[Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This Response Piece is part of a series of posts indexed here discussing the public law themed articles featured in the recently released Issue 2 of the 2020 Volume of the Indian Law Review.  This is Zaid Deva’s Response to Muhammad Mutahhar Amin’s Response Piece to the paper by Zaid Deva. One can read the short summary of the paper by Zaid Deva here].

I am grateful to the LAOT team for hosting this discussion on my article and to Mutahhar Amin for his kind and extensive review. In this piece, I will be responding to and elaborating on some of the points that Mutahhar raises in his response piece. 

On Article 370 and its abrogation as part of one process
As Mutahhar has pointed out, the article was indeed conceptualised in the context of the challenge to Article 35A on basic structure grounds and therefore engages with the August 5 events to a limited extent. The reason for the limited engagement is that the abrogation of Article 370 is part of one process engineered towards systemic disempowerment of the people of J&K that begins even before the provision was incorporated in the Indian Constitution and culminates into August 5. 

This process involves the radical changes to the draft Article 370 proposed by Ayyangar (the original draft was prepared by the Government of J&K). The unilateral change in the explanation to Clause 1 by the Indian side enabled the dismissal of Sheikh Abdullah in 1953, and the sustained dilution of autonomy that Nehru and G L Nanda unscrupulously labelled as ‘erosion’. Further, the downgrading of the State’s President and Prime Minister to Governor and Chief Minister disingenuously referred to as a ‘change in nomenclature’, the 1975 accord between the Sheikh and Indira and reneging on whatever little was promised, the infamous rigging of 1987, the resultant insurgency, the six-year long President’s rule under which Article 370 was further eroded, and finally the leading up to the August 5 events. My interest in the article was more on the foundations and some aspects of this process. Though a question that this process raises is whether Article 370 really was a mechanism to guarantee autonomy or an instrument engineered towards subjugation and disempowerment. 

On the Indira-Sheikh Accord of 1975, its worth pointing out that it gave permanence to the temporary character of Article 370 (Clause 1 of the Accord states that Article 370 shall continue to govern the relationship between India and J&K) since it was arrived at in the backdrop of the Shimla Agreement between India and Pakistan where both sides agreed to settle the Kashmir dispute bilaterally. This international dimension to Article 370 cannot be overlooked. 

Skewed narratives and J&K Constituent Assembly Debates 

I am in agreement with Mutahhar that there is need to engage more with J&K constituent assembly debates, more so since the body had somewhat different expectations from the State’s accession to India, reflected at least in the debates till 1953. Invoking only the Indian constituent assembly debates (which in fact is just one speech by Ayyangar) on the Indo-J&K relationship produce narratives which remain heavily skewed towards India and the ICA. Consider the following: Ayyangar when moving draft Article 370 in the Indian constituent assembly stated, ‘the effect of this article [moved as Article 306-A] is that the Jammu and Kashmir State which is now a part of India will continue to be a part of India, will be a unit of the future Federal Republic of India’. Narratives such as these have gone a long way in inspiring judgments of the Indian Supreme Court which in turn reinforce accounts skewed towards India, the most recent one being the SBI casewhere the court came to the conclusion that ‘State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India’. On the other hand, a bare reading of the report of the Basic Principles Committee constituted by the J&K CA reveals a divergence in aspirations: ‘While retaining its autonomous character, the State will continue to remain acceded with the Union of India. The sovereignty of the State resides in the people thereof and shall except in regard to matters specifically entrusted to the Union be exercised on their behalf by the various organs of the State.’ 

When the trust is severed, what remains of the accession?

Apart from the skewed narratives that reliance on ICA debates produce, some cases go one step further and distort history. In Sampat Prakash, the SC while holding that powers under Article 370 continued to operate after the dissolution of the J&K CA, observes, ‘it was because of the special situation existing in Jammu and Kashmir that the Constituent Assembly [of India] framing the Constitution decided that  the Constitution should not become applicable to Jammu and Kashmir under Article 394, under which it came into effect in the rest of India, and preferred to confer on the President  the power to apply the various provisions of the Constitution with exceptions and modifications’. Notice how the part of history related to the IoA which expressly excluded J&K from application of the Indian Constitution (clause 7) and the fact that Article 370 itself was in the form of a ‘compact’ between J&K and India, gets erased in this account which locates the source of authority in the ICA. 

Before I proceed, I’d like to highlight that the J&K CAD had always remained quite inaccessible compared to the Indian CAD until the State government provided access in the form of two Official Reports on the legislative assembly’s website. In the wake of the August 5 decision and as part of its project of erasure, the CAD have now been taken down from the new website. 

