Sample Copy. Not For Distribution. · 2017. 4. 11. · 6Jagmohan, My Frozen Turbulence in Kashmir, Allied publishers new Delhi,7th edition 2006, p.41. 7Id at p. 42-43. Sample Copy

Sample Copy. Not For Distribution.

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Special Status of

Jammu & Kashmir


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iii

Special Status of

Jammu & Kashmir Article 370: An In depth Analysis

Khurshid Ahmad Bhat

EDUCREATION PUBLISHING (Since 2011)

www.educreation.in


iv


v

Dedicated to my Grandfather

MOHHAMMAD SULTAN TANTRAY


vi


vii

TABLE OF CONTENT

S. No. Content Page

Abbreviations and Acronyms xi

Table of Cases xiii

Introduction

Scope and object of the study Hypothesis Methodology Plan of study

1

1. KASHMIR: a historical retrospect. 3

2. Article 370 of the Constitution of India:

Development, Nature and Scope

20

Framing of Article 370 and the chronology of events which lead to it.

20

Lapse of Paramountcy and Treaty of Amritsar 1846

30

Position of Indian States after the lapse of Paramountcy; with special reference

to Kashmir Framing of Article 370

35

Nature of Article 370; whether temporary or permanent feature of

Constitution of India

45

Analysis of the provisions: 52

Law-making power of the Parliament of India in relation to State of Jammu and

Kashmir

55

The manner in which the provisions of the Constitution of India Apply may

apply to State of Jammu and Kashmir

57

3. Constitution (Application to Jammu and

Kashmir) Orders;

67

Scope of orders 70


viii

Two phases of „Constitution Orders‟: before and after dissolution of the

Constituent Assembly of the State.

73

Orders issued before dissolution of the Constituent Assembly of the State:

74

Orders issued after the dissolution of the Constituent Assembly

94

4. Change in the designation of the

Headship of the State

99

Office of the Sadar-i-Riyasat 99

Constitutional validity and Impact of the Sixth (Constitution of Jammu and

Kashmir) Amendment Act, 1965

109

Sixth Amendment and „Basic Structures‟ theory:

111

Mohd. Maqbool Damnoo v. State Of Jammu and Kashmir: An appraisal.

115

5. Article 370 and Extension of Articles 249

and 356:

122

Article 249 123

Constitutional validity 125

Article 356 130

Article 356 in relation to state of Jammu and Kashmir

136

6. Conclusion 143

7. Bibliography 152

BOOKS 152

ARTICLES 155

RESEARCH PAPERS & REPORTS 156

WEBSITES 157

8. Appendix I: Instrument of Accession 158

9. APPENDIX II: Constituent Assembly

Debates on Article 370.

