Article 370 – A Perspective

SAIKAT BASU

“What Sheikh Abdullah was really gambling for and what his alliance with the Congress in effect provided, was an independent  Principality whose continued existence was guaranteed by the Indian armed forces and whose solvency was secured by the Indian treasury. There was , however, no idea of a quid pro quo from his side. He did not expect to be called to account either in respect of the internal administration of the State or the utilisation of the funds supplied to him by the Indian Government.” – Ram Chandra Kak, the former Prime Minister of Kashmir. “

1. India has a Constitution.  The Constitution proclaims  India as  a Union of States.  The Constitution of India  is not only the Constitution for India it is also the Constitution of the  States. Jammu & Kashmir however, has a separate Constitution. The First Schedule to the Constitution of India enumerates the names of the constituent States and describes their corresponding territories.   Jammu & Kashmir figures as the 15th State in the First Schedule to the Constitution of India.   The  territory of Jammu and Kashmir, according to the Constitutions of both India and Jammu & Kashmir is the  territory which immediately before the commencement of the Constitution was comprised in the Indian State of Jammu and Kashmir.  Article 3 of the Constitution of Jammu and Kashmir, 1957 unequivocally declares that the State of Jammu and Kashmir is and shall be an integral part of the Union of India. There are no disputes in law as regards the fact that Jammu and Kashmir is an integral part of the Indian Union..

The Backdrop

2. Jammu & Kahmir (the prehistorical Jambu dwipa) was a Princely State. One among the 564 other Princely States. The total area of the 564 Princely States was approximately two fifths or almost half of the total territory of the Country. The Princely States were not a part of the  British India.  The Government of India Act, 1935 for the first time established the British Paramountcy in India. Under the terms thereof a State (Princely) shall be deemed to have acceded to the Federation of His Majesty if it  had  signified his acceptance of an instrument of accession executed by the Ruler for himself, his heirs  and successors and assumes the obligation of ensuring that due effect is given within his State to the provisions of this Act so far as they are applicable therein by virtue of the Instrument of Accession. The Federal legislature by virtue of the Instrument of Accession reserved for itself the law making power in respect of the following subjects:  (a) Defence; (b) External affairs; (c) Communications and (d) Ancillary. In all other matters the States retained their sovereignty. ( Emphasis supplied)

3. On 25th May, 1946, the Cabinet Mission issued the Memorandum dated May 12, 1946, in regard to State’s treaties and paramountcy. Paragraph 5  of the memorandum read:

when a new fully self-governing or independent Government or Governments come into being in British India, His Majesty’s Government ‘s influence with these Governments will not be such as to enable them to carry out the obligations of paramountcy. Moreover, they cannot contemplate  that British troops would be retained in India for this purpose. Thus, as a logical sequence and in view of the desires expressed to them on behalf of the Indian States. His Majesty’s Government will  cease to exercise the power of paramountcy. This means that the rights of the States which flow from their relationships to the Crown will  no longer exist and that all the rights surrendered by the States to the Paramount power will return to the States. Political arrangements between the States on the one side and the British Crown and British India on the other will thus be brought to an end. The void will have to be filled either by States entering into a federal relationship with the successor Government or Governments in British India, or failing this, entering into particular political arrangements with or them. ( Emphasis supplied)

4. Partition of the country on the basis of religion was a distant possibility at that point in time. It became a reality only after the Congress rejected the cabinet mission proposal.

5. On 20th February, 1947, His Majesty’s Government made an announcement to the effect that independence would be granted to British India. Pursuant to this, His Majesty’s Government made another statement on June 3, 1947 setting out its plan for the transfer of Power ,Inter alia  it provided for the creation of two independent dominions out of the provinces comprising British India.The plan provided that the Muslim majority areas in British India  should constitute the Dominon of Pakistan and the Hindu Majority areas the Dominion of India

In this plan the position of the Princely States was dealt with in a small paragraph which read:

His Majesty’s Government wish to make it clear that the decisions announced above (about partition) relate only to British India and that their policy towards Indian States contained in the Cabinet Mission Memorandum of 12th May, 1946  remains unchanged. ( Emphasis supplied)

