Dr K L Bhatia
Introduction:
A debate on Article 370 has evoked sharp reactions. There has emerged positive and negative discussion on it, which seems a healthy sign in an open society wedded to democracy. The discussion reflects obsession as well as obstinate mindset of those who were the source of its genesis. What is wrong to have an open ended discussion relating to a vital question of topical importance as to what benefits it has served to the people of the state vis-a-vis the people of India! Why panting over it? An open, fair, free and fearless debate shall, of course, evaporate the soup and sauce of ‘willing to wound but afraid to hurt’ attitude. In my perception a healthy debate shall be a determining factor for good for its abrogation/deletion from the text of the Constitution of India. Let us revisit Article 370, a purely temporary provision, as to what does it encapsulate.
Instrument of Accession and Article 370:
Article 370 was not a part of the draft constitution prepared by the drafting committee headed by Dr. B.R. Ambedkar, which presented it in the Constituent Assembly of India for debate, adoption and enactment. It is a matter of historical truth, and there is nothing pretentious about it, that it was introduced in the Constituent Assembly of India by Shri Gopalaswamy Ayyengar after persistent persuasion by the representatives from the State of Jammu Kashmir, viz., National Conference headed by late Shri Sheikh Mohammad Abdullah, the sole political party at that time, on 17 October 1949 in the form of Article 306A followed by a limited discussion and adopted for inclusion in the text of the Constitution of India the same day.
At the outset, it may be unequivocally stated that Jammu Kashmir is no problem. The problem has been created in Jammu Kashmir by the inclusion of Article 370 as a temporary provision in the textual Constitution of India in its relation to Jammu Kashmir that needs to be revisited and re-examined from geo-strategy and geo-politics perspectives. Had the founding fathers of the Constitution of India farsightedness of geo-strategy and geo-politics, they ought to have desisted as well as restrained from giving birth and berth to Article 370 in the Constitutional language of India. Article 370 is not the bye product of instrument of accession conceived under the Government of India Act, 1935 and the Indian Independence Act, 1947. Accession was made not with the intent to have Article 370, but of JK’s history and traditions demanded the interests of the State in joining the Indian Union and its Constituent Assembly and taking its due integrating status in the constitutional structure of India. Instrument of accession was an action plan for the accession of Indian princely states with the Union of India making it ‘Union of States’ as a step forward for the federalism as a basic structure of the Constitution of India. Instrument of Accession of JK alike other Instruments of Accession aimed at the unity and integration of Union of India – Bharat, paving a way for the future of an Independent Constitution of India applicable to the whole India including the State of JK amongst the Union of States of the Indian Federation
It is clear that the Instrument of Accession was unconditional. The acceding Monarch Maharaja Shri Hari Singh had never used the terms “will of the people’ or “wish of the people” or “plebiscite” or any other condition in the instrument of accession. It was in line with the Government of India Act, 1935 and the Indian Independence Act, 1947. It was compatible with all norms of international law. It was legally and constitutionally beyond any shadow of dispute. It was socially, morally and politically unquestionable. It justified the reasons for belated decision to accede to India. The accession was accepted by the Government of India on 27 October 1947. The accession was with regard to the undisputed geographical and territorial boundaries of the State as they stood in the political and geographical map of the State including POK and COK as on 15 August 1947 and 26/27 October 1947. The accession of Jammu Kashmir State to the Indian Union in terms of Instrument of Accession was an act of legal plenitude. Both the Acts of 1935 and 1947 stand repealed from the statutory books of India (Article 395), and, hence, instruments of accession also stand outside the realm of statutes, and as such a matter of past history, which is a dead history. The act of accession cannot be questioned. If this is questioned on the grounds of its possible illegality, unconstitutionality, then all accessions whether to India or Pakistan would be open to similar objections that may consequentially lead to disintegration inviting a Pandora box of intrigues as well as incongruities of stirring situations.
What does article 370 enjoin ?
It is pertinent to know three important components of Article 370, viz., “in consultation with the Government of the State”, “with the concurrence of the Government of the State”, and “the recommendation of the Constituent Assembly of the State shall be necessary”.
Article 370 contains 3 clauses:
1. Clause 1 provides that provisions of Article 238 of the Constitution of India shall not apply in relation to the State of JK.
* [Paradox: Article 238 originally related to Part B States in the original constitutional language, which was repealed from the Constitution of India by seventh Amendment Act, 1956 as a consequence of States Reorganisation Act, 1956 doing away with Part A, B, C States. Unfortunately, this Article continues to occupy a place in the language of Article 370] !
Clause 1 also stipulates that the power of Parliament of India to make laws for the State of JK shall be limited to
(i) Those matters in the Union List and concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Indian Union, viz., Defence, External Affairs, Communication, and Ancillary.
(ii) such other matters in the said Lists as, with the concurrence of the Government of the state, the President may by order specify, i.e., Central laws in terms of matters enumerated in the Union List and Concurrent List shall not extend to the State of JK without the concurrence of the State Government.
(iii) the provisions of Article 1 (and article 370) of the Constitution of India shall apply in relation to the State of JK.
