O P I N I O N S

EDITORIALS

A well-deserved rebuke
Chief Justice Lodha gives Modi govt the right message
Chief Justice of India R.M. Lodha should be commended for standing up to the executive, asserting that the independence of the judiciary is non-negotiable. The people in general and the executive in particular needed to be given this message after the Modi government's mishandling of the aborted appointment of Gopal Subramanium as a judge of the Supreme Court. If the government had reservations about former Solicitor General Subramanium's elevation, these should have been placed in public domain with back-up evidence. Instead, motivated reports were planted in the media, raising doubts about Subramanium's suitability for the post. The eminent lawyer, who could have become India's Chief Justice in due course, withdrew in disgust his consent to be a judge.

• Thought for the Day

On this day...100 years ago

Lahore, Friday, July 3, 1914
Adulteration of edible oils
IT is a subject of general complaint that ghee and edible oils are sold in the Indian bazaars in an adulterated form and there is no law to prevent and punish such frauds. But the most curious thing is the opposition or the indifference of some of the medical men whose opinion stands in the way of reform. At a recent discussion of the subject at the Bombay Corporation mention was made of the difference of opinion among doctors. Some of them did not consider that the mineral oils with which ghee and edible oils were mixed had any injurious effect on the human system. A correspondent points out how this opinion is quite wrong.

ARTICLE

Dealing with Pakistani Taliban
Government, military differences surface
G Parthasarathy
When Nawaz Sharif was first elected to power in 1991 one expected that, unlike Benazir Bhutto, he would have a cosy relationship with the Army establishment. He had, after all, been brought into politics and patronised by Gen Zia-ul-Haq. He was voted to power as part of an Islamist alliance put together and funded by Gen Aslam Beg and the ISI chief, Lieut-Gen Asad Durrani. After having an uneasy relationship with his first Army Chief, Gen Asif Nawaz, Sharif was unceremoniously thrown out of office by the succeeding Army Chief, Waheed Kakkar. In his second term, Sharif forced his first Army Chief, Gen Jehangir Karamat, to quit for suggesting the constitution of a National Security Council. He was then deposed by General Musharraf following differences over who should take the responsibility for the Kargil fiasco.

MIDDLE

Begumpura: A city without fear
Kamal Garewal
The man walks with a shuffle, an old injury perhaps or a congenital deformity. Years ago he had a shock of black hair. Now his hair is salt and pepper, and so is the stubble on his chin. I met him on the street after 23 years, and recognised him immediately. He seemed happy to see me and mumbled a greeting. My appearance had changed, the thick black beard was now completely grey, and the slim physique had given way to a pot belly. The man's appearance did not seem to have changed, the same bedraggled kurta pajamas, the same hobbling gait and the same handicap. He is deaf and dumb, our itinerant cobbler and shoe-shiner. He works in kothis in the morning and by the afternoon is seen settled under a tree in the sector market. He has done this for at least 25 years. I was glad that he was still around, undefeated by life’s vagaries.

OPED — SECURITY

The Tribune National Security Forum
In the second in a two-part series, a former Chief Justice of India studies how Article 370 came about and why its ‘temporary’ nature does not mean it can be abrogated, modified or replaced unilaterally.

Enactment and scope of Article 370
Adarsh Sein Anand
With the accession of the State of Jammu and Kashmir to India, jurisdiction in matters of external affairs, defence and communication was transferred to the Government of India and Union Parliament was given power to make laws for the State for the purposes of those three matters only. The Union Parliament had no jurisdiction in any other matter. Sovereignty, insofar as the internal administration of the state was concerned, remained with the ruler.

EDITORIALS

A well-deserved rebuke
Chief Justice Lodha gives Modi govt the right message

Chief Justice of India R.M. Lodha should be commended for standing up to the executive, asserting that the independence of the judiciary is non-negotiable. The people in general and the executive in particular needed to be given this message after the Modi government's mishandling of the aborted appointment of Gopal Subramanium as a judge of the Supreme Court. If the government had reservations about former Solicitor General Subramanium's elevation, these should have been placed in public domain with back-up evidence. Instead, motivated reports were planted in the media, raising doubts about Subramanium's suitability for the post. The eminent lawyer, who could have become India's Chief Justice in due course, withdrew in disgust his consent to be a judge.

