Isher Singh Jasrotia
When we make comparison between Instrument of Accession and Article 370, in case of first, the action plan was for the Instrument of Accession of Indian princely states JK like others. Instrument of Accession aimed at unity and integration of Union of India – Bharat, paving a way for the future of an Independent Constitution of India, applicable to whole of India including the state of JK amongst the Union of States of the Indian Federation.
The Instrument of Accession was unconditional. The acceding Monarch Maharaja Shri Hari Singh had never used the terms “Will of the people or “plebiste” or any other condition in Instrument of accession. It was in line with the Government of India Act 1953 and the Independence of India Act 1935 and Independence of Inida Act 1947.
The accession of Jammu and Kashmir State to the Indian Union in terms of Instrument of Accession was an Act of India, hence Instrument of Accession also stand outside the realm of statutes and as such a matter of accession cannot be questioned.
It is pertinent to mention to know three important components of Articules 370 viz ” in consultations with the Government of the State, “with the concurrence of the Government of states”, and the recommendation of the Constituent Assembly of the State shall be necessary
Articles 370 contains 3 clauses
(1) Clause 1 provides that provision of Articles 370 Constitution of India shall not apply in relation to the State of JK
( Paradox Articles 238 originally related to Part B states in the original constitutional language, which was repealed from the Constitution of India by seventy Amendment Act 1956 as consequence of states Reorganisation Act, 1956 doing away with the Part A, B, C states. Unfortunately the Article continued to occupy a place in the language of Article 370.
Clause I also stipulates that the power of Parliament of India to make law for the State of JK shall be limited to.
(i) Those matters in the Union List and 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 a state to the Dominion of Indian Union viz Defence, External Affairs, Communication and Ancillary.
(ii) Such other matters in the said list as, with the concurrence of the Government of the State, the President may by order specify i.e. Central Laws in terms of matter enumerated in the Union List and Concurrent list, shall not extend to the State of JK without the concurrence of the State Government,
(iii) the provision of Article 1 and of this Article, shall apply in relation in the State of J and K
Article 1 states that India that is Bharat Union of States Schedule I contains the State of Jammu and Kashmir as one of Union of State of Indian Union Schedule IV also contains representatives from the State of Jammu and Kashmir to the Council of States i.e Rajaya Sabha. Article I become operative on the date of adoption of the Constitution of India, 26th November 1949, Accession of the State of JK took place on 26th -27th October 1947. JK like other Native/Princely States became an integral part of India Federal Democratic Republic on the date of adoption of the Constitution of India i.e 26th November 1949.
(iv) such of the other provisions of the Indian Constitution and subject to such exceptions and modifications shall apply in relation to the State of JK as the President may be order specify : Provided that no such order which relates to the matter specified in the Instrument of Accession, shall be issued except in consultation with the Government of the State, and provided further that no such order which relates to matter other than those referred to in the Instrument of Accession except with the concurrence of the Government of the State.
Constitutional ( Applicable to the State of Jammu and Kashmir) order 1950 Article I (JK as an integral part of the India Union) and Articles 6-11 (Citizen of India -thus naming all permanent resident of JK as citizen of India) were extended and made applicable to the state of JK immediately. Subsequent Constitutional Applicable to the State of Jammu and Kashmir) order 1954, 1962 1966, 1985 extended provision of the Constitution of India with such exceptions and modifications of course with the concurrence and in consultation with the Government of the State from time to time in order to bringing the State in the national stream.
By Constitutional Application to the State of Jammu and Kashmir order, President added a new Article 35A in the Fundamental Rights part of the Indian Constitution giving special privileges to the permanent residents of JK viz purchase of immovable property within the state, free education and scholarship and public employment. This addition raises some constitutional questions:
1Does the President of India enjoy power under Article 370 to add a provision in the Fundamental Rights part of the Indian Constitution.
2.Can the President by Presidential Order create a classification between the citizens of India i.e. citizen of India on the whole of the one side not to enjoy special privileges and the permanent resident of JK as citizen of India on the other side enjoy special privileges which are otherwise denied to the citizen ?
3.Can the President of India exercise constituent making power under article 368 by adding Articles 35A?
4.Is this power compatible with the constitutional spirit constitution culture and constitution practice ?
Clause 2 encapsulates that if the concurrence of the Government of the State referred to the matters in the Union list and the concurrent List was given before the Constituent Assembly for the purpose of framing the Constitution of the state is concerned, it shall be placed before Constituent Assembly for such decision as it may take thereon.
Clause 3 empowers the President to declare, by public notification, the Article 370 shall cease to be operative or shall be operative only with such exception and from such date as he may specify.
Provided that the recommendation of the Constituent Assembly of the State shall be necessary before the President issues such notification,
Constituent Assembly of the State finally adopted by the Constitution of JK that was inaugurated on 26th January 1957 duly approved in unequivocal constitutional language, the integration of the State of JK to the Indian Union.
Section 3 of the Constitution of Jammu and Kashmir states ” The State of Jammu and Kashmir is and shall be an integral part of the Union of India”
Section 4 of the Constitution of Jammu and Kashmir State further states “The territory of the State of Jammu and Kashmir shall comprise all the territory which on the Fifteen Day of Aug 1947 were under the sovereignty or suzerainty of the Ruler of the State”.
