By Anmol Singh Hundal | OPTION |

The reason behind the huge outcry following the Government of India’s amendment of Article 370 is that it took away a status from Kashmiris that they had enjoyed for seven decades. What was that status, however? What does it mean when it is said that Kashmir had — autonomy? It is relatively well known that the Governments of other States are at the mercy of the Union Government, but was that not true for Kashmir? This article will answer that question.

INTRODUCTION

Unlike most other provinces in the Indian Union, which never had any other viable option, Jammu and Kashmir acceded to India through an instrument of accession, according to the terms of which, the Union Government would get powers only in specific domains, with residual power being vested in the State Government of Jammu and Kashmir.

What followed the execution of the terms of the instrument of accession was: a) Article 370 in the Indian Constitution and b) the separate Constitution of Jammu and Kashmir. Article 370 described the parts of the Indian Constitution that would apply to Jammu and Kashmir, and the Constitution of Jammu and Kashmir filled in the gaps in describing the workings of the State Government of Jammu and Kashmir.

ARTICLE 370

Before we proceed, please take a look at the full text of Article 370.

370. (1) Notwithstanding anything in this Constitution, —

(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to —

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation. — For the purposes of this article, the Government of the State means the person for the time being recognised 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;

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

For those who are unfamiliar, the Constitution of India describes three Lists in its Seventh Schedule.

1. Union List: the areas in which the Union Government has the exclusive power to make laws.
2. State List: the areas in which the State Governments have the exclusive power to make laws.
3. Concurrent List: the areas in which both the Union and the State Government can make laws, with the laws made by the Union Government taking precedence.

The part that is of our interest in Article 370 is Clause (1) Subclause (b) which describes the domain in which the Union Government of India has the power to make laws for Jammu and Kashmir. Note the emphasis that is placed on the President (who is nothing more than a rubber stamp in the hands of the Prime Minister of India); although the decision the President makes has to be in conjunction with the Government of the State [of Jammu and Kashmir].

What is it meant by the Government of Jammu and Kashmir though? The answer is provided in Appendix 1 of the Constitution of India, which in the 2015 version of the Constitution that I have, has a copy of the “THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954”. It provides for Article(367)(4)(b) according to which the reference to the Government of Jammu and Kashmir should be construed as a reference to the “the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers”.

Now, this Governor is a person who is appointed by the President himself. The section reads “acting on the advice of his Council of Ministers”, but it does not clarify whether or not that advice is binding. So, we have two personnel, the President of India and the Governor of Jammu and Kashmir, both of whom are appointed, indirectly and directly respectively, by and work for the Union Government of India and they decide the matters for which the Union Government has the power to make laws, with the role of the Council of Ministers in this matter being ambiguous. What, if anything, prevents the exploitation of the discretion that is granted to these personnel?

THE CONSTITUTION OF JAMMU AND KASHMIR

The Constitution of Jammu and Kashmir is relatively easier to understand. Section 5 describes the “extent of the executive and the legislative powers of the State [of Jammu and Kashmir]”. The section is reproduced as follows:

5. Extent of executive and legislative power of the State:- The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India.

Since the framing of this section is in negative, it tells us that the State of Jammu and Kashmir is not vested with some inherent powers, but instead the power it has depends on the powers that the Indian Parliament has in accordance with the Constitution of India, which we have just seen is decided by the Union Government itself.

Now, it turns out that it is beyond the capacity of elected Legislative Assembly of Jammu and Kashmir to amend Section 5. We know this from Section 147 which describes the procedure for Amendment.

147. Amendment of the Constitution. — An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in the Legislative Assembly and when the Bill is passed in each House by a majority of not less than two thirds of the total membership of that House, it shall be presented to the Sadar-i-Riyasat for his assent and, upon such assent being given, to, the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that a Bill providing for the abolition of the Legislative Council may be introduced in the Legislative Assembly and passed by it by a majority of the total membership of Assembly and by a majority of not less them two-thirds of the members of the Assembly present and voting:

Provided further that no Bill or amendment seeking to make any change in-
(a) this section; or
(b) the provisions of sections 3 and 5 ; or
(c) the provisions of the Constitution of India as applicable, in relation

to the State, shall be introduced or moved in either House of the Legislature.

In other words, the people of Kashmir are stuck with this arrangement and have no democratic way out of this conundrum. In addition, it turns out that there is another mechanism in the hands of the Government of India which allows it to take control of the Government of the State of Jammu and Kashmir. Section 35 describes the relation between the Council of Ministers (which is chosen from the elected members of the State Legislative Assembly) and the Governor appointed by the Indian Government, who is also the head of the State.

35. Council of Ministers to aid and advise the Governor:-
(1) There shall be a Council of Ministers with Chief Minister at the head to aid and advise the Governor in the exercise of his functions.
(2) All functions of the Governor except those under sections 36, 38 and 92 shall be exercised by him only on the advice of the Council of Ministers.

Paragraph (2) makes room for exceptions, which are not that serious in the case of Section 36 and 38 but call the alleged democracy in question in the case of Section 92. The following is a reproduction.

92. Provisions in case of failure of constitutional machinery in the State.- (1) If at any time, the Governor is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the Governor may by Proclamation-

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by anybody or authority in the State;

(b) make such incidental and consequential provisions as appear to the *Governor to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provision of this Constitution relating to anybody or authority in the State:

Provided that nothing in this section shall authorise the Governor to assume to himself any of the powers vested in or exercisable by the High Court or to suspend in whole or in part the operation of any provision of this Constitution relating to the High Court.

(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.

(3) Any such Proclamation whether varied under subsection (2) or not, shall except where it is a Proclamation revoking a previous Proclamation, cease to operate on the expiration of six months from the date on which it was first issued.

(4) If the Government or by a Proclamation under his section assumes, to himself any, of the powers of the Legislature to make his laws, any law made by him in the exercise of that power shall, subject to, the terms there of continue to have effect until two years have elapsed from the date on which the proclamation ceases to have effect, unless sooner

(5) No Proclamation under this section shall, except where it is a Proclamation revoking a previous Proclamation, be laid before each House of the Legislature as soon as it is convened.

This provision allows the Union Government appointed Governor to assume all functions of the Government of Jammu and Kashmir as long as he personally is satisfied of the breakdown of Constitutional machinery. Again, what if anything prevents the exploitation of his discretion?

CONCLUSION

As we have seen, whatever “autonomy” Kashmir had was at the mercy of the Union Government. In that case, what is the purpose of the Modi Government’s recent amendment of Article 370. If Kashmiris never had any autonomy to begin with, what did they have to lose, and what did the Union Government have to gain?

Was it to distract the public of India from the pending financial crisis? Was it to show the Hindus that BJP is looking out for them? Or was it to simply damage the re-emerging relationship between Pakistan and the Sikhs worldwide? It is probably a combination of all of these factors.

REFERENCES

• Article 370 of the Indian Constitution: https://indiankanoon.org/doc/666119/
• The Constitution of India: https://iitk.ac.in/wc/data/coi-4March2016.pdf
• The Constitution of Jammu and Kashmir: http://jklaw.nic.in/pdf/CONSTITUTION%20.pdf

Anmol Singh Hundal is a US-based software engineer at Quora and author of The Constitution of India Simplified. The article was also published here.

* This is the opinion of the writer, organisation or publication and does not necessarily represent the views of Asia Samachar.

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