On 17 October 1949, the Constituent Assembly took up draft Article 306A. Draft Article 306A corresponded to Article 370 of the Constitution.
Shri N Gopalaswami Ayyangar
In introducing the Article, Shri N Gopalaswami Ayyangar stated that the history of the accession of the State of Jammu and Kashmir to the Dominion of India “is also well known”.
He stated that “since then, the State has had a chequered history” and “conditions are not yet normal in the State”. Upon accession, he noted, the State “is a unit of a federal State namely, the Dominion of India” and upon the integration of the Republic on 26 November 1950, Jammu and Kashmir “has to become a unit of the new Republic of India”.
Ayyangar observed that the IoA (Instrument of Accession), “will be a thing of the past in the new Constitution”. The States having integrated with the federal republic in such a manner that they do not have to accede or execute a document of accession for the purposes of becoming a unit of the republic but they would be mentioned in the Constitution itself. He stated that
“in the case of practically all States other than the State of Jammu and Kashmir, their constitutions also have been embodied in the Constitution for the whole of India”. All those other states, he noted, had agreed to integrate themselves “in that way and accept the Constitution provided”.
Maulana Hasrat Mohani
Maulana Hasrat Mohani, a member of the Constituent Assembly queried about the reason for “this discrimination…” in relation to Jammu and Kashmir. Responding to the query, Ayyangar noted that the State of Jammu and Kashmir was not ripe for the manner of integration which was provided in the Constitution for other states:
“The discrimination is due to the special conditions of Kashmir. That particular State is not yet ripe for this kind of integration. It is 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. (Cheers) At present it is not possible to achieve that integration. There are various reasons why this is not possible now. I shall refer again to this a little later.”
Making a reference to “Kashmir’s conditions” as requiring “special treatment”, he spelt out the nature of the conditions then existing in the State:
“In the first place, there has been a war going on within the limits of Jammu and Kashmir State. There was a cease-fire agreed to at the beginning of this year and that cease-fire is still on. But the conditions in the State are still unusual and abnormal. They have not settled down. It is therefore necessary that the administration of the State should be geared to these unusual conditions until, normal life is restored as in the case of the other States.
Part of the State is still in the hands of rebels and enemies. We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.”
Besides the situation in Jammu and Kashmir, Ayyangar also referred to the commitment made by the Government of India to the people of Kashmir “in certain respects” in terms of which “an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it”.
Ayyangar also stated that the Government was committed to ascertaining the will of the people “by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed”. Moreover, he stated that the will of the people “through the instrument of a constituent assembly” will determine the Constitution of the State as well as the sphere of Union jurisdiction over the State.
Ayyangar clearly spelt out that unlike other states which had accepted the Constitution framed for states in Part I of the new Constitution; where the Centre would have power to make laws on all Union and Concurrent subjects and a uniformity of relationship had been established between the States and the Centre, the situation as it obtained in Jammu and Kashmir was different :
“At present, the legislature which was known as the Praja Sabha in the State is dead. Neither that legislature nor a constituent assembly can be convened or can function until complete peace comes to prevail in that State. We have therefore to deal with the Government of the State which, as represented in its Council of Ministers, reflects the opinion of the largest political party in the State. Till a constituent assembly comes into being, only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangement that exists in the case of the other States.”
The above extract from the text of the speech of Gopalaswami Ayyangar clearly envisaged that until a Constituent Assembly for the State came into being, an interim arrangement was possible in contrast to an arrangement which could be brought in line with the constitutional arrangement for other States. Hence, he stated:
“Now, if you remember the view points that I have mentioned, it is an inevitable conclusion that, at the present moment, we could establish only an interim system. Article 306A is an attempt to establish such a system.”
Elaborating on some of the clauses of draft Article 306, Ayyangar observed:
“The Second portion of this article relates to the legislative authority of Parliament over the Jammu and Kashmir State. This is governed primarily by the Instrument of Accession. Broadly speaking, that legislative power is confined to the three subjects of defence, foreign affairs and communications, but as a matter of fact these broad categories include a number of items which are listed in the Instrument of Accession.