164


ix

10. APPENDIX III: Interim Report of the basic

Principles Committee, 1952

181

11. APPENDIX IV: Sheikh Mohammad

Abdullah's Statement to the Constituent

Assembly on Delhi Agreement

186

12. APPENDIX V: Report of the Basic

Principles Committee, 1954

200


x


xi

ABBREVIATIONS AND ACRONYMS

A.I.R ALL INDIA REPORTER

All .E.R ALL ENGLAND REPORTER

Anr. Another

Art. Article

B.C Before Christ

C.O CONSTITUTION application

ORDER

CAD. Constituent Assembly Debates

CILQ CENTRAL INDIAN LAW

QUARTERLY

Co. Company

Del DELHI

EJCL ELECTRONIC JOURNAL of

COMPARATIVE LAW

exp. Explanation

Guj GUJARAT

J&K JAMMU & KASHMIR

Ltd. Limited

Para. Paragraph

Pvt. Private

SC SUPREME COURT

SCC SUPREME COURT CASES

SCR SUPREME COURT REPORTER

Sec. Section

Sgr. Srinagar

Supl. Supplementary

Svt. Samvat era

Vol. Volume

w.e.f. With effect from


xii


xiii

TABLE OF CASES

1. Aswini Kumar Ghosh And Another v Arabinda Bose And Another AIR 1952 369 at 376

2. Gajapathi Narayan Deov State of Orissa A.I.R 1965 S.C 1017

3. Duff Development Co. Ltd. v Kelantan Government, 1924 AC 797

4. Keshavnanda Bharti v State of Kerala AIR 1973 SC 1461

5. Kihoto Hollohan v Zachillhu and Others,1992 SCC Supl. (2) 651

6. M. Nagaraj v Union Of India AIR 2007 SC 71

7. Mohd. Maqbool Damnoo v State of Jammu And Kashmir 1972 AIR963 AIR 1972 SC, 963

8. Perm Nath Kaul v The State of Jammu & Kashmir 1959 AIR 749; 1959 SCR Supl. (2) 270

9. Puranlal Lakhanpal v The President of India And Others AIR 1961SC 1519

10. Sayec v Ameer Ruler Sadiq Mohammad Abbari Bhawalpur (1952)1 All ER 326

11. Vora Fiddali Badruddin v The State of Bombay AIR 1961 Guj. 151


xiv


Special Status of Jammu & Kashmir

1

INTRODUCTION ______________________________________________________

The State of Jammu and Kashmir is mentioned as 15th

State in „first schedule‟ of the Constitution of India. In

contrast to other states of union of India the State of

Jammu and Kashmir enjoys a different status in as much

as it has got a Constitution of its own. Part VI of the

Constitution of India dealing with the „States‟ does not

extend to State of Jammu and Kashmir. The power of

union Parliament to make laws for the State of Jammu

and Kashmir is limited in theory and is governed by the

provisions of Article 370 of the Constitution of India.

Article 370 also governs the Constitutional relations of

State of J&K with Union of India. In fact it is the only

provision of Constitution of India which applies to state

of Jammu and Kashmir by its own force.

With the advent of time many other provisions of

Constitution of India have been extended to state of

Jammu and Kashmir by way of Constitution (Application

to Jammu and Kashmir) Orders(Presidential Application

Orders) envisaged within the Article 370. These

Presidential Application Orders, issued from time to

time, have almost blurred the difference between State of

Jammu and Kashmir and other States in context of

Constitutional relations with Union of India. The present


Khurshid Ahmad Bhat

2

study examines the Constitutional validity of this

transition. The emphasis has been given to analysis of

the provisions of Article 370, Presidential Application

orders, the extension of Article 249 and Article 356 of

the Constitution of India to State of Jammu and Kashmir,

and the Sixth amendment of Constitution of Jammu and

Kashmir wherein the office of „Sadar-i-Riyasat‟ was

abolished in favour of the office of the Governor.

*****



3

KASHMIR:

Ahistorical Retrospect.

______________________________________________

________

“Kashmir can claim the distinction of being the only

region of India which possesses an uninterrupted series

of written records of its history, reaching back beyond

the period of the Muhammadan conquest and deserving

the name of real chronicles. In other parts of India the

historical student is obliged to reconstruct the general

outlines of the country's history with the help of the

scanty and frequently uncertain data.”

.........from Walter Lawrence ‘Valley of Kashmir’ at

179

The State of J&K has an area of 84471 sq. miles with

only two plains in this vast area, the Valley of Kashmir &

the Jammu plains1. A vast, literally barren table land in

the form of Ladakh forms a formidable part of the State.

1 Abdul Majid Mattu, Kashmir Issue- a historical perspective,M/S Ali

Mohammad & Sons: Srinagar, 2002, p. 1.

1


Khurshid Ahmad Bhat

4

The Valley of Kashmir is situated in western Himalayas

at an average height of 6000 feet above the sea level2. It

is surrounded by an unbroken ring of high mountains.

The natural boundaries of the Valley closely agree with

its frontiers3.Except for past 500 years, Kashmir has been

an independent kingdom seldom under the foreign

subjugation. The State of Jammu and Kashmir as it stood

on 15 august 1947, dates back only to the Dogra rule,

before which Kashmir has been a separate Kingdom or a

province of a Kingdom. From the known accounts of

history it transpires that Valley of Kashmir was ruled by

monarchs, mostly native in origin. The first known king

of Kashmir is said to be Gonanda4. The Hindu kings

ruled over the Kashmir for over 4000 years during which

21 dynasties came to power one after the other. 5 It was

in the 6th century A.D that a tyrannical Hun General,

Mirhira–kula, came to occupy Kashmir‟s throne. He is

known to be very cruel and remembered for his

oppression till date. The oppression of Huns, who ruled

Kashmir for some time resulted in rebellion and local

rulers‟ soon regained power6 and second Gonnanda

dynasty came into being7, and restored the rule of local

Hindu kings over Kashmir. King Lalitaditya

2Mohibbul Hassan, Kashmir under the sultans‟ Gulshan Publishers Srinagar,

2002, p. 26. 3Id.at p. 28.

4 Walter Lawrence,Valley of Kashmir,H. Frowde, 1895, p. 18.

5Supra1 at p. 4.

6Jagmohan, My Frozen Turbulence in Kashmir, Allied publishers new Delhi,7

th

edition 2006, p.41. 7Id at p. 42-43.