6. In the interregnum the Indian Independence Act, 1947 was passed.  Under Section 7 (1) (b) of this Act the suzerainty of His Majesty over the Indian States lapsed and with it lapsed all treaties and agreements in force at the date of the passing of the Act between His Majesty and the Rulers of the Indian States , all obligations of His Majesty existing at that date towards Indian States or the Rulers thereof, and all powers, rights, auithorities or jurisdiction exercisable by His Majesty existing at that date towards Indian States lapsed and with it lapsed all treaties and agreements in force at the date of passing of the Act between His Majesty and the Rulers of the Indian States, all obligations of His Majesty existing at that date towards Indian States or the Rulers thereof, and all powers, rights , authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise. The proviso to the said section , however, prescribed that , notwithstanding anything in para (b) , effect shall, as nearly as may be, continue to be given to the provisions of any such agreement as therein referred to in relation to the subjects enumerated in the proviso or other like matters until the provisions in question are denounced by the Ruler of the Indian State on the one hand or by the Dominion or Province concerned  on the other hand, or are superseded by subsequent agreements. Thus , with the lapse of British Paramountcy the State of Jammu and Kashmir , like the other Indian States, was theoretically free from the limitations imposed by the said Paramountcy subject to the provisions of proviso just mentioned. [Prem Nath -vs- State of J&K Pg 749 Para 8]

7.  It would therefore, mean that with the withdrawl of paramountcy, the princely states would become independent and the communal basis of division of India would not affect the States at all. Sovereignty would revert to the Ruler on the transfer of power and not to the people. Accession was to be under the Cabinet Mission Memorandum of May 16,  which contemplated surrender to the Central Government of only three subjects, Defence, External  Affairs and Communications. The draft explicitly provided that in no other matters was the Central Government to have any authority over the internal autonomy of the States. Jammu & Kashmir like any other State had three alternatives, (a) to assert complete Independence; (b) to accede to Pakistan; (c) or to accede to India. The power to take the decision vested in the Ruler according to the British Government’s declared policy. The State of Jammu & kashmir did not accede to either dominion by the 15th August, 1947 and so became independent. Hari Singh offered to sign a Stand still agreement  with both India and Pakistan aimed at continuing the existing relationship pending his final decision regarding the future of the State. He sent two identical telegrams to both India and Pakistan on August 12, 1947.  The Government of Pakistan executed a Stand still  agreement. For, whatever reasons no stand still  agreement was  signed between Jammu & Kashmir and India. (Emphasis supplied)

8. The question of accession was posed to the Jammu and Kashmir Government on two different occasions and under two different sets of conditions. The reaction of the Kashmir Government was the same in both cases, Viz, that it did not wish to accede, but would be willing to enter into a stand -still agreement in regard to the matters to which such agreement might be applicable. The first reference from the Government of India inviting the views of the State on the subject of accession was received late in 1946 after the Cabinet Mission had completed their consultations with the Government of India and the Indian leaders at Delhi.  At this time, the issue of partition had not arisen except as a remote contingency, and accession was envisaged only with reference to the newly to -be -created Dominion of India. In the following year, after Lord Mountbatten’s assumption of office, when decision had been taken with regard to the partition of India into two dominions, the alternatives were whether the State would accede to India or to Pakistan. As mentioned above, the State’s reply on both occasions was the same. Ramchandra Kak, the the-then Prime Minister of Jammu & Kashmir sums up the views of the State: 

” During the preceding eight years, the Indian National Congress had boosted Sheikh Abdullah . Indeed it may be said that the congress had identified itself with Sheikh Abdullah and lent its great weight of authority to his agitation against the State Government. The Congress leaders, including Pandit Nehru, Maulana Azad, Khan Abdul Gaffar khan and others paid visits to the State, participated in the deliberations and demonstrations of the National Conference. These later culminated on certain occasions in breaches of peace, which caused considerable embarrassment to the State Government and deep resentment amongst these sections of the people of the State, who had not thrown in their lot with Sheikh Abdullah. The climax came when Sheikh Abdullah was arrested in May 1946.  Telegrams were sent to the Maharaja and the Kashmir Prime Minister by top Congress leaders demanding his release. Several highly coloured and vituperative statements regarding the happenings in the State were published in the Indian press, following Sheikh  Abdullah’s arrest. The factual inaccuracy of the allegations contained in these statements was promptly and publicly pointed out by the Kashmir State Government. Then Pandit Nehru decided to pay a personal visit to the State, to arrange for the defence of Sheikh Abdullah, who was being put up for trial on charges of sedition. The Kahsmir Government had already communicated to the Government of India that , in view of the excitement prevailing in the state , it would be most undesirable for Pandit Nehru to come to Kashmir at that time, and that if he persisted , it would be the duty of the Kashmir Government to prevent his proceeding to Srinagar. “