Subramanium has his own reasons — which should be respected — for not starting his innings at the Supreme Court with a controversy. But by withdrawing his candidature, and acting in haste, he has helped the government achieve its objective of sidelining inconvenient persons. More than ever before the judiciary now needs independent-minded judges like him. His role as amicus curiae in the Sohrabuddin case, which put Gujarat encounters under the Supreme Court watch, has come in the way of his career.

Chief Justice Lodha's displeasure at the executive's unilateral segregation of Subramanium's case from the three others will be shared by all right-thinking people. The President of India swiftly cleared the three appointments, apparently without asking for or assessing the reasons for the withholding of the fourth name. Whatever the flaws of the present system of judges appointing judges in a non-transparent manner may be, it is still prevalent and should be respected. The executive on its own cannot veto a collegium recommendation without assigning valid reasons. The UPA tried to replace the collegium system with a broad-based selection process but could not get the relevant Bill through. The BJP manifesto talks of a judicial commission for top-level appointments. The controversy leaves the Modi government with a dented image and the public on alert for judicial freedom. In Chief Justice Lodha the nation has a strong guardian.

Misguided missiles
Ministers get away with loose talk against women

The rising graph of molestation and rape cases is a result of a growing culture that justifies the robbing of a woman's freedom and dignity. And our elected members of Parliament and state legislatures promote this culture by shooting their mouths off. Every time such irresponsible attacks are made, it leads to a public outcry and the shooters of missiles of misogyny are made to apologise. But no lessons are learnt. Joining this misadventure, an MP from the TMC, Tapas Pal, went on to declare that he would let loose his boys in the homes of CPM members to commit rape, to teach them a lesson! Instead of expelling a hooligan for voicing such barbaric ideas, TMC leader Mamata Banerjee, reacting to public ire, retorted: "Should I kill him?"

These political figures will think twice before uttering a single word hurting the sensibilities of any religious or caste-based community. A backlash from the community would mean disturbing the power equations. But letting their tongues loose against women's dignity doesn't cost them even reputation. Or, so they think. Their ilk should know; political parties drop such liabilities when they no more suit their scheme of things. Remember Pramod Muthalik (of the Sri Ram Sene) who was behind the assault on women at a pub in Mangalore in 2009?

When the BJP admitted Muthalik to its Karnataka unit, Manohar Parrikar, Chief Minister of Goa, was the first one to object. Muthalik was forced to quit within hours. So the PWD Minister of Goa, Sudin Dhavalikar's cheap popularity seeking declarations of banning bikinis and miniskirts and pubs in Goa would lead to nothing except promoting the foot-in-the-mouth disease among politicians. Women in India don't seek ministerial deliberations on their dress code. These public representatives would do better by concentrating their energies on more pressing issues like women's literacy, healthcare and law and order issues rather than ideating on 'culturally' suitable modest beach-wear for them and setting yet another regressive guideline for the so-called morality.

Thought for the Day

If one does not know to which port one is sailing, no wind is favorable.— Lucius Annaeus Seneca

On this day...100 years ago

Lahore, Friday, July 3, 1914

Adulteration of edible oils

IT is a subject of general complaint that ghee and edible oils are sold in the Indian bazaars in an adulterated form and there is no law to prevent and punish such frauds. But the most curious thing is the opposition or the indifference of some of the medical men whose opinion stands in the way of reform. At a recent discussion of the subject at the Bombay Corporation mention was made of the difference of opinion among doctors. Some of them did not consider that the mineral oils with which ghee and edible oils were mixed had any injurious effect on the human system. A correspondent points out how this opinion is quite wrong. He writes: "Mineral oils differ considerably from the fatty oils with which they are adulterated. While the latter is a saponifable matter, serving the purpose of strong reserve energy in the human body, the former takes no active part in the system. Nearly ninety per cent of the total energy developed in the human body originates in oxidization of fats. Mineral oil is not a food in the real sense of the word as it contains neither proteins, carbohydrates or fats, and the human system would be considerably better off without it."

