Kashmir: secession or merger?

• That is the question?

As and when Article 1 of Constitution of India, which deals with the territory of the country, is directly applied to Kashmir, it will get merged with India. All the other Articles of Indian Constitution will then automatically apply to Kashmir. However, as of now, Article 1 or for that matter any other Article of the Constitution of India, applies to Kashmir, not directly but, only through Article 370. Article 370 is a temporary affair. It envisages its own abrogation. Hence the constitutional relationship between Kashmir and India is temporary.

Article 370, when it was applied to Kashmir on 26 January 1950, was apparently a substitute for the Instrument of Accession of October 1947. But it was actually more than a mere substitute. It did not merely cover the central subjects of defence, foreign affairs, and communications as specified in the IoA, it also provided for extension of powers of Indian parliament to legislate for Kashmir on other subjects in addition to the central ones, albeit in consultation with, and with the concurrence of, the government of Jammu and Kashmir for the time being, and with the concurrence of the constituent assembly of the state to be convened in near future.

In addition to opening the door for extension of powers of the Indian parliament, Article 370 was the device through whose Clause (1) (c), the Article 1 of the Constitution of India was applied to Kashmir which otherwise did not apply on the basis of mere Instrument of Accession. Clause (1) (c) reads: “the provisions of Article 1 and of this Article shall apply in relation to that state.”

Under Article 370 of Indian Constitution, Kashmir still has the option of secession or merger. Therefore, the statement of Indian army chief that Kashmir cannot secede from India is extra-constitutional

Article 1 would apply to Kashmir only after its merger with India. Kashmir had not merged with India like other princely states had by issuing proclamations to that effect on 25 November 1949, a day before the Constitution of India was adopted.

The application of Article 1 through Article 370 enabled the Constituent Assembly of India to describe Kashmir as a constituent unit of India. Since it was a princely state it was listed as Part B state in the First Schedule. Part B states were headed by Rajpramukhs unlike Part A states that were headed by governors. But since Kashmir had not been merged; and since it was still headed by the Maharaja, whose authority was exercised on his behalf by Prince-Regent Karan Singh, the Clause (1) (a) of Article 370 provided that Article 238 of the Indian Constitution, which governed the relationship between the Union and its Part B states, would not apply to Kashmir.

Paragraph (3) of Article 370 provides the procedure for its abrogation. It can be abrogated, either in toto or with exceptions and modifications. If it is abrogated with the exception and modification of its Clause (1) (c) so as to directly apply Article 1 of the Constitution of India to Kashmir, Kashmir will get merged with India because in that case all the other Articles of Indian Constitution will apply to Kashmir automatically which were otherwise applied indirectly in 1954 through a Presidential Constitution Order under Article 370.

However, if Article 370 is abrogated in toto, not only will Article 370 get abrogated, but also Article 1 and all the other Articles of the Constitution of India in their application to Kashmir will get abrogated; and, consequently Kashmir will secede from the Union of India.

So under Article 370 of Indian Constitution, Kashmir still has the option of secession or merger. Therefore, the statement of Indian army chief that Kashmir cannot secede from India is extra-constitutional. He should know that unless a final call is taken on Article 370, Kashmir will remain politically uncertain and restive.