[Article 1 states that India that is BHARAT shall be the Union of States. Schedule I contains the State of Jammu Kashmir as one of Union of States of the Indian Union; Schedule IV also contains the number of representatives from the State of Jammu Kashmir to the Council of States, i.e. Rajaya Sabha. Article 1 became operative on the date of the adoption of the Constitution of India, 26 November 1949. Accession of the State of JK took place on 26-27 October 1947; JK like other Native/Princely States became an integral part of Indian Federal Democratic Republic on the date of adoption of the Constitution of India, i.e., 26 November 1949].
(iv) such of the other provisions of the Indian Constitution and subject to such exceptions and modifications shall apply in relation to the State of JK as the President may by order specify : Provided that no such order which relates to the matters specified in the Instrument of Accession shall be issued except in consultation with the Government of the State, and provided further that no such order which relates to matters other than those referred to in the Instrument of Accession except with the concurrence of the Government of the State.
[By Constitutional (Application to the State of Jammu and Kashmir) Order, 1950 Article 1 (JK as an integral part of the Indian Union) and Articles 5-11 (Citizenship of India — thus making all permanent residents of JK as citizens of India) were extended and made applicable to the State of JK immediately. Subsequent Constitutional Application to the State of JK Orders 1954, 1962, 1966, 1985 extended provisions of the Constitution of India with such exceptions and modifications, of course with the concurrence and in consultation with the Government of the State, from time to time. The Central Laws (over 370) were also extended and made applicable to the State of JK with the concurrence of the State Government from time to time to bringing the State in the national stream.]
By Constitutional application to the State of JK Order, the President added a new Article 35A in the Fundamental Rights part of the Indian Constitution giving special privileges to the permanent residents of JK, viz, purchase of immovable property within the State; free education and scholarships; and public employment. This addition raises some constitutional questions:
1. Does the President of India enjoy power under Article 370 to add a provision in the Fundamental Rights Part of the Constitution of India?
2. Can the President by Presidential Order create a classification between the citizens of India, i.e., citizens of India on the whole on the one side not to enjoy special privileges and the permanent residents of JK as citizens of India on the other side enjoy special privileges which are otherwise denied to the citizens?
3. Can the President of India exercise constituent making powers under Article 368 by adding Article 35A?
4. Is this power compatible with the constitution spirit, constitution culture and constitution practice?
2. Clause 2 encapsulates that if the concurrence of the Government of the State referred to the matters in the Union List and the concurrent List was given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
3. Clause 3 empowers the President to declare, by public notification, that Article 370 shall cease to be operative or shall be operative only with such exceptions and from such date as he may specify: Provided that the recommendations of the Constituent Assembly of the State shall be necessary before the President issues such notification.
The Constituent Assembly of the State finally adopted the Constitution of JK that was inaugurated on 26 January 1957 duly approved in unequivocal constitutional language the integration of the State of JK to the Indian Union:
Section 3 of the Constitution of Jammu and Kashmir states: “The State of Jammu and Kashmir is and shall be an integral part of the Union of India”.
Section 4 of the Constitution of Jammu and Kashmir further states: “The territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzeranity of the Ruler of the State”.
Section 147 of the State Constitution empowers the State Legislature to amend the Constitution of the State except the amendment of Sections 3, or 4, or 5, or 147 or the provisions of the Constitution of India as applicable in relation to the State.
In the backdrop of the above, the State Legislature enjoying constituent making power under Section 147 of the State Constitution can recommend to the President of India to abrogate, by public notification, Article 370.
OR
The Governor of the State during first six months’ Governor’s rule under JK Constitution can recommend for its deletion/abrogation since legislative and executive powers are vested in the Governor.
The Governor of the State during the operation of President’s rule under Article 356 of the Constitution of India can recommend for its deletion/abrogation and such recommendation can be placed before the Parliament of India and Parliament can play such a role.
Besides, the constituent assembly of the State of JK does not exist, and as such the mention of the language in clause (3) “the recommendations of the constituent assembly” becomes non-operative.
In such eventuality abrogation of Article 370 has to be worked out under Article 368 of the Constitution of India. Will the amending or abrogation or deletion process under Article 368 be with or without the ‘concurrence of’ or ‘consultation with’ the government of the State? It seems to be a legal-political knot. However, it seems that political elites have “… Willing to wound but afraid to hurt” attitude in case of Article 370. Sarkaria Commission while examining the constitutional problems in matters of Centre-State Relationship happened to spell the constitutional problem of Article 370 in the annus mirabilis (remarkable) words: “… we should like to re-emphasize the axiom that every action which is legally permissible may not be unnecessarily burdened or appropriationed from the political stand point”.
Be that as it may, the interim nature of Article 370 permeates the perpetuation of wrongs desisting the development of constitutional morality, constitutional culture and constitutional politics in right perspectives. Article 370 is nothing but creating a sense of alienation, separatism, secessionism, disintegration and destroying the basic structure of the Constitution of India.
Its erasing from the supreme lex would develop the sense of one Nation, common brotherhood, communal harmony, and bringing those to the national mainstream who have had lost sight of national values.
(The author is presently Professor National Law University Jammu)
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