LawFarm- Advice & Lawyers Online

Share on facebook
Share on linkedin

The Obnoxious Article 370 of The Indian Constitution: Abrogation Is The Way Forward

Is a 3rd year student at W.B.N.U.J.S, Kolkata

“Samvidhan ki dhara 370 ghiste ghiste ghis jaayegi”[1] (Article 370 of the Indian Constitution will gradually erode to oblivion) This statement was made by Mr. Jawaharlal Nehru in the Lok Sabha in 1963 on the assumption that Article 370 was temporarily inserted into the Constitution of India so as to facilitate the integration of Jammu and Kashmir with the Republic of India. Further by incorporating this Article in Part XXI of the Indian Constitution, which is titled ‘Temporary, Transitional and Special Provisions’, it is quite clear that the constitutional makers also wanted that the Article should be abrogated once the aim of integrating J&K with the Republic of India is fulfilled. But today it seems as if this Article has become the eternal reality of the Indian Constitution.

It would be appropriate to start with the history of the genesis of Article 370. After getting independence from the British rule all the 562 princely states in India were returned their rights and independence. Surprisingly both the Cabinet Mission (12th May, 1946) and the British government were clueless about the future of these states and gave no suggestion as to the future course of action. It was Mr. V.P. Menon (the constitutional advisor of the three last Viceroys of India during the British rule) who came up with the suggestion that all the princely states should surrender three basic functions of their state to the Indian government (i.e. defence, communication, and external relations). This led to the inception of the “Instrument of Accession”. This was a form of agreement through which all the princely states were asked to accede to either of the two dominions (i.e. India or Pakistan) and surrender their rights related to defence, communication and external relations. Maharaja Hari Singh of Kashmir faced a dilemma that whether he should accede to India or to Pakistan, as both were geographically adjacent to it. He finally chose India over Pakistan on an assurance by the Government of India that there would be a plebiscite (direct vote of all the members of an electorate on an important public issue) in the near future to finalize the accession.

So, if Kashmir is just another princely state in India, which chose to be the part of the Indian dominion, why is it that a special Article is incorporated in the Constitution, which provides it an unreasonable amount of autonomy? The answer is that on getting independence each princely state had its own Constitution but gradually all the states except J&K accepted the Indian Constitution over its own Constitution. J&K decided to act differently and thus adhered to its old Constitution Act, 1939.[2]This posed a major problem for the Government of India as now it was impossible for it to integrate all the states under a single Constitution. But the government could do nothing as the situation of Kashmir was very delicate and thus they passed a Bill in the Parliament which gave J&K special status in the Indian Constitution. This led to the birth of Article 370.

Now let us discuss some major problems with Article 370. There is a major confusion with regard to the status of Article 370. Some consider it temporary while some others consider it permanent. This problem was caused due to the addition of word “Special Provisions” to the title of Part XXI of the Constitution, as this misled people into believing that Part XXI is a permanent part of the Constitution because it is titled as “Special”. Former Chief Justice of India Mr. Adarsh Sein Anand was one such person who mistook Article 370 to be permanent.[3] It is stated here that the words “Special Provisions” were inserted only to show that Part XXI confers special status to states such as J&K, Sikkim, Assam, Nagaland etc. and such provisions are special as no other state enjoys the benefit conferred by Part XXI. This does not mean that these provisions are permanent as during the inception of the Constitution they were clearly titled as “Temporary”. This assertion is also supported by statements made by Gopal Swami Ayyangar and Jawaharlal Nehru in the constituent assembly during the framing of the Constitution.[4]

Article 370 begins with a non-obstante clause: ‘Notwithstanding anything in this Constitution’ before the main text, which indicates that all the powers given to the state under this Article do not depend on any Constitutional provision. This expression is rarely used in the Constitution and thus in a way gives autocratic powers to this Article.

When it comes to analyzing the Clauses 1(b)(i) and 1(b)(ii) of Article 370, it is clear that they prevent any law of the Parliament from directly applying to the state of J&K. Application of such laws are only possible either through consultation or through concurrence with the state government. Clause 1(b)(i) says that any law of the parliament related to defence, communication and external affairs can only be applied after “consultation” with J&K government. Clause 1(b)(ii) says that laws on subject not related to defence, communication and external affairs can only be applied after concurrence with the state.

Firstly, Clause 1(b)(i) goes against the basic “Instrument of Accession” which J&K accepted. By this what is meant is that ideally there should not be any need for consultation with the J&K government in applying laws related to the above mentioned subjects since the right to make laws on these subjects was already surrendered by the J&K government under the Instrument of Accession.

Further, the J&K government has interpreted the term “consultation” and “concurrence” to mean the same. This means that if consultation with J&K state government, with regard to a law, fails the law will not apply to the state![5] Despite the fact that this assertion of the State government is clearly fallacious, successive governments at the Centre have done nothing to change the status quo.

Moreover, Clause 1(d) of the Article gives the President power to issue orders exempting certain provisions of the Constitution from applying to J&K. All these orders are compiled together to create ‘Constitution (Application to Jammu and Kashmir) Amendment Order’. The most infamous among these orders was the one issued on 14thMay, 1954. It gave the following powers to the state of J&K:

         i.            Residuary powers vested in J&K rather than the Centre, a departure from the norm under the Indian Constitution.

       ii.            State legislature given the power to give special rights to its citizens.

      iii.            The right to have its own flag.

     iv.            General emergency cannot be proclaimed in the state by the Centre in case of internal disturbance.

Among all these powers the second power mentioned above is the most devious as the state has atrociously used it to discriminate between the permanent residents of J&K and other Indian citizens living there. Using this power the state legislature has inserted Article 35A in the state Constitution which discriminates against those who are not permanent residents in matters related to employment, buying immovable property and election. Persons who are not permanent residents cannot vote in the elections to the state legislature. This has created a lamentable condition as some citizens of India living in J&K can vote in Lok Sabha elections but not in state assembly elections! Further Article 35A even gives the state the power to decide the definition of “permanent resident” which it can use to give as narrow a definition as it wants. All these provisions are against the basic structure of the Indian Constitution guaranteeing equal rights to citizens under Article 14 of the Constitution.[6]

But the most startling clause in Article 370 is clause (3) which says that the President, through a public notification, can declare that this Article shall cease to operate and such a public notice shall be valid only if prior to the notification the Constituent Assembