Article 370

Sunil R.P. Sethi
With the recent debate in the national media and political circles about the laws in the State of Jammu and Kashmir with regard to State Subject, Article 370 of the Constitution of India has come under scanner with statements being made on either side about its importance and relevance in the present scenario. The issue raised that Article 370 has got nothing to do with the State Subject laws which are governed by Section 6 of the Constitution of Jammu and Kashmir is also the relevant issue which requires certain amount of in-depth study on the constitutional provisions and the relations of the State of Jammu and Kashmir with the Union of India. The State of Jammu and Kashmir acceded to India on 26 Oct. 1947 with execution/signing of Instruments of Accession by the then Ruler of the Jammu and Kashmir and its acceptance by Governor General Lord Mountbatten.
Instrument of accession which was signed by the Ruler of the J&K State was identical to the instrument of accession signed by the other rulers of the States which had acceded to the Union of India. Whereas in the case of other States the Constitution of India ipso-factor applies to the State after coming into force the Constitution of India, deliberately 370 was introduced to protect the provisions of the instrument of accession in a different manner so far as it pertains to the State of J&K. This differential treatment to the instrument of accession by incorporating Article 370 has led to multifarious problems and in fact has given rise to the felling of secessionists and separatism as also to anti-national dream of creation of an independent State of J&K.
Article 370 though agreed by the Constituent Assembly of the Union to be a temporary provision till the Union Government would have been in a position to persuade the total and complete merger of State of J&K with Indian union on the basis of assumption that the people of the State of J&K having population from all religions will prefer a secular India over religiously theological State of Pakistan.
In fact Article 370 of Constitution of India did contain the scope for intervention and interference by the Union Government to take control over the State of J&K by Presidential Orders, which was a deviation from normal process of amendments to the Constitution of India by Article 368. Article 370(1) has been used by the Central Government on number of occasions to exercise rule-making-power which had impacted the relation of the State of J&K with the Union in a very drastic and explicit manner, but most significant use of Article 370(1) is the issuance of the Constitution (Application to the Jammu and Kashmir) Order 1954 by virtue of which number of amendments have been made to the Constitution of India so far as its applicability to the State of J&K is concerned and most significant is introduction of Article 35-A in the Constitution of India. This Presidential Order of 1954 supposedly passed in terms of clause (1) of Article 370 has in fact introduced a new Article in Constitution of India i.e. Article 35-A by virtue of which the State of J&K has been given the powers by which laws of State of J&K defining the classes or persons who can be permanent residents of the State and special rights and privileges given to them so far as employment in the State Government, acquisition of immovable properties in the state, settlement in the State, the right to scholarship and other aids etc. were protected even if they would have been otherwise ultra-vires the Constitution of India.
The statement made recently by the Hon’ble Chief Minister of J&K that Article 370 does not deal with the provisions of the laws  on permanent residents of State of J&K as such is apparently not a wholly correct statement for the simple reasons that the section 6 of the Constitution of J&K  provides the definition of State subjects and deals with their rights and the other State laws restricting the rights of citizens of India in the matter of employment in the State, acquisition of immovable properties in the state, settlement in the State, the right to scholarship and other aids etc. would have been ultra-vires the Constitution of India and as such liable to be struck down, but for Article 35-A of Constitution of India inter alia made pursuant to the Constitution (Application to the Jammu and Kashmir) Order, 1954 under the provisions of Article 370(1). Article 370 as such has got direct nexus with restricting the rights of the Citizens of India to have equal rights in the State of J&K which are enjoyed by the permanent residents of the State of J&K. Similarly it is because of Article 370 and 35-A which has been issued under it that the rights of the children of female state subjects marrying non-state subjects are not being kept intact.
The debate on Article 370 will not be complete unless it is noted that the Constitution of India can be only amended, modified or changed under Article 368 of Constitution of India only and because of Article 370(1) the Constitution of India has been changed and even Article 35-A has been added without resorting to Article 368 of the Constitution of India, which is a fraud on the Constitution of India itself and should not have been allowed. Article 370(1) cannot be and should not be interpreted in a way to take away the applicability, existence and significance of Article 368 itself. The right to amend the Constitution of India to whatever extent is only possible if the matter is debated in the Parliament and a decision is taken and not by way of Presidential Order where Parliament was not taken into confidence.
Article 370(1) applies to different situations than what it had been used for Article 370(3)  which provides  that the President by public notification can declare Article 370 to cease to be in existence but the proviso thereto requires the President to act on the recommendation of the Constituent Assembly of the State of J&K in this regard. The Constituent Assembly was constituted which had the task of creating a separate Constitution of J&K and after its job was over, the said Constituent Assembly ceased to exist. The important question which may be required to be considered now will be whether the recommendation of the Constituent Assembly is required by the President to notify cessation of Article 370? In this regard the position can be clear that no consent, even if provided, can be insisted from a non-existent body and as such the recommendations of the Constituent Assembly of modification or cessation of Article 370 could have only arisen during the currency and lifetime of Constituent Assembly and after Constituent Assembly has ceased to exist, no such recommendations may be required by the President before notifying the cessation or taking back of Article 370 from the Constitution of India and rectifying the discriminations and exploitations which have been caused because of Article 370 being there at the first place.