Convict population in the Punjab

DURING the year 1913, there were in all 18,436 convicts in the Punjab jails, of whom 18,046 were males and 390 females. Of these 298 were literate and the rest illiterate. There was a small number of juvenile convicts, viz., 88 boys and 2 girls, but 273 men and 4 women were over 60 years of age, classified according to religion, there were 79 Christians, 12,262 Mahomedans, 6,095 Hindus and Sikhs. It is noteworthy that Mahomedan convicts are twice as many as Hindus and Sikhs, though their respective populations are nearly equal.

ARTICLE

Dealing with Pakistani Taliban
Government, military differences surface
G Parthasarathy

When Nawaz Sharif was first elected to power in 1991 one expected that, unlike Benazir Bhutto, he would have a cosy relationship with the Army establishment. He had, after all, been brought into politics and patronised by Gen Zia-ul-Haq. He was voted to power as part of an Islamist alliance put together and funded by Gen Aslam Beg and the ISI chief, Lieut-Gen Asad Durrani. After having an uneasy relationship with his first Army Chief, Gen Asif Nawaz, Sharif was unceremoniously thrown out of office by the succeeding Army Chief, Waheed Kakkar. In his second term, Sharif forced his first Army Chief, Gen Jehangir Karamat, to quit for suggesting the constitution of a National Security Council. He was then deposed by General Musharraf following differences over who should take the responsibility for the Kargil fiasco.

Nawaz Sharif now has an uneasy and indeed hostile relationship with his present Army Chief, Gen Raheel Sharif. The attack on the Indian Consulate in Herat was executed just on the eve of the arrival of Nawaz Sharif in New Delhi. It drew international attention as having been executed by Lashkar-e-Taiba with the backing of the ISI. It is no secret that for two generations Hafeez Mohammed Saeed has been patronised by the Sharif family. The attack was a message to the world, to India and to Mr. Sharif himself that even Hafez Saeed was a creature of the Army establishment. It is self-evident that the sponsorship of terrorism in India and in Afghanistan is managed by Raheel Sharif and not Nawaz Sharif.

Sharif’s present differences with the military have arisen earlier than in his previous two terms. Within a year these differences escalated over the house arrest and trial of General Musharraf on charges, including his suspension of the Constitution. When the Sind High Court cleared the way for Musharraf to leave the country, Sharif immediately responded by an appeal to the Supreme Court. Any conviction of Musharraf would not only reduce the stature of the Army nationally and internationally, but also serve as a deterrent to future coups -- something the Army would just not tolerate. To add insult to injury, Nawaz Sharif backed the influential Jang group in its tirade against Army excesses in Balochistan together with a campaign against the ISI for allegedly attempting to kill its star TV anchor Hamid Mir. The Army responded with a programme of vicious intimidation of the media.

Nawaz Sharif and the Army also have serious differences on measures to deal with Tehriq e Taliban Pakistan (TTP). With political and parliamentary backing, Sharif decided to commence dialogue with the TTP and a ceasefire was put in place. The Army was unhappy as it sought to wreak revenge for the “cardinal sin” of the TTP in killing a Major General. While negotiations between the TTP and the government interlocutors were under way, the Army engineered an escalation of tensions with the TTP, compelling Nawaz Sharif to end the negotiations. Even before Sharif could make a formal announcement, the Army proceeded with a massive assault in North Waziristan, using air power (F 16 fighters), artillery and mechanised infantry. It is evident that the targets of the military wrath are exclusively the TTP and their Uzbek and Uighur allies. Predictably, the Haqqani network has been spared as they remain allies of the Pakistani military to destabilise and overthrow the government in Kabul.