5

(Mukhtapeda) is said to be one of the ablest rulers of the

Hindu period. He belonged to the Karkota dynasty. He is

said to have restored peace & normal conditions in

Kashmir, which was in a disorderly condition when he

ascended to the throne. He established a strong

Government and started on a wide conquest of other

countries8.Lalitaditya was not however infallible, “in a

fit of drunken madness he ordered Pravarasena's

beautiful city to be set on fire and that he laughed as he

watched the flames”9. The king Lalitaditya was followed

by many able rulers down the line like Avantivarman

(AD-855-883). Avantivarman‟s time witnessed stability

and prosperity in the Valley but his successor

Samkaravarman disturbed the peace & prosperity. He is

said to have imposed heavy taxes, levies & resorted to

forced Labour, „Beggar‟10

.

After Samkaravarman Kashmir was ruled by weak

kings. After the death of Jayasimha in 1155 A.D, the

process of decline was more intensified and the next 200

years saw only weak and selfish kings who showed no

will to set the house in order11

. During this period

Kashmir was under the attack from outside. The Sultan

of Ghazni skirted Kashmir in first quarter of 11th

century, but his plans were thwarted by the harsh

winter12

. In 13th

century A.D Mongol‟s attacked Kashmir

8Supra 1 at p. 4.

9 Supra 4 at p. 187.

10Supra 6 at p. 46.

11Supra 6 at p. 48.

12Supra 2 at p. 44-48.


Khurshid Ahmad Bhat

6

but the raids affected only the outer hills of Kashmir. A

real and fatal blow however, was struck to Hindu

kingdom of Kashmir by the invasion of Dulacha(Zulju)

in 1320 A.D. The attack of Dulacha was death blow to

the Hindu rule over Kashmir. The Mongols devastated

the Valley for eight months and it is said that the

inhabitants of the Valley fled to mountains to escape

from massacre. The Mongols left the Valley with no

organised Government in place13

and a State of anarchy

prevailed. Rinchana, a prince from Ladakh, whose full

name was Lha-chen–cgyal-bu-rin-chen, seized the throne

of Kashmir and under the influence of SayyidSharafu-din

(Bulbul Shah) converted to Islam14

. Rinchana‟s (Sadru‟d-

Din) conversion to Islam marked the beginning of

Muslim rule in Kashmir which was to last for next 500

years. After Rinchana, Kashmir came under the rule of

famous Shah-Miri dynasty.

From 1310 to 1819 A.D Kashmir came under Muslim

rule. Between the years 1310 and 1586 A.D it was ruled

by local Muslim kings. Sultan Zainu‟l-„Abidin(1417-70),

whose real name was Shahi Khan15

, is said to be the most

notable ruler of the early Muslim period16

.. Zainu‟l-

„Abidin popularly known as Budshah (The great king)

ruled Kashmir for about fifty-two years17

. His reign was a

13

Supra 2 at p. 54. 14

Ibid. 15

Mohammad-du-din Fouk; translated by R.K Bharti,A Completer History of

Kashmir,Gulshan Books Srinagar 2009, p. 250. 16

Supra1at p. 5. 17

Supra 4 at p. 191.



7

reign of prosperity in art, culture, architecture and

education. He possessed a deeply religious nature, yet

tolerant. No other Kashmiri sultan did so much to

promote the welfare of his subjects as Zainu‟l-„Abidin18

.

His predecessor Sultan Sikander had shown religious

intolerance. During that period a large number of

Kashmiri Pundits left the Valley due to oppression of

Sikander. Sikander was brave and cultured, but all his

good qualities were warped by his gloomy

fanaticism19

.Under Sultan Zainu‟l-„Abidin the Pundit

community was treated with reverence. About Zainu‟l-

„Abidin‟s rule Jagmohan quotes20

“.History can give few

examples where the policy of the father was so

completely reversed by the son, where Sikander

destroyed- Zainu‟l-„Abidin restored, where the former

banished the latter recalled”. After Zainu‟l-„Abidin a line

of local Sultansfollowed, who were generally weak and

were plagued by internal rivalry. The Mughal emperor

Akbar taking advantage of Kashmir‟s internal instability

invaded Kashmir in 1586 A.D, imprisoning the last

native ruler of Kashmir, Yousuf Shah Chak. This sealed

the fate of Kashmir and at the same time catalysed a

chain of rebellions one after the other where people

wanted to break free from the foreign dominance..

Mughals were met with rebellion from various quarters.

The main resistance came from Yusuf Chak‟s son Yaqoob

18

Supra 2 at p. 126. 19

Supra 4 at p. 190. 20

Supra 6 at p. 52.


Khurshid Ahmad Bhat

8

Chak and another Shams Chak, both of them launched

severe attack on Mughal force and initially inflicted

crushing defeat on them. Mughals were compelled to

restrict themselves beyond fortifications of the city; the

Mughal Army was subjected to a relentless pressure by

the Kashmiris21

. But with the support of a strong army in

1589 Akbar finally invaded Kashmir22

.