Similarly Article 35-A even if it is to be assumed to have been validly inserted by the Presidential Order under Article 370(1), same is contrary to the Constitution of India as it intends to protect the provisions within the State laws which may be otherwise ultravires federal Constitution and to that extent it takes away the power of judicial review by the superior courts even by the Supreme Court of India as Article 35-A exist in part-III of the Constitution of India itself. Article 35-A in fact will be taken to be working against the preamble of Constitution of India which provides for equality of status and all opportunities….. As Article 35-A allows the creation of a different status for the permanent residents of State of J&K and also restricts the opportunities for the citizens of India in the State of J&K and as such, it will be working against the preamble of the Constitution of India. Article 35-A as such may be working against the basic structure of the Constitution of India and is not legally maintainable.
The issue with regard to the power of Parliament to make amendments even in the Constitution of India to alter or amend the basic structure of Constitution of India as also the preamble thereof was considered by Hon’ble Supreme Court of India in Keshwananda Bharati vs. State of Kerala (AIR 1973 SC 1461) in which it was held by the Supreme Court that the basic structure of the Constitution cannot be amended even by the Parliament under Article 368 of the Constitution of India. The basic structure  was indicated to be sovereignty and territorial integrity of India, the federal system, judicial review, parliamentary system of the Government etc. the list was illustrative and not exhaustive. The said judgment of Hon’ble Supreme Court was sought to be nullified by Indira Government in the year 1976 by 42nd Amendment to the Constitution by inserting clause (4) and clause (5) to Article 368 by which it was declared “there shall be no limitation on the constituent power of Parliament to amend the provisions of the Constitution of India and that the validity of Constitutional amendment shall not be called in question in any court on any ground. The effect of 42nd amendment was looked into and nullified by the Supreme Court of India Minerva Mills case (AIR 1980 SC 1789) and the judgment of Keshwananda Bharati vs. State of Kerala (AIR 1973 SC 1461) was followed. The said judgment was subsequently followed by Hon’ble Supreme Court of India in number of cases and the basic feature of the Constitution has been elaborated in number of cases which includes the supremacy of the Constitution, the rule of law, judicial review under Article 32 and 226, secularism federalism, unity and integrity of the nation, freedom and dignity of the individuals, the principle of equality, equal justice, social justice etc.
Article 1 of the Constitution of India declares India to be Union of States as specified in first schedule to that Constitution. According to Schedule I to the Constitution which contains the lists of States and Union Territories, the State of Jammu and Kashmir is included therein to be part of India. The same position is reported in section 3 of the Constitution of Jammu and Kashmir which declares the States of Jammu and Kashmir to be integral part of the Union of India. Any effort to create doubts with regard to the integration of J&K with India are contrary to Section 3 of the Constitution of J&K and Article 1 of the Constitution of India which will not be a valid argument to say that the J&K State is part of India only because of Article 370.
It is intriguing to note that the Article 35-A which is of such a significance has not been kept in the body of the main Constitution but is still existing in to the Schedule to the Constitution behind the discerning eyes of the readers, by way of design or otherwise and as such has been less commented despite the fact that it is a tool of oppression which has been created under Article 370.  It is this hidden Article which has created a situation of dividing the citizenry of India into two classes, of permanent residents of J&K and the persons who are not permanent residents of the State of J&K. Article 370 has in fact given rise to number of situations for injustice to the residents of Jammu and Kashmir and has proved to be a stumbling block in the way of the progress of the J&K State at par with other States of the Union. It is because of Article 370 that 42nd Amendment to the Constitution of India is not applicable to the State of J&K as the same has not been adopted by the State Legislature resulting in an anomalous situation whereby the tenure of State Legislative Assembly is 6 years whereas in rest of the country the life of the Legislative Assembly is 5 y ears only. Article 35-A and Article 370 have been used for considerable long period of more than six decades to deny the rights to the people of J&K and has created a divide within the State of J&K by creating classes of oppressors and oppressed which demolishes the basic concept of democracy and responsible governance. The injustice done anywhere is threat to justice done everywhere   and more so in the present case where the fallout of Article 370 and Article 35-A is not only within the State of JK but even outside it.
Unka Jo Kaam hai woh Ahle Siyasaat Jaane
Mera Paigam Mohabbat Hai Jahan Tak Pohanchay
(The author is an advocate)

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