Around 500,000 hapless Pashtuns have fled to the neighbouring tribal areas in the wake of the military offensive. To add insult to the injury, these Pashtuns have been denied entry into the Punjab and Sind provinces, where they could find refuge and employment. More than 70,000 Pashtuns have also fled to the neighbouring Khost and Paktia provinces of Afghanistan. Sharif sent Pashtun leader Mehmood Khan Achakzai to meet President Karzai and discuss the border situation amidst allegations by the Afghan government of violations of its borders by the Pakistan Army. In a letter to Nawaz Sharif, President Karzai has reportedly insisted that he would cooperate with Pakistan’s ongoing military operations only if Pakistan targets all terrorists without discrimination, ends shelling of Afghan territory and joins him in coordinating anti-terrorism efforts with “important regional nations like India and China”.

The impact of the army's onslaught in North Waziristan has been described vividly by Rustam Shah Mohamand, a Pashtun, who was earlier Pakistan's Ambassador to Kabul and Interior (Home) Secretary. Rustam Shah noted that instead of attacking positions held by the TTP, the Army "ordered all towns — densely populated settlements — to be vacated, forcing hundreds of thousands of civilians to move out, not knowing where they would be headed. The order was preceded by relentless air bombardment and a non-stop curfew on towns and villages. The civilians who perished in the bombardment by fighter jets had to be buried after funeral prayers". Mohamand's comments portray only part of the misery and suffering of hundreds of thousands of hapless Pashtun tribals, women and small children, fleeing to safe havens across the tribal areas.

Nawaz Sharif's leadership is also being challenged, at the instigation of the Army, by rivals like Imran Khan, Shujaat Hussain, Pervaiz Elahi and the dubious cleric, Tahirul Qadri. In his second year, the hapless Nawaz Sharif already appears to be in no position to check the Army's links with terrorist groups operating against India and Afghanistan. He would, however, retain some authority to promote economic, trade and energy cooperation with India. President Karzai has clearly spelt out in writing what he expects Pakistan should do on terrorism and dialogue with Afghanistan. India should do likewise, and propose hosting a trilateral breakfast meeting of the leaders of India, Afghanistan and Pakistan at the next SAARC Summit. To get Raheel Sharif involved, India could propose subsequent meetings of the Army Chiefs of the three SAARC countries to discuss and finalise measures to end cross-border terrorism.

MIDDLE

Begumpura: A city without fear
Kamal Garewal

The man walks with a shuffle, an old injury perhaps or a congenital deformity. Years ago he had a shock of black hair. Now his hair is salt and pepper, and so is the stubble on his chin. I met him on the street after 23 years, and recognised him immediately. He seemed happy to see me and mumbled a greeting. My appearance had changed, the thick black beard was now completely grey, and the slim physique had given way to a pot belly. The man's appearance did not seem to have changed, the same bedraggled kurta pajamas, the same hobbling gait and the same handicap. He is deaf and dumb, our itinerant cobbler and shoe-shiner. He works in kothis in the morning and by the afternoon is seen settled under a tree in the sector market. He has done this for at least 25 years. I was glad that he was still around, undefeated by life’s vagaries.

I had returned home after wandering in the districts, the last nine years spent in official bungalows in Chandigarh. But on meeting the man I began to understand the true meaning of Begumpura. A city without fear or sadness. Bhagat Ravi Dass’ well-known hymn aptly described an ideal city: “Begumpura is the name of the town where there is no fear or hatred, where everyone can walk freely and there is no tax.”

Retirement brings one face to face with life on the street. The peons have vanished and so have the PSOs, and the chauffeur-driven luxury cars. Fending for oneself to get things fixed, I came across a plumber from Rae Bareli, an electrician from Kangra, a gardener from Sultanpur and a carpenter from Gorakhpur. Who am I to cavil against migrants to Chandigarh? My parents had migrated in June 1947 from Lahore to Mussoorie, where I took birth as a mid-night's child. I was raised in New Delhi, educated in Ajmer, Delhi and Chandigarh. I began law practice in Ludhiana, and after joining judicial service worked in Amritsar, Ferozepur, Ropar, Bathinda and Patiala. Retirement took me to Geneva and New York on a UN assignment.

