Before J&K, other Princely States too had wanted their own constitutions

Articles of Faith

While reading the Supreme Court’s judgement upholding the abrogation of Article 370, I found a forgotten nugget of India’s constitutional history -- a plan to have written constitutions for the states, at least for the large princely states, as well. Had it fructified, Mysore state, which later became Karnataka, too, would have had its own constitution apart from the Constitution of India!

While Jammu and Kashmir eventually became the only state in India to have its own constitution (between 1957 and 2019), it was not completely exceptional. Rather, as the Supreme Court’s judgement points out, major Princely States such as Mysore and Travancore had, while acceding to India, set up Constituent Assemblies of their own to draft their respective constitutions as well.

One reason for this was that some of the more enlightened princely states (such as Mysore) had slowly started to move towards a more representative government even before Independence, setting up limited, representative Assemblies. The other -- perhaps more important -- reason was the manner of these Princely States’ accession to India. Though the British-ruled Provinces (such as Madras and Bombay) were already being governed by the Government of India Act, 1935, in 1946-47, when the Princely States began negotiations to join the Dominion of India, there was no clarity on what the future Constitution of India would look like. The initial Instrument of Accession signed by the rulers of the Princely States therefore had conceded powers to the Union of India only over defence, foreign affairs and communications. It was understood by all, including the then Union government, that the Princely States would set up Constituent Assemblies and draft their own constitutions as part of their accession to India.

It was not just the Princely States that were supposed to get their own, respective constitutions, either. A Resolution passed by the Constituent Assembly on April 30, 1947, created two separate committees -- one for the Drafting of the Federal Constitution, and one for the Drafting of the Provincial Constitutions. This committee even came up with a Model Constitution for the provinces, but this idea was later scrapped and most of the suggested provisions, with some changes, made it to the ‘Federal Constitution’.

However, in 1949, it was realised that a similar exercise, that of having a Model Constitution for the Princely States was also necessary since they were carrying on the process of drafting their own constitutions in parallel with the Constitution of India. The worry was that multiple, contradictory constitutions would confuse the process and now that the Constitution of India was taking shape, there was a need to have some sort of a Model Constitution that the Constituent Assemblies in the Princely States could rely on. A committee headed by B N Rau suggested that the Constitution of India also contain a Model Constitution for those states which were drafting their own constitutions.

However, as the Supreme Court’s judgement notes, the multiple constitutions idea ran into some difficulties -- the biggest one being that a lot of the Princely States (such as in Rajasthan and the Patiala and East Punjab States Union) had not yet set up their constituent assemblies. As the Constitution of India was getting closer to being brought into force, this would have created a vacuum and led to confusion. The idea of having multiple constitutions was therefore abandoned and the Princely States acquiesced to this by winding up their Constituent Assemblies.

Sardar Vallabhai Patel, in his speech to the Constituent Assembly on October 12, 1949, gives a slightly different spin to it, arguing that multiple constitutions was a legacy of a polity where the Princely States ruled large parts of the country, but with the polity now being a “people’s polity”, a single Constitution would be more appropriate. The already existing Constituent Assemblies, such as the one in Mysore, transitioned into becoming the legislature for the state.

However, the Constitution of India still recognised that the former Princely States were different from the former British Provinces. Article 238 stated that the Constitution, in so far as it applies to Part B states (mostly the former Princely States and unions of such Princely States) would be slightly different. Most of the modified provisions of the Constitution related to the Rajpramukh (the former ruler of the Princely State) exercising powers somewhat similar to those of a Governor in the rest of the states. However, there were certain unique provisions that applied only to specific states -- such as Mysore having two Houses of legislature.

If you look for Article 238 in the Constitution today, though, you won’t find it. It was removed by the Seventh Amendment to the Constitution, which reorganised states on linguistic lines, removing all distinctions between former British Provinces and former Princely States.

The exception to all this was the Princely State of Jammu and Kashmir. The reason was also that at the time of the Constitution of India coming into force, the Constituent Assembly in J&K hadn’t been formed, the relationship with India was not yet final, and that is why Article 370 existed as a temporary arrangement. This is also why Article 370 said that it would be removed by the President but only after the Constituent Assembly recommended that the President remove it.

Unlike other states, Kashmir’s Constituent Assembly only wrapped up its work in 1957 and was dissolved, but it did not recommend the removal of Article 370. This, scholars and lawyers have argued, meant that Article 370 was intended to govern the relationship between Jammu and Kashmir and the rest of India in perpetuity. This did not make J&K any less a part of India or integrated any less with the rest of the Union, but it gave it a unique position, which if it had to be changed, ought to have only been done through a constitutional amendment and not legal sleight of hand.