On sovereignty 

It is indeed difficult to accept that sovereignty resides in an entity which has transferred legislative competence on defence and foreign affairs – both essential attributes of sovereignty, to another entity. But this is where the contextual assessment, and the question of nature and the temporality of such transfer assume significance. Further, the question of sovereignty in the context of J&K necessitates a phase-wise inquiry: from partition to accession, from accession to application of Article 370, from Article 370 to the framing of the constitution and finally the erosion of Article 370 in the aftermath of the constituent assembly. With respect to the contextual assessment, as already pointed out, the nature of J&K’s accession was radically different from that of the other princely states. 

On the nature of transfer of law-making powers, it’s noteworthy that while at the time of accession, India was being governed by the Government of India Act of 1935 along with the Indian Independence Act of 1947, the State had its own constitution – the Constitution Act of 1939 in force. Interestingly, Constitution of 1939 vested the ruler with ‘inherent powers in executive, judicial and legislative matters’. As evident, there is a disharmony between the State’s constitution and the Instrument of Accession (“IoA”). Further, the State constitution was not amended to give effect to the IoA nor did the IoA provide for amendments to the State constitution. What does this imply for the State’s accession to India and its contours?

Here, reference must be made to a little known but arguably one of the most important decisions on accession till now – Rehman Shagoo & Ors. v. State of J&K where this question was first raised. In this case, a certain ordinance promulgated by the ruler after the State’s accession to India, was challenged in the J&K HC on the ground that the same corresponded to the subject defence, and with the signing of IoA, the ruler had ‘ceded’ law-making powers over ‘defence’ to the union. On the strength of the Constitution Act of 1939, the court held that the IoA merely ‘created legislative power’ in the Indian dominion over the three subjects, while the ruler ‘retained full ambit of that power in himself as well’ i.e. the ‘legislative power [on the three subjects] retained by the ruler was of the same magnitude as it was before the IoA was executed.’ Therefore, as per Rehman Shagoo, not just did the ruler retain complete sovereignty over the State (Clause 8) with the IoA being of no consequence to it, the competences vested in the union through the IoA were not in the form of a surrender, rather it led to a concurrent exercise of law-making on the three subjects. The State was not divested of the competence to legislate on defence, foreign affairs and communications. Relying on Section(s) 101 and 107(3) of the Government of India Act, 1935, it concludes that in cases of repugnancy, the central law would prevail over the State law. 

Of course, Article 370 altered this meaning of accession by vesting exclusive law-making powers in the union and by constitutionalizing the relationship. Further, the IoA did not provide for inclusion of J&K in the Indian territory; that was achieved through Article 370 by a sleight of hand. But the important takeaway from the Rehman Shagoo case is that the ruler was not divested of competences that are essential attributes of sovereignty. This further complicates the question of what sovereignty can mean in the context of J&K and its relationship to India. Keeping the fact that the ruler acceded under duress as the premise, the very legality of the IoA is called into question. Be that as it may, after the IoA the ruler’s authority on the three subjects was still limited to the extent of repugnancy. This is why the question of temporality matters. 

It’s worth pointing out that the accession was provisional on two counts: one, the promise of referendum and two, once the referendum was ruled out by the Indian side, it turned to the J&K CA seeking ratification of the accession. In fact, one of the purposes for which the J&K CA was convoked was to decide the question of accession and to determine the sphere of union’s jurisdiction. Till the time at least the accession was ratified and the union jurisdiction was given finality, the relationship remained provisional. And when the very relationship was temporary in character subject to ratification, that in itself suggests that the State’s distinct identity was not compromised till the act of ratification was achieved. Because what is provisionally transferred cannot lead to a permanent change in the State’s character. I refrain from using the term ‘suzerainty’ for the aforementioned reasons and further because that’d require a more comprehensive analysis, something which cannot be encompassed within the ambit of this response piece.  

The questions that Mutahhar raises in his response piece, though very pertinent, have unfortunately received very little attention in any Indian scholarship on Article 370. The master narratives on J&K’s accession to India – from accession to the drafting of the constitution – are treated as a linear form where one period seamlessly give rise to a new one. The intervening period between two stages and how the relationship is re-configured at each such stage has continued to remain understudied. Foremost among them is the period between 1947 and 1949 – between accession and Article 370 – and the attendant inherent assumption of a blank constitutional space until Article 370 was applied and the related provisions of the Indian Constitution. Further, in mainstream accounts of the story of integration of India, J&K gets lumped together with the rest of the princely states that joined India overlooking the differences between the nature of their respective arrangements with India. 

With this, one hopes that this conversation arouses interest in scholars in J&K and India on some of the questions raised and provokes questions that remain to be asked.