9. Ramchandra Kak was subsequently removed by the Maharaja. On October 20,1947, a large column of several thousand tribesmen armed with ‘bren guns, machine guns, mortars and flame throwers’ attacked the frontiers of the State. The tribal invasion caused great devastation.  The raiders were now fast approaching Srinagar, the summer capital of Kashmir; the Maharaja was extremely nervous. The invaders were meanwhile pushing ahead , destroying and looting whatever came in the way. To save his  life , Maharaja Hari Singh left Srinagar on 25th October , and went to Jammu , the winter capital of Kashmir. Faced with such a serious crises, Maharaja Hari Singh at last wrote to Lord Mountbatten.

” I have to inform your Excellency that a grave emergency has arisen in my State and request the immediate assistance of your Government . As your Excellency is aware , the State of Jammu & Kashmir has not acceded to either the Dominion of India or Pakistan. Geographically my State is contiguous with both of them. Besides, my State has a common boundary with the Union of Soviet Socialist Republic and with China. In their external relations the Dominions of India and Pakistan cannot ignore this fact. I wanted to take time to decide to which Dominion I should accede or whether it is not in the best interests of both the Dominions and my State to stand independent , of course with friendly relations with both

After this paragraph followed an account of the Tribal Invasion and then His Highness wrote:

” With the conditions obtaining at present in my State and the great emergency of the situation  as it exists, I have no option but to ask for help from the Indian Dominion. Naturally, they cannot send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government.”

10. This Instrument of Accession was in no way different from that executed by the other princely states. It was unconditional , voluntary and absolute. it was not subject to any exceptions. As such it bound the State of Jammu & Kashmir and India together legally and Constitutionally. And so , regarding the legality of the accession in the judicial sense of the word there is no doubt.  The execution of the Instrument of Accession by the Ruler and its acceptance by Governor- General finally settled the issue of accession of the State of Jammu and Kashmir.

11. The execution of the Instrument of Accession by the Ruler and its acceptance by Governor- General  finally settled the issue of accession of the State of Jammu & Kashmir. After accepting the Instrument of Accession, Lord Mountbatten wrote a personal letter to Maharaja Hari Singh, in reply to his letter which also accompanied the Instrument of Accession. In his letter Lord Mountabatten wrote:

” — my Government have decided to accept the accession of Kashmir State to the Dominion of India. In consistence with their policy that in the case of any State where the issue of accession should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that, as soon as law and order have been restored in Kashmir and its soil cleared of the invader , the question of State’s accession should be settled by a reference to the people.”

12. This statement is not a part of the Instrument of Accession. According to Mr. M.C Mahajan, the former Chief Justice of India,

” The Indian Independence Act did not envisage conditional accession.  It could not envisage such a situation as it would be outside the Parliament’s  policy. It wanted to keep no Indian State in a state of suspense. it conferred on the rulers of the Indian States absolute power in their discretion to accede to either of the two Dominions. The Dominion’s Governor General had the power to accept the accession or reject the offer but he had no power to keep the question open or attach conditions to it.

The only documents relevant to the accession were the Instrument of Accession and the Indian Independence Act and as the Constitution documents did not contemplate any conditions, there can be no question of the accession having been conditional. Again, in the words of Mahajan J.-

”  Finality which is statutory cannot be made contingent on conditions imposed outside the powers of the statute. Any rider which militated against the finality is clearly ultra vires and has to be rejected.”

13. Pakistan refused to recognise the accession , Dawn, the Mulim League’s Official Organ quoted Mr. Liaquat Ali Khan saying:

We do not recognise this accession . The accession of Kashmir to India is a fraud, perpetrated on the people of Kashmir by its cowardly Ruler with the aggressive help of Indian Government.”