Life has now brought new joys — unhurried mornings, spare time to read and write, occasional rounds of golf, frequent visits to the farm. But the great revelation is the extent to which Chandigarh is home to people from all corners of India. Not being an original resident of Chandigarh, I was earlier a nomad, now am a migrant, like so many other Chandigarians. The original villages were consumed by the Capital Project and their residents disappeared long ago. The only voice they occasionally raise is to claim compensation for lost lands. They were paid a few hundred rupees per acre in the fifties. The market value of the same land is now a few crores. Great gain for those who still possess land but the true gain for the city is that it is home to lakhs of workers from all parts of India. For them Chandigarh is Begumpura, a utopian destination. And without them the city would collapse and our lifestyles would get seriously cramped.

OPED — SECURITY

Enactment and scope of Article 370
Adarsh Sein Anand

The Jammu and Kashmir Assembly building in Srinagar. Tribune Photo: Mohd Amin War

With the accession of the State of Jammu and Kashmir to India, jurisdiction in matters of external affairs, defence and communication was transferred to the Government of India and Union Parliament was given power to make laws for the State for the purposes of those three matters only. The Union Parliament had no jurisdiction in any other matter. Sovereignty, insofar as the internal administration of the state was concerned, remained with the ruler.

This was as provided for by Clause 8 of the Instrument of Accession: "Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or save as provided by or under this Instrument, the exercise of any power, authority and right now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State."

Instrument of accession Unlike those from the other States, Kashmir’s representatives made it clear that Kashmir’s association with India would be based ‘only’ on the terms of the Instrument of Accession. The Constitution of India laid down provisions not only for the former provinces of British India but also for the other princely States as full-fledged constituents units of the Union. In the case of Kashmir, it had to make special provisions to cover that particular case. The basis of the constitutional relationship of Jammu and Kashmir with India was being changed from that created by the Instrument of Accession to the position under Article 370 of the Constitution of India. The temporary nature of Art. 370 arises merely because the power to finalise the constitutional relationship between the State and the Union of India had been specifically vested in the Jammu and Kashmir Constituent Assembly.

The internal administration of the state was even after its accession being governed by the Jammu and Kashmir Constitution Act, 1939.

At the time of their accession, it was made clear to all Indian States that their internal autonomy would be safeguarded and they would not be obliged to accept the Constitution of India. But whereas other Indian States lost their independence by supplementary instruments and by agreeing to the settlement of their constitutional position and powers by the Constituent Assembly of India, Kashmir chose to remain a unit of the Indian Federation only on the terms and conditions specified in the Instrument of Accession. The State, if it chose to assimilate its status to that of other Indian States, could do so by a supplementary instrument signed by the Sadar-i-Riyasat (the elected head of the State) on the recommendation of the State legislature. This legal position was set at rest by the Supreme Court of India in the case of Prem Nath Kaul v. the State of Jammu and Kashmir (AIR 1959 SC 749) wherein it was observed:

"We must, therefore, reject the argument that the execution of the Instrument of Accession, affected in any manner the legislative, executive and judicial power in regard to the Government of the State, which then vested in the Ruler of the State."

Again, the Supreme Court of India in the case of Rehman Shagoo v. State of Jammu and Kashmir (AIR 1960 SC 1) said: "When certain subjects were made over to the Government of India by the Instrument of Accession, the State retained its power to legislate even on those subjects so long as the State law was not repugnant to any law made by the Central Legislature."

States’ constitutions

In 1949, the Indian Constituent Assembly was coming to the end of its task. The Government of India conferred with the States, and it became obvious that the subjects of the States desired their Constitutions to form part of the Indian Constitution. A large number of Indian States had been represented in the Indian Constituent Assembly from the beginning and had taken part in the framing of the Constitution. During the drafting of the Constitution of India till 1949, the State of Jammu and Kashmir did not take any part in the debates as it had no representative in the Constituent Assembly. Since Jammu and Kashmir had acceded to India legally and factually, at the suggestion of the Government of India, the Yuvraj, in June 1949, on the advice of his Council of Ministers nominated four representatives to the Indian Constituent Assembly.

