Amid all the controversy that has been generated in this country after the Centre’s abrogation of Article 370 of the Constitution, which provided a special status to Jammu and Kashmir, a look back at some recent history might be instructive. To just 80 years ago, in 1939, when in the then princely state of Jammu and Kashmir Maharaja Hari Singh promulgated a royal constitution for his kingdom on September 7 that year. [Just eight years after that, the same maharaja would sign the Instrument of Accession, making his kingdom an integral part of newly-independent India.]
In 1939, the maharaja reigned, but he also ruled. The presence of the people’s elected representatives in the kingdom’s legislature notwithstanding, it was clearly the “King’s Constitution” all the way. While it was most definitely not the best such document, it may be worthwhile to wonder why an authoritarian princely state like J&K thought of having a constitution. This was not the practice in any of the 565-odd princely states, or for that matter in British India. For all of 200-plus years, first under the East India Company, and then under the Crown, the British in India made do with intermittent legislation, the last of which was the Government of India Act 1935.
However, for Maharaja Hari Singh, it slowly and steadily became a compulsion, rather than a choice, to placate the increasingly restive subjects of his state who felt unhappy with the style of his rule. It did not thus come as a surprise when the National Conference observed August 5, 1938 as “Responsible Government Day”, after having earlier amended its party constitution to “throw open its doors” to non-Muslims on June 28, 1938. The party’s name too was changed from “Muslim Conference” to “National Conference”. Incidentally, 81 years later, on the same day, August 5, 2019, J&K state was bifurcated into two Union territories by India’s Parliament.
Understandably, the alarmed maharaja realised the inherent power of a united people and issued a proclamation sanctioning constitutional advance on February 11, 1939. Soon thereafter came the landmark, pioneering constitution, on September 7, 1939, on the soil of South Asia, constituting “an event of outstanding importance in the annals” of governance east of Suez.
Comprising 78 sections and five schedules, the Jammu & Kashmir Constitution Act 1939 has to be appreciated due of its novelty of idea, rather than the negativism in implementation. Indeed, it was a constitution that concentrated and consolidated the power of the king in absolute terms. Thus, Section 4 of J&K Constitution Act 1939 said: “All rights, authority and jurisdiction which appertain or are incidental to the government of… the territories are exercisable by His Highness…”.
Section 5 too stipulated: “All the powers, legislative, executive and judicial, in relation to the state and its government, are hereby declared to be and to have always been inherent in and possessed and retained by His Highness...”. Despite the constitution, however, the king remained the source of all authority, both in theory and practice.
Little wonder then that the irony of the Constitution of J&K was not lost on former Chief Justice of India A.S. Anand, whose laconic words spoke volumes: “It did not constitute even a partial surrender by His Highness of his sovereign rights in favour of the Praja Samiti” (J&K legislature). The Constitution Act 1939 emphatically brought out the fact that the maharaja was an “absolute monarch” in whom were vested all the powers in relation to the State.
In the eyes of this writer, the very Constitution of J&K, promulgated in 1939, was a blessing in disguise as it became the primary legal route to permanently bind Srinagar with New Delhi, in the absence of an Indian Constitution in October 1947. “All constitutional powers vested in the monarch” — saved the state eight years later when J&K acceded to India on October 26, 1947. Subsequently, the accession of J&K got a three-tiered legal and constitutional protective ring which smashed all violent claims, including the howling of Pakistan over J&K, and trying to turn it into a disputed territory.
Thus, assuming that there were no Instrument of Accession or the Constitution of India for J&K’s accession to India, the very act and decision of the maharaja had the legal sanction and support of the constitution of the princely state. As the maharaja, the Constitution by his side, as laid down in Section 4, joined India: “All rights, authority and jurisdiction… incidental to the government of… the territories are exercisable by His Highness”. Also Section 5: “All powers, legislative, executive and judicial, in relation to the state and its government are… inherent in and possessed and retained by His Highness”. Thus, the 1939 Constitution alone legalised the accession of J&K to India. On this point, New Delhi needs to acknowledge the yeoman service rendered by Maharaja Hari Singh and his law and revenue minister, Justice Sir Lal Gopal Mukherjee, a former judge of the Allahabad high court (1926-1934), who had served the state of J&K from 1935 to 1940.
Thus, the very criticism over the concentration of power saved the king and his kingdom from being ruined by the marauding and murderous foreign invaders. It thus turned out a joint venture of three — two separate constitutions; of 1939 in Srinagar and 1950 in New Delhi, and the 1947 Instrument of Accession, ordained by London, which made J&K an integral part of India.
Where does the J&K Constitution Act 1939 stand in the pages of Indian history, as things heat up due to the intransigence and silly utterances by Pakistan’s rulers in 2019? It was the “pioneer” in the annals of Asia’s constitutional history; despite the fact that it was anything but a people-friendly “Magna Carta” for the state.
The constitution of J&K aside, it must also be remembered that any successful Pakistani (or Chinese) challenge to J&K’s accession, through the Instrument of Accession, is fraught with potential risks as all accessions, made by over 540 princes, to India, took place through a common document. Hence, any damage to this may spell cascading adverse effects, leading to a multi-front fiasco. At this point, instead of three, India has two defence-cum-offence screens on J&K — the Instrument of Accession (1947) and the Constitution of India (1950), without Article 370. The third screen (that could be referred to as the pioneering front), the 1939 J&K constitution, is gone. The Indian establishment therefore needs to look at J&K very carefully, and particularly so through the legal lens. The heat needs to be reduced.
