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Special Status of
Jammu & Kashmir
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Special Status of
Jammu & Kashmir Article 370: An In depth Analysis
Khurshid Ahmad Bhat
EDUCREATION PUBLISHING (Since 2011)
www.educreation.in
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Dedicated to my Grandfather
MOHHAMMAD SULTAN TANTRAY
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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
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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
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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
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x
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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
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xii
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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
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xiv
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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
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Khurshid Ahmad Bhat
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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.
*****
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Special Status of Jammu & Kashmir
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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
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Khurshid Ahmad Bhat
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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.
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Special Status of Jammu & Kashmir
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(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.
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Khurshid Ahmad Bhat
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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.
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Special Status of Jammu & Kashmir
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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.
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Khurshid Ahmad Bhat
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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.
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Special Status of Jammu & Kashmir
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.
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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
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Special Status of Jammu & Kashmir
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