The Importance of Article 370
Article 370 of the constitution of India relating to the state of Jammu and Kashmir is now sixty six years old. The constitution came into force on 26 January 1950 and with it, this unique provision were debated in the constituent assembly of India after deliberations in its drafting committee and, sometimes, in discussion in the congress parliamentary party. This chapter notes that the redrafting of Article 370 and a review of the constitution of Jammu and Kashmir are necessary. It holds that amendments must be based on agreement between all the major parties in Jammu and Kashmir. Given the political will, sincerity of purpose, and a spirit of compromise, it is not difficult to retrieve from the wreckage of Article 370 a constitution settlement which satisfies the aspiration of the people of Jammu and Kashmir.
Historical background of Article 370
On October 26, 1947 Hari Singh, the maharaja of Kashmir, signed the Instrument of Accession of Kashmir to dominion of India. Under this instrument, he surrendered the jurisdiction of three subjects- defence, external affairs and communications to the central government. Lord Mountbatten, presumably with the knowledge and consent of Pandit Nehru, unwisely insisted that the final decision of the accession would be ratified by the constituent assembly of Jammu & Kashmir. The blunder was committed by Nehru to follow Lord Mountbatten blindly. When neither Maharaja Hari Singh nor Sheikh Abdullah demanded the ratification of instrument of accession by the constituent assembly of Jammu & Kashmir, it was wrong on part of the government of India to insist on the ratification. It was a Himalayan blunder committed by Nehru.
Date of execution of the instrument of accession of its ratification by the constituent assembly of Jammu & and Kashmir, some temporary provision in the form of Article370 were made in the constitution of India. Under the article those parts of pertained to defence, external affairs and communications could be extended to Kashmir in consultations with the state government. The parts that dealt with subjects other than those could be extended with the concurrence of the state government. The executive of the state was thus being given not just legislative function; it was being given a legislative function in regard to the constitution under which the people of the state were to live. This how article 370, which made bulk of the Indian constitution, inapplicable to Jammu and Kashmir, was incorporated in our constitution.
Importance of Article 370
Article 370 of the constitution is the current bedrock of the constitutional relationship between Jammu and Kashmir and the rest of India. With its abrogation being an avowed policy of the Bharatyia Janata party, the Jammu & Kashmir high court’s observation that the provision has acquired a state of permanence may cause some disquiet in the party and the government. However, the high court’s comment should be seen in the limited context in which it was made. Its remarks that article 370 is beyond amendment or repeal or abrogation flows from an analysis of the question whether the section had become incorporative after the state constituent assembly framed its constitution, and the assembly itself ceased to exist. In fact, the question whether its temporary provisions had acquired permanence was not before the court; nor was the court hearing a challenge to validity of the article per se. It was dealing with the validity of reservation in promotions among government employees in Jammu & Kashmir ultimately; it struck down the provisions for quotas in promotions on the ground that clause 4A of article 16, introduced by the constitution 77th amendment to protect reservations in promotions, was not applicable to Jammu & Kashmir. This because presidential order making law new clause applicable to the state. One of the features of article 370 is that a constitution amendment becomes applicable to Jammu & Kashmir only after the president issue an order. Without the protection of the clause, there is no scope for reservation in promotions, as the Supreme Court had barred such quotas in INDRA SAWHNEY case.
In its implications for article 370, the high court verdict has not broken any new ground. If anything, it is a reiteration of earlier Supreme Court ruling that article 370 continues to be operative. It impliedly rules that the president’s power to issue orders, as has been done over the years making several laws and provisions of the constitution applicable to Jammu & Kashmir remains untrammelled. By reiterating the core requirement that even provisions affording constitutional protection requires the use of article 370 and orders issued under its imprimatur, the court has reaffirmed that importance of the article and showed how abrogating it will weaken the getting special status. Some may find the observations that article 370 are beyond the repeal or abrogation debatable. Parliament’s amending power under article 368 remains available for such measure, but it is far wiser for any dispensation to wait for a resolution of the dispute with Pakistan over the entirety of Kashmir’s territory before revisiting the state’s constitutional status. Any premature action on this front may be a needless misadventure.
Supreme Court on Article 370
Supreme Court in December 2015 said that only parliament can take a call on scrapping article 370 that accords special autonomous status to Jammu and Kashmir.
PIL petitioner BP Yadav, a lawyer based in Andhra Pradesh, argued that the issue required interference by the Supreme Court but the bench turned down his plea. “We can strike down a provision if it is unconstitutional but we cannot be asking parliamentary to remove a provision. It has to be done by parliament”.
Jammu & Kashmir High Court Observation
In Year 2015 Jammu & Kashmir High Court observed that article 370 is a permanent provision of the constitution. “It cannot be abrogated, repealed or even amended as mechanism provided under clause (3) of article 370 is no more available”, the court observed in its judgement on a case challenging the reservation benefits in promotions to the employees.
Nothing that article 35A protected the existing laws of the state; the High Court said that Jammu and Kashmir had retained limited sovereignty while acceding to the dominion of India like the other princely states that signed the Instrument of Accession.
It said that the constituent assembly of 1957 was empowered to recommended to the president that 370 be declared to cease to operative or operate only with the exceptions and modifications, but it did not make such a recommendation before its dissolution on January 25, 1957. It had added articles 370 embodied “conceptual framework of relationship” between the Union of India and Jammu & Kashmir.
The abrogation of article 370 of the constitution that would terminate Kashmir’s special status compared to other states in its 1st schedule of our constitution. This demand for repeal of article 370 has been repeatedly voiced by the BJP.
The Kashmir committee has explained that this demand must be abandoned as it serves no significant Indian interest, and cause unnecessary suspicion to many in Kashmir. Besides, it is not an unreasonable price to pay for eliminating the influence of secessionists and liquidating their plans. But most importantly, it is this article that gives a constitutional finality to the entire region of Jammu and Kashmir being an integral part of India.
Let me also clearly state that the repeal of article 370 is not possible by any constitutional method. It can only be done by a constitutional coup, which even our supreme court will declare ultra vires and void.
Article 370 provides for its own repeal not by legislation by parliament of India, but by presidential action under clause 3 of the article, which reads under:
“(3) Notwithstanding anything in the foregoing provisions of this article, the president may, by public notifications, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
“Provided that the recommendation of the constituent assembly of the state referred to in clause (2) shall be necessary before the president issues such a notification.”
No such recommendation has been obtained and none is feasible now or in the foreseeable future.
The article is result of freely negotiated contract between the people and constitutional authority of India. It is thus a basic feature of the constitutional scheme that has evolved for the future governance of the state, and is beyond any power of modification or repeal within the kesavananda bharati doctrine evolved by our own supreme court, that anything which is conflicts with seeks to alter this basic structure of the constitution, is ultra vires. The amending power under article 368 cannot reach it.
We cannot compel our president to exercise a power which does not rest in him. We will only earn the bad reputation of being constitutional terrorists without any significant gain. Even on the express words of the proviso to clause 3 quoted above, such a power is completely negative.
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