Unlike those from the other States, Kashmir's representatives made it clear that Kashmir's association with India would be based 'only' on the terms of the Instrument of Accession. "It was also made clear that, while the accession to the extent of the subjects enumerated in this Instrument, the autonomy of the State with regard to all other subjects outside the ambit of Instrument of accession should be preserved."

Under Clause (7) of the Instrument of Accession, the State did not commit itself to the acceptance of any future Constitution of India, nor fetter its discretion to enter into agreements with the Government of India under any such future Constitution. Despite the accession, the state was still to be governed by the old Constitution Act, 1939. This was because the Government of India had given an undertaking that the people of Kashmir could frame their own Constitution. (Constituent Assembly debates, Vol. X, No. 10, p. 422) The state had voluntarily surrendered three matters only to the Union of India and, therefore, the Government of India could not enlarge the sphere of its jurisdiction unilaterally.

The Constitution of India laid down provisions not only for the former provinces of British India but also for the other princely States as full-fledged constituents units of the Union. In the case of Kashmir, it had to make special provisions to cover that particular case. This was explained by Sri Gopalaswami Ayyangar, who moved the Bill for that purpose in the Indian Constituent Assembly. He said, "At present the State is a unit of a federal State, namely the Dominion of India. This Dominion is getting transferred into a Republic, which will be inaugurated on the 26th January, 1950. The Jammu & Kashmir State, therefore, has to become a unit of the new Republic of India".

During the debate Ayyangar said that the relationship of all States with the Government of India, till India became a Republic, was based on the Instrument of Accession and supplementary Instruments. But whereas in the case of other Indian States "Instruments of Accession will be a thing of the past in the new Constitution" — the States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of Accession for becoming units of the Republic — "it would not be so in the case of Kashmir", since a part of "that particular State is still in the hands of the enemies" and in the second place, "…the Government of India have committed themselves to the position that an opportunity will be given to the people of the State to decide for themselves," the nature of their constitution. (Constituent Assembly Debates Vol. X, No. 10, p 422)

Drafting of Article 370

After this clarification by Ayyangar, the question of drafting Article 370 (Art. 306-A in the Draft Constitution) was considered. "In these negotiations it was made perfectly clear by the State Government that it was for the Constituent Assembly of the State to frame the Constitution of the State and that for any provision that may be made in the Constitution of India regarding Kashmir, the basis should be the 'Instrument of Accession' and till the Constituent Assembly of the State consented to accede in any other subject to the Union, the relationship between India and the State should be limited to the subjects specified in the 'Instrument of Accession'."

The Constitution of India was soon to come into force, so it was necessary to take steps for the enforcement in Kashmir of the provisions of the Indian Constitution as applicable there. Legally, the power to issue a proclamation for this purpose vested in the Ruler. So the Yuvraj, acting on the advice of his Council of Ministers, issued a proclamation on November 25, 1949, to the following effect:

"Whereas with the inauguration of the new Constitution for the whole of India now being framed by the Constituent Assembly of India, the Government of India Act, 1935, which now governs the constitutional relationship between this State and the Dominion of India will stand repealed.”

"I now hereby declare and direct that the Constitution of India shortly to be adopted by the Constituent Assembly of India shall, insofar as it is applicable to the State of Jammu and Kashmir, govern the constitutional relationship between this State and the contemplated Union of India and shall be enforced in this State by me, my heirs and successors in accordance with the tenor of its provisions.”

"That the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other Constitutional provisions inconsistent therewith which are at present in force in this State." (White Papers on Indian States, Appendix LIV page 371)

It is obvious that the basis of the constitutional relationship of Jammu and Kashmir with India was being changed from that created by the Instrument of Accession to the position under Article 370 of the Constitution of India. This Article covered the case of Kashmir only and gave Kashmir a special status in that the provisions governing the relationship of other Part B states did not apply to it. Article 238 (Article 211 in the Draft Constitution) which governed the relationship between Union of India and other Part B States was not to apply to Jammu and Kashmir.

Exclusive to Kashmir

The Constitution of India came into force on the January 26, 1950. Article 370 was to cover the case of Kashmir alone. "In view of the special problem with which the Jammu and Kashmir Government is faced, we have made special provisions for the continuance of the State with the Union on the existing basis," declared Sardar Patel, the then Home Minister, in the Indian Constituent Assembly.