14. India had no claim to Kashmir before that State acceded to it; it acquired title only after the Governor- General had accepted the Instrument of Accession of the Ruler. With regard to the contention that the accession was obtained by force , Campbell Johnson writes, ” Indeed the State’s Ministry under Patel’s direction , went out of it’s way to take no action which could be interpreted as forcing Kashmir’s hand and to give assurances that accession to Pakistan would not be taken amiss by India. On his return to London, lord Mountbatten narrated:

” had he acceded to Pakistan before August 14, the future Government of India had allowed me to give His Highness and assurance that no objection whatever would be raised by them.”

15. Nehru, at Mountbatten’s bidding referred the matter to the United Nation. India invoked article 35 of the charter of United Nations and complained to the Security Council against Pakistan. Under Article 35, a member is entitled to bring before the Security Council a ‘situation’ which imperils the International peace. The Government of India appealed to the Security Council , to ask the Government of Pakistan:

(i) to prevent Pakistan Government personnel, military and civil, participating in or assisting the invasion of Jammu and Kashmir State;

(ii) to call upon other Pakistani nationals to desist from taking any part in the fighting in Jammu and Kashmir State;

(iii) to deny to the invaders:

(a) access to and use of its territory for operations against Kashmir;

(b) military and other supplies;

(c) all kinds of aid that might tend to prolong the present struggle.

16. The Security Council resolution passed on January 27, 1948 was accepted by both India and Pakistan. India also agreed to hold a plebiscite. One of the conditions of plebiscite was demilitarization of the State. India accepted the same with a rider. Since Pakistan was the invader they should remove their army first. Pakistan refused to do it consequently, the plebiscite could not be held.

Article 370 came into force on 26th January, 1950. It was no part of the condition for accession. Arguments on those lines have no factual and /or legal basis. “The people’ argument of the leftists’ also does not seem to have any basis whatsoever either legally or otherwise. The Government of India Act , 1935  and the Indian Independence Act, 1947 recognised only the Rulers and entered into agreements with the Rulers. Consequently, the choice to join either of the dominions was given to the Rulers and not ‘ the people’ or any other shadowy entity.

Further , the argument about plebiscite which props up now and then in electronic debates and print publications does not seem to have much merit either. It was never the contemplation that the Plebiscite would be held only on the Indian side of Kashmir. Plebiscite , if at all were to be held for the entire State of Jammu & Kashmir which includes Pak Occupied Kashmir. Over the years the Pakistan Government with deliberative manipulation have changed the demography of the said area. The further act of slicing away a part of Kashmir and giving it to China is in violation of International Law. The leftists as usual are rather economic with  truth.

17.  Constitutional development in Kashmir.

On 28th June, 1938, a meeting of the Working Committee  of the Muslim Conference was held in which Sheikh Mohammed Abdullah moved a resolution suggesting to change the name of the conference to ‘ National Conference. The National Conference decided to observe August 5, 1938 as the ‘ Responsible Government ‘ day. On February 11, 1939 , His Highness the Maharaaja Bahadur issued a proclamation sanctioning further Constitutional advance. It was under this Act that Maharaja Sri Hari Singh, appointed his erstwhile adversary Sheikh Abdullah, in 1947 as the Emergency Administrator of the State. 

In June 1949, the Yuvraj , 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.

On January 26, 1950 the Constitution of India came into force. It was also on the same day that the Constitution ( Application to Jammu and Kashmir ) Order, 1950 was made. on April 20, 1951 the Maharaja of Jammu and Kashmir issued a proclamation pursuant to which the Constitutent Assembly was set up to frame the Constitution of Jammu and Kashmir.

18. On November 15,  1952 the President made Order no C.O. 44 to the following effect:

In exercise of powers conferred by this article ( Article 370) of the Constitution, the President on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir declared that, as from the 17th day of November, 1952, the said Article 370 shall be operative with the modification that; for the explanation in clause (1) thereof, the following explanation is substituted, namely,

Explanation-For the purposes of this article, the Government of the State means the person for the time being recognised by the President on the Legislative Assembly of the State as the Sadar-i- Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.

Thus the Explanation to Article 370 of the Constitution of India was amended by a Presidential proclamation made under Article 370 (1).  The same has since been upheld.

