East Punjab States Union, Rajasthan, Saurashtra, Travancore - Cochin and Vindhya Pradesh were included in Part B of the First Schedule. A separate part: Pan VII was included in the Constitution, providing for the internal constitution of all these States. Provisions of Part VII provided that Part VI of the Constitution, which envisaged provisions for Part A States, corresponding to Governor's provinces, would also apply to the Part B States, subject to certain modifications and exceptions. Each of the States was to have a democratic government with a Council of Ministers functioning in responsibility to a legislature constituted in the same manner as in the Part A States. The Jammu and Kashmir was saved from the application of Part VII of the Constitution and was reserved the right to frame a separate Constitution for its government. Provisions were incorporated in Article 370 for the institution of a Constituent Assembly in the State to draw up its Constitution. No other provision of the Constitution of India except Article I was made applicable to Jammu and Kashmir.

The powers of the Parliament to legislate in regard to the State were limited to the matters, which were declared by the President of India, in consultation with the Government of the State, to correspond to the stipulations of the Instrument of Accession. The Union Government was reserved the power to exercise jurisdiction in regard to the State in respect of subject transferred to the Government of India by virtue of the Instrument of Accession. The residuary powers were reserved for the State. The scheme of the divisions of power between the Union and States, embodied by the Constitution of India, was not, therefore, extended to Jammu and Kashmir.

Provisions were incorporated in Article 370 by virtue of which the President of India was empowered to transfer powers to the Union in regard to such other subjects in the Union List, the Concurrent List and the State List of the Constitution of India, which he specified, with the concurrence of the State Government. The President was also empowered to extend to the State, the application of the provisions of the Constitution of India, which were riot already made applicable to the State, with such modifications and exceptions as the President would by order specify. The President was empowered to issue such orders in consultation with the State Government and in case such orders related to the matters specified in the Instrument of Accession with the concurrence of the State Government. If any such orders, which involved the transfer of additional powers to the Union or the application of any further provisions of the Constitution of India to the State, were promulgated by the President before the Constituent Assembly of the State was convened, the consultation and concurrence of the State government were to be placed before the Constituent Assembly "for such decision as it might take".

Article 370 envisaged provisions, which empowered the President of India to declare by public notification that the provisions of the Article would cease to operate or would be operative only with such Exceptions and modifications as he would specify. All such notifications were to be issued by the President only on the recommendations of the Constituent Assembly of the State.

An interesting aspect of Article 370 was that it envisaged a perpetual Constituent Assembly in the State, at least, so long as the transitional provisions remained on the Statute Book. The framers of the Constitution presumed, that the temporary provisions, envisaged by Article 370 would last only for a relatively short duration and their operation would hardly extend beyond the time the Constituent Assembly of the State would take to draft the Constitution of the State. The Constituent Assembly of the State was dissolved in 1957, after it had completed the task of framing the Constitution of the State.

Article 370 did not vest any constitutive power in the hands of the President, nor did it vest any such power with the Constituent Assembly of the State. The President, as well as the Constituent Assembly, was empowered to order that the operation of the provisions of Article 370 would cease, or continue with such amendments and exceptions as they would specify. They were subject to the limitations which one placed on the other.

The powers to amend the provisions of Article 370, were vested with the Parliament of India, which was not subject to any limitation imposed by Article 370 or any other provision of the Constitution of India. The constituent power to amend the Constitution of India in accordance with the procedure laid down by it is unfettered and cannot be restrained except by an instrument, expressly created by the Constitution. No limitation was placed on the powers of the Parliament to amend Article 370. Even if such a stipulation was incorporated in the Constitution of India and provisions were incorporated in Article 370, which placed limitations on the Parliament of India to amend its provisions, there was nothing which stood in the way of the Parliament to repeal the limitation as well as abrogate or amend the provisions of the Article.

 

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