Article 370, it was explained by Sardar Patel, was a device to continue the existing relationship of the Jammu and Kashmir State with the Union of India. It has been described as a "temporary provision" in the Constitution. This expression has given rise to a lot of debate about the scope of Article 370. The temporary nature arises merely because the power to finalise the constitutional relationship between the State and the Union of India had been specifically vested in the Jammu and Kashmir Constituent Assembly. The Constitution of India clearly envisaged the convening of a Constituent Assembly for the Jammu and Kashmir State and also provided that whatever modifications, amendments or exceptions that might become necessary either to Article 370 or to any other Articles in the Constitution of India in their application to Jammu and Kashmir were subject to the decision of that Assembly.

Therefore, the 'temporary' provision does not mean that the Article is capable of being abrogated, modified or replaced unilaterally. "I would like to make it clear," declared Sheikh Abdullah in the Kashmir Constituent Assembly, "that any suggestions of altering arbitrarily the basis of our relationship with India would not only constitute a breach of the spirit and letter of the Constitution, but it may invite serious consequences for a harmonious association of our State with India." (Jammu and Kashmir Constituent Assembly Debates Vol. IV No. 1-3 dated 11th August, 1952)

Nothing irregular

Jammu and Kashmir became an integral part of India after the execution of the Instrument of Accession. Therefore, Clause (1) (c) of Article 370 provides for the application of Article 1 of the Constitution of India, which defines the territory of India. The State was shown in the Constitution as a Part B State, but the provisions of Article 238, which generally governed the relationship of Part B States with the Union of India, were not applicable to this State. This might appear extraordinary, but it is not irregular, for unlike the other Indian States, Kashmir did not accept the application of the Indian Constitution in its entirety and had not executed any further Instrument, unlike the other Indian States. The Supreme Court of India opined that:

"The effect of the application of the present article (Article 370) has to be judged in the light of its objects and its terms considered in the context of the special features of the constitutional relationship between [the] State and India. The Constitution makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself…." (Prem Nath Kaul vs. the State of Jammu and Kashmir, AIR 1959 SC 749)

According to Clause (1) (c) of Article 370, the only Articles of the Constitution of India which applied of their own force to the State were Articles 1 and 370; Clause (1) (d) provided that the other provisions of the Constitution of India applicable to the State could be determined by the President of India in consultation with the Government of the State. Exceptions and modifications could be made in the same manner and the provisions could be enlarged too. "Power to modify includes a power to enlarge or add to an existing provision," held the High Court of Kashmir in the case of Sant Singh v. State, (AIR 1959 J & K 35), where the question was whether the enlargement of the provisions by the Government of India in consultation with the Government of Jammu and Kashmir.

Therefore, the term 'temporary' has been used in Article 370 so as to minimise the difficulty in the way of the amendment of the Constitution of India, whenever the necessity arises to modify or extend the scope of other provisions of the Constitution of India.

Laws for J&K

As a matter of fact, in exercise of the powers conferred by Article 370 (i) (ii), the President of India has issued a number of Constitution (Application to Jammu and Kashmir) orders from 1950 onwards applying various other provisions of the Constitution of India and the laws enacted by Parliament to the State of Jammu and Kashmir. The first such order was made in 1950, which was superseded by the 1954 order. There have been almost 45 amendment orders to the 1954 order till date applying various other provisions of the Constitution of India to the State.

A part of the territory of Jammu and Kashmir continues be under enemy occupation. That was one of the factors debated in the Constituent Assembly of India while enacting Article 370. As I have said above, it is by virtue of this Article that many provisions of the Constitution of India have been extended to the State of Jammu and Kashmir from 1950 onwards. More provisions may be extended by the President of India in consultation with Jammu and Kashmir. That is within the scope of Article 370 of the Constitution of India and the Supreme Court of India has said so in absolute clear terms.

— The writer is a former Chief Justice of India; former Chairman, National Human Rights Commission; and former Chief Justice of the J&K High Court.