19. Article 370

Sheikh Abdullah approached B. R. Ambedkar with a request to draft the law. Ambedkar flatly refused ” Making limited application of laws made by Parliament for the State of Jammu and Kashmir would create lots of problems rather than solving, was his blunt reply to Sheikh Abdullah.  The responsibility for drafting the special law was then entrusted to Nehru’s trusted lieutenant Gopalswamy Ayengar. When the draft Aticle was placed before the Congress Working Committee in October 1949 for its approval, the committee rejected it. It got only two votes in support that of Maulana Abul Kalam Azad and Goplaswamy Ayengar.

Article 306 A ( which became Article 370) was brought before the Constituent Assembly just a month before the final approval of the draft Constitution. The first to object was a member of the communist party from Lucknow and a renowned Urdu poet, Hasrat Mohni. Why this discrimination  please? he asked Gopalswami. ” if you grant these concessions to the Maharajah of Kashmir you should also withdraw your decision about merger of Baroda into Bombay and allow all these concessions and many more concessions to the Baroda ruler also.

The reply of Gopalswamy Ayengar has been summed up in Sampat Prakash – Vs- The State of Jammu and Kashmir reported in AIR 1970 S.C. 1118

” (i) that there had been a war going on within the limits of Jammu and Kashmir State;

(ii) that there was a cease fire agreed to at the beginning of the year and that cease fire was still on,

(iii) that the conditions in the State were still unusual and abnormal and had not settled down;

(iv) that part of the State was still in the hands of rebels and enemies;

(v) that our country was entangled with the United Nations in regard to Jammu and Kashmir and it was not possible to say when we would be free from this entanglement.

(vi) that the Government of India had committed themselves to the people of Kashmir in certain respects which ccomitments included an undertaking that an opportunity would be given to the people of the State to decide for themselves whether they would remain with the Republic or wish to go out of it; and

(vii) that the Will of the people expressed through the Instrument of a Constituent Assembly would determine the Constitution of State as well as the sphere of Union Jurisdiction over the State. ” (Emphasis supplied)

Article 3 of the Constitution of Jammu and Kashmir-The State of Jammu and Kashmir is and shall be an integral  part of the Union of India.

Ram Madhav, writing in Open recounts as follows:

” Prakash Vir Shashtri, a Bharatiya Jana Sangh member of Parliament from Bijnour in Uttar Pradesh, had moved a private member’s bill in Parliament in in 1964 on Article 370. That Bill received wide support from members cutting across party lines. Even the Congress and National Conference members were seen supporting it-of particular interest were speeches made by the associates of Sheikh Abdullah.

Abdul Ghani Goni from J& K , who was earlier a staunch supporter  of a separate Muslim identity for Kashmir was surprisingly aggressive in demanding repeal of the Article. The the then Prime Minister of J & K , Bakshi Gulam Muhammed , had moved for abrogation of Article 370, but the Central Government was not agreeable to it at that time.

20. Article 370- the Constitutional Scheme

” so I dispassionately appeal to the members of this House and appeal not only to the opposition Members but also to the congress members to support this bill and get it passed and have Aticle 370 abrogated from the Constitution of India so that we may also be treated as equal citizens , as good citizens of India as any other citizen. Don’t treat us as second class citizens, and don’t treat us as a colony of India. we are as much a part of India as other States”- Abdul Ghani Goni

” We the people of Kashmir , never demanded that we should be treated differently. we do not want Article 370. I want to end this curse in my lifetime, for my safety, for my children’s safety, for the safety of our future generations. We should have the same laws as Maharashtra, Madras, Kerala, Bengal. We did not believe in two nation theory of Jinnah and hence we did not allow any breach of Muslim League to be formed in J& K”- Syed Nasir Hussain Sammani.

” agreed with the Jana Sang’s views that Jammu & Kashmir should be fully integrated with India and was taking steps in that direction- Nehru in private conversation with B.N. Mullick

Article 370 is a temporary provision at least the heading of the Article and the chapter to which it forms a part  suggest so.  It is a self contained code and auto destructive in that the seed for its destruction is embedded in the Article itself.  The broad scheme of the Act is as given below:

Limitations of the power of the Parliament to make laws for the State

The Parliament’s power to make laws for the State of Jammu and Kashmir shall be limited to

(a) those matters in the Union list and the Concurrent list which the President of India declares to correspond to the matters specified in the Instrument of accession in consultation with the State Government.

(b) and such other matters in the Union list and the concurrent list which the President may by Order specify with concurrence of the Government of the State

Government of the State shall mean Sadar-i- Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.