I believe they number some twenty to twenty-five. Now, these items have undergone a change in description, in numbering, in arrangement, as amongst themselves, in List I and List Ill of the new Constitution. It is therefore necessary that the items mentioned in the Instrument of Accession should be brought into line with the changed designations of entries in Lists I and Ill of the new Constitution.
So, clause (1) (b) of article 306A says that this listing of the items as per the terms of the new Constitution should be done by the President in consultation with the Government of the State. Clause (b)(ii) refers to possible additions to the List in the Instrument of Accession, and these additions could be made according to the provisions of this article with the concurrence of the Government of the State.
The idea is that even before the Constituent Assembly meets, it may be necessary in the interests of both the Centre and the State that certain items which are not included in the Instrument of Accession would be appropriately added to the List in that Instrument so that administration, legislation and executive action might be furthered, and as this may happen before the Constituent Assembly meets, the only authority from whom we can get consent for the addition is the Government of the State. That is provided for.”
He also adverted to the explanation to the Article. Ayyangar clarified that Article 1 of the Constitution “will automatically apply” to the State of Jammu and Kashmir which was one of the States mentioned in Part III.
While adverting to several clauses which provide for the concurrence of the State of Jammu and Kashmir for the application of the provisions of the Constitution, Ayyangar noted:
“Now, these relate particularly to matters which are not mentioned in the Instrument of Accession, and it is one of our commitments to the people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the State for the purpose of framing its Constitution. In other words, what we are committed to is that these additions are matters for the determination of the Constituent Assembly of the State.
Now, you will recall that in some of the clauses of this article we have provided for the concurrence of the Government of the State. The Government of the State feel that in view of the commitments already entered into between the State and the Centre, they cannot be regarded as final authorities for the giving of this concurrence, though they are prepared to give it in the interim periods but if they do give this concurrence, this clause provides that that concurrence should be placed before the Constituent Assembly when it meets and the Constituent Assembly may take whatever decisions it likes on those matters.”
Ayyangar clarified the scope of the last clause of draft Article 306A and observed: “The last clause refers to what may happen later on. We have said article 211A will not apply to the Jammu and Kashmir State. But that cannot be a permanent feature of the Constitution of the State, and hope it will not be.
So the provision is made 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.
But before he issues any order of that kind the recommendation of the Constituent Assembly will be a condition precedent. That explains the whole of this article.”
Summing up the effect of the Article, Ayyangar observed:
“The effect of this article 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 and the Union Legislature will get jurisdiction to enact laws on matters specified either in the Instrument of Accession or by later addition with the concurrence of the Government of the State.
And steps have to be taken for the purpose of convening a Constituent Assembly in due course which will go into the matters I have already referred to. When it has come to a decision on the different matters it will make a recommendation to the President who will either abrogate article 306A or direct that it shall apply with such modifications and exceptions as the Constituent Assembly may recommend.”
The motion on Article 306A was adopted by the Constituent Assembly. The address by Gopalaswami Ayyangar before the Constituent Assembly illuminates several facets which weighed with the framers in preparing draft Article 306A.
First, the address indicates that following the execution of the IoA, Jammu and Kashmir had become a part of India and would continue to be a part of the territory of the nation and a unit of the future federal republic; and
Second, the process of integrating other States in the Union was complete but the State of Jammu and Kashmir was not yet ripe for the kind of integration which was envisaged for the rest of the states due to the following circumstances:
a. A war was going on within the limits of the State and while a ceasefire had been agreed to, the conditions were abnormal since a part of the State was still in the hands of rebels and enemies;
b. The Dominion was “entangled with the United Nations”;
c. Neither the legislature nor the Constituent Assembly of the State could be established;
d. Pending the conclusion of this exercise, draft Article 306A postulated consultation with the State Government on matters which fell within the ambit of the Dominion under the IoA and concurrence on other matters; and
e. After the Constituent Assembly of the State met and took a decision on the Constitution for the State and the range of federal jurisdiction over the State, the President may, on the recommendation of that Constituent Assembly, issue an order that Article 306A would either cease to operate or operate subject to exceptions and modifications.
Reference
Re: article 370 of the constitution, 2023