(The article was originally published in Indian Express on December 16, 2023 as a part of Dr Madhav’s column titled ‘Ram Rajya’. Views expressed are personal.)
There is an effort in some sections to insinuate that the Supreme Court Constitution Bench’s verdict on Article 370 was a compromised one and imply motives to the learned justices. But there couldn’t have been a different judgment going by the letter and spirit of the Indian Constitution.
The Court’s assertion that the Article was temporary in nature and its scope was eroded over the decades to effect full and final accession of the state into the Union of India was an accurate description of the events of the last seven decades.
Some argued that the Court’s decision was a blow to “federalism”. First, nowhere in the Indian Constitution was federalism mentioned. B R Ambedkar categorically stated in the Constituent Assembly that India would be a “union”, not a “federation”. Countries like the US, Germany, and Australia were formed on the federal principle. But the makers of the Indian Constitution envisaged a “dual polity” sans the federalism of the American or Western model.
When Home Minister Amit Shah argued in Parliament that there couldn’t be two Constitutions for one country, an anomaly perpetuated by Article 370, some wise men of the Congress Party sought to sermonise about how several countries have more than one constitution. In the US, Germany, Australia, and a few other countries with a federal polity, besides the federation, states, too, have separate constitutions.
The states in the US have constitutions of their own which grant citizens a separate citizenship. While the 14th Amendment to the Federal Constitution of the US prohibits denial of any rights to its citizens in any state, the state constitutions can show positive discrimination in favour of their own citizens in jobs and admissions in educational institutions, etc. Ambedkar was categorical that no such dual citizenship was to be allowed in the Indian Union. “The proposed Indian Constitution is a dual polity with a single citizenship. There is only one citizenship for the whole of India. It is Indian citizenship. There is no State citizenship. Every Indian has the same rights of citizenship, no matter in what State he resides,” he averred in the Constituent Assembly.
Ambedkar also explained that while in the US, the federation was created by a number of states coming together, and “the Constitutions of the Federal and the States Governments are loosely connected”, in our case, “the Constitution of the Union and of the States is a single frame from which neither can get out and within which they must work”.
Hence the federalism debate and comparison with countries with multiple constitutions are misleading, if not erroneous. Ambedkar described the Indian polity as having a “flexible federalism” then and the Supreme Court called it “asymmetric federalism” now.
I have mentioned in a previous article the opposition that Article 306 A (which became Article 370) had to endure from different sections. In fact, it was placed before the Constituent Assembly towards the fag end in October 1949, and hurriedly pushed through. The only significant intervention came from Maulana Hasrat Mohani.
Responding to Mohani’s specific question as to “why this discrimination?”, Gopalaswami Ayyangar, mover of the Article, replied that it was due to the “special conditions of Kashmir”, but quickly added that it was “the hope of everybody here that in due course even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other States”. The Constituent Assembly debates record that this statement of Ayyangar was received with “cheers” from the members.
Ayyangar also explained that “when the Constituent Assembly of the State has met and taken its decision both on the Constitution for the State and on the range of federal jurisdiction over the State, the President may, on the recommendation of that Constituent Assembly, issue an order that this article 306A shall either cease to be operative or shall be operative only subject to such exceptions and modifications as may be specified by him.”
In essence, the Article was introduced as a temporary measure that shall cease to exist along with the state’s constituent assembly. Even if we accept the latest argument of the Congress Party that Article 370 was a collective decision, it was so only to the extent of a “temporary provision”. But who is responsible for its survival for decades on, even after the Constituent Assembly had ceased to exist? It was another blunder committed by Jawahar Lal Nehru in 1952 in the form of the infamous Delhi Agreement with Sheikh Abdullah.
The Delhi Agreement had set several dangerous precedents. It used the ominous expression that “sovereignty in all matters” other than those mentioned in the Instrument of Accession “reside in the state”. This “shared sovereignty” argument was fully exploited by leaders including in their submissions before the Supreme Court. The Delhi Agreement also granted a separate citizenship to people of the state calling them “state subjects”, violating the one citizenship formula enunciated by Ambedkar. It allowed for a separate flag and constitution to the state, and a new nomenclature for the state’s leadership as Prime Minister.
It was these distortions that the Supreme Court sought to rectify by ratifying the Modi government’s action of annulling Article 370. In fact, it went one step further by foreclosing all avenues for its return at any future date.
We may rejoice over the fact that the separate constitution, citizenship, special status etc for J&K are history now. Yet, we may have to turn to the J&K Constitution for one important thing. While the First Schedule of the Indian Constitution defined Jammu and Kashmir as comprising the territory which was in the Indian state “immediately before the commencement of the Constitution of India”, the J&K Constitution, now abolished, stated more explicitly that “the territory of the State shall comprise all the territories which on the fifteenth day of August 1947, were under the sovereignty or suzerainty of the Ruler of the State”. That includes all those areas annexed by Pakistan after Independence.