This was one of the first amendments effected in Article 370 through a Presidential proclamation. Thus, the route of Presidential Proclamation to amend Article 370 is an established precedence.

(c) Such of the other provisions of the Constitution with such modifications and exceptions as the President by Order specify.

Under Sub clause (3) the president may by a public notification declare that the article shall cease to be operative or shall be operative with such exceptions and modifications. Provided that the recommendation of the Constituent Assembly shall be necessary before the president makes such a declaration.

21. Subsequent to the Constitution of India coming into force on 26th January, 1950; a Delhi agreement was entered into by and between Sheikh Abdullah and the Union of India. The Delhi Agreement formed the basis of the Constitution ( Application to J&K) Order , 1954. By dint of this particular Order a new Article 35 A was introduced in the Constitution of India. The Article 35 A being the new article however, does not appear in the body of the Constitution of India but, is tucked away in the Appendix. Thus another precedence of amending the Constitution of India through a Presidential Proclamation has been established as a precedence.  Article 35 A which is extremely discriminatory is extracted below:

“35A. Saving of laws with respect to paermanent residents and their rights:-

Notwithstanding anything contained in this Constitution, no existing law in force in the State Of Jammu & Kashmir , and no law hereafter enacted by the Legislatures of the State,-

(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu & Kashmir; or

(b) Conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects –

(i) employment under the State Government;

(ii) acquisition of immovable property in the State;

(iii) Settlement in the State;

(iv) right to sccholarships and such other forms of aid as the State Government may provide,

shall be void  on the ground that it is inconsistent with or taks away or abridges any rights conferred on the other citizens of India by any provisions of this Part.

The leftists’ or the J&K apologists have never been heard to criticize such blatantly discriminatory treatment even while the Supreme Court held that the Jammu & Kashmir residents are the Citizens of India.  It has been the most harrowing provision used to exploit a section of the citizens of the Country. 

22. The right of the President to vary and /or amend the Constitution of India by a Presidential Proclamation made under Article 370 (1) has been upheld by the Hon’ble Supreme Court in Puranlal -Versus- President of India reported in AIR 1961 SC 1519. The Hon’ble Supreme Cout held as follows:

“Thus in law the word ” modify” may mean “vary” and may even mean to “to  extend” or ” enlarge”. Thus in law the word ” modify” may just mean ” vary” , i.e. amend the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify it means that he may vary (i.e. in its application to the State of Jammu & Kashmir. We are therefore of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word “modification” used in Art 370 (1)  and in that sense it includes an amendment. There is no reason to limit the word ” modifications” as used in Art 370 (1) only to such modifications as do not make any “radical transformation”. We are therefore of opinion that the President had the power to make the modification which he did in Art 81 of the Constitution.”

23. By a Presidential Order the interpretation clause of the Constitution of India has been amended in its application to the State of Jammu and Kashmir. Sadar-i- Riyasat acting on the advice of the Council of Ministers would now mean the Governor. This by itself should not be problematic. The earlier reference to Maharaja was similarly amended and read as Sadar-i-Riysat because the Constitution of J& K did away with the Monarchy, Similarly there are no Sadar-i-Riyasat now and should be read as Governor. References to Government of State shall also include  the Governor of State acting on the advice of the Council of Ministers is also in comity with the Constitutional Scheme. In State Bank of India -versus- Santosh Gupt and another reported in (2017) 2 SCC 538 it has been held that J&K is not a sovereign Country and its Constitution is subservient to the Constitution of  India and that People residing in J&K are Citizens of India..

24. As has been pointed out earlier that Article 370 is auto destructive. The power of destruction was provided in Clause 3 of Aritcle 370. However abrogation of Article 370 by a Presidential Proclamation was to be made on the recommendation of the Constituent Assembly. The Constituent Assembly has long ceased to exist after the Constitution of Jammu and Kashmir came into force. To say along with the dissolution of the Constituent Assembly of J&K , the temporary article became permanent would be doing violence to the Spirit of the Constitution and thus by way of Presidential Proclamation the Constituent Assembly shall read the ‘Legislative Assembly of the State”.

25. Article 370 came into existence to ostensibly deal with a special situation. It should be abrogated to deal  with the special situation it has created. It is therefore submitted that the changes brought about are valid , binding and Constitutional.