The Mughal period, if the bad times of one or two

cruel Subahs be excluded, must have possessed many

elements of happiness for the people23

.Few Mughals

towards the fade end of their rule ruled Kashmir with an

iron hand and followed partial policies. They denied the

entry of any Kashmiri into army. They encouraged the

use of long cloak (Pheran) to distinctively identify a

Kashmiri.

From Mughals Kashmir passed into the hands of

Afghansin1715 A.D, when Ahmad shah Durani invaded

and conquered it. The Afghan rule was one of tyranny

and oppression. Lawrence remarks24

“When however, we

pass from the Mughal period to the period of the Shahani

Durani, we pass to a time of brutal tyranny”. The

Afghans crossed all boundaries of civilisation. They

unleashed a reign of religious persecution, devastation

and repine. “ Rude was the shock that the Kashmiri‟s got

when they witnessed the first acts of barbarity at the

21

P.N.K Bamzai,Culture and Political history of Kashmir, M D Publications

PVT. LTD New Delhi 1994, VOL II & III, p. 394. 22

Id at p. 395. 23

Supra 4 at p. 196. 24

Supra 4 at p. 197.



9

hands of their new masters. Abdullah Khan Ishk Aqasi let

lose a reign of terror as soon as he entered the Valley…

His soldiers set themselves to amassing riches by foulest

means…red hot iron bars were applied to the body of a

rich Muslim noble man, Jaleel… life became one long

night of gloom and misery”.25

During the period of sixty

seven years of Afghan rule Kashmir saw twenty nine

„Subedars‟who ruled Kashmir with iron hands. One of

the cruellest among the Afghan governors was Haji

Karim Dad Khan. He and his son Azad were nothing

short of a Scourge on the people of Kashmir.26

The Afghans were also met with rebellion, for

example one Sukhjeevanram tried to challenge the

authority of Afghans and rose in rebellion but had to lose

his life in process. Haji karim dad khan destroyed whole

Kant family for intriguing against him with Raja

Ranjitdev, the ruler of Jammu.27

In 1819 A.D, the Sikhs from Punjab wrested the

Valley from Afghan Governor Jabar khan28

, Kashmir

thus passed into the hands of new masters and was

subjected to yet another period of misrule and

tyranny29

.“The Sikhs were no less than Afghans and they

began to plunder the country”30

. “The Sikhs looked upon

25

Supra 21 at p. 435. 26

Id at p. 454. 27

Supra 15 at p. 484-485. 28

Id at p. 515. 29

Supra note 1 at p. 6. 30

Supra 15 at p. 516.


Khurshid Ahmad Bhat

10

Kashmiri‟s as little better then cattle”31

. Sikhs showed

religious intolerance, they closed Jamia Masjid of

Srinagar and congregation were banned. Moore craft

reports that murder of a native by a Sikh was punishable

with a fine from 16-20 rupees if deceased were a Hindu

and two rupees if he was a Muslim.32

Sikh rule came to

an end with the defeat of Sikhs in 1846 at the hands of

British and British handed over Kashmir to Maharaja

Gulab Singh Dogra of Jammu.

Gulab Singh, son of Kishora singh33

, was a trooper in

Sikh army. In lieu of his good services he was made Raja

of Jammu by the Lahore Darbar.34

In November 1845 a

war broke out between Sikhs and British but Gulab Singh

did not help the Sikhs, to whom he owed his kingdom.

Eventually Sikhs were defeated in the „battle of Sobrean‟

1846 A.D. They were made to cede a large territory

between river Beas and Sutlej, by virtue of „Treaty of

Lahore 1846.35

It is pertinent to mention that the treaty

was signed by Maharaja Pratap Singh Bahadur, who

was a minor and was by no means competent to negotiate

an agreement. Seven days after the conclusion of this

treaty, another treaty was concluded between Gulab

31

William moor craft, Himalayanprovinces of Hindustan and the Punjab in

Ladakh and Kashmir, in Peshawar, Kabul, Kunduz and Bokhara- 1819 to

1825,John Murry; London,1841, p. 293- 294. 32

Ibid. 33

Gulabnama , the official biography of Maharaja Gulab Singh , places him as

direct successor of Ranjit Dev but it is seriously by contemporary writers of

that time Robert Thorp. at 75 34

Supra 1 at p. 7. 35

Treaty of Lahore 1846



11

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Sample Copy. Not For Distribution. · 2017. 4. 11. · 6Jagmohan, My Frozen Turbulence in Kashmir, Allied publishers new Delhi,7th edition 2006, p.41. 7Id at p. 42-43. Sample Copy