By Narasimhan Vijayaraghavan
On 8th Aug,2023 11 am, Kapil Sibal resumed his submissions. The debate on whether ‘Art.370’ in entirety, had worked its intent and purpose, and rendering it ‘unamendable’, again arose in the exchanges. Sibal chose to pivot to say, “ Let me assume Mi lords it was amendable’.Was the procedure followed constitutional ? That is the core question. My submission is that the decision was political, procedure was political and therefore a ‘fraud on the constitution’”.
Bench: Sibal, if you agreed Art.370 was amendable, President had the power to ‘modify’- the act would be amoral/unenthical and not illegal. Can we ever conclude that there was abuse of power by Parliament. It is unheard of”.
Sibal was groping. He said, “ How can Parliament take over the power of J&K Constituent or legislative assembly? It was a mythical assumption of power”.
Bench: “ So your primary challenge is that Parliament’s assumption of the role was unconstitutional and Presidential exercise of power tucked into by the executive government was fraudulent. Have we understood you right?
Sibal: Yes. May I proceed”.
Wow! This is live streaming of democracy at its best. NYT bemoaned lack of ‘democracy’ in India. What is this? If not democracy’s finest hour? When unelected judges were holding fort over elected government’s acts, in public, for the world to see. Even SCOTUS hearings are not video streamed till date. Only audio-streamed. We have gone beyond. Indian democracy is alive and kicking, for sure.
We may now read the Instrument of Accession dt.27th Oct,1947, to appreciate and better understand the legacy of Art.370. Shall we?
ALSO READ: Daily Nuggets from the Art.370 legacy-7
Instrument of Accession of Jammu and Kashmir
Whereas the Indian Independence Act, 1947, provides that as from the fifteen day of August, 1947, there shall be set up as Independent Dominion, known as India and that the Government of India Act, 1935, shall, with such omission, additions, adaptations and modifications as the Governor- General may by order specify be applicable to the Dominion of India;
AND WHEREAS the Government of India Act, 1935 as so adapted yb the Governor-General provides that an Indian State may accede to the Dominion of Indian by an Instrument of Accession executed by the Ruler thereof:
ALSO READ: Daily Nuggets from the Art.370 legacy-5
I. I, Shriman Inder Mahendra Rajrajeshwar Maharajadira Shri Hari Singh Ji, Ruler of J a m m u and Kashmir in the exercise fo my sovereignty in and over my said State Do hereby execute this my Instrument of Accession, and
1. I hereby declare that I accede to the Dominion of India with hte Intent that the Governor-General of India, the Dominion Legislature, hte Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this my Instrument of Accession, but subject always to the terms therefore and for the purpose only of the Dominion, exercise in relation to the State of Jammu and Kashmir (hereinafter referred to as “this State”) such functions may eb vested in them by or under the Government of India Act, 1935 as in force in the Dominion of India on the 15th Day of August, 1947 (which Act as so in force is hereinafter referred to as “the Act”).
2. I hereby assume the obligation of ensuring that due effect is given to the provision of the Act within this State as they are applicable therein by virtue of this my Instrument of Accession.
3. I accept the matters specified in the schedules here to as the matters with respect to which the Dominion Legislature may make laws for this State..
4 1 hereby declare that I accede to the Dominion of India on the assurance that fi an agreement is made between the Governor-General and the Ruler of this State where by any functions in relations to the administration in this State of any law of the Dominion Legislature shall be exercised by the Ruler of this State, then any such agreement shall be deemed to form part of this Instrument and shall be construed and have effect accordingly.
5. The terms of this my Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment is accepted by me, by an Instrument supplementary to this Instrument.
6. Nothing in this Instrument shall empower the Dominion Legislature to make any law for this State authorizing the compulsory acquisition of land for any purpose, but I hereby undertake that should the Dominion for the purpose of Dominion law which applies in this State deem it necessary to acquire any land I will at their request acquire the land at their expense or if the land belongs to me transfer it to them on such terms as may be agreed or in default of agreement determined by an arbitrator to be appointed by the Chief Justice of India.
7. Nothing in this Instrument shall be deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangement with the Governments of India under any such future Constitution.
8. 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 powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.
9. I hereby declare that I execute this Instrument on behalf of this State and that any reference in this Instrument to me or to the Ruler of this State is to be construed as including a reference to my heirs and successors.
Given under my hand this 26th day of October nineteen forty seven. Sd/- Hari Singh Maharaja Dhiraj ofJ a m m u and Kashmir 1do hereby accept this Instrument of Accession.
ALSO READ: Daily Nuggets on Art.370 legacy-3
Dated this twenty seventh day of October, Nineteen hundred and forty seven.
27th October, 1947.
Sd/- Mountabatten of Burma Governor General of India
•The matters with respect to which the Dominion Legislature may make laws for the State.
1. The naval, military and air forces of the dominion and other armed force raised or maintained by the Dominion; any armed forces, including forces raised or maintained by an acceding State, which are attached to, or operating with the armed forces of the Dominion.
2. Naval, Military and Air force works, administration of cantonment areas.
3. Arms, firearms; ammunition.
B. External Affairs
1. External Affairs, the implementing of treaties and agreements with other countries, extradition, including the surrender of criminals and accused persons to parts of His Majesty’s Dominion outside India.
Contemporaneously , what happened before the Constituent Assembly which was debating the framing of our Constitution, was truly stunning.
Shall we go there?
( Author of Constitution & its Making/Working, OakBridge,is practicing advocate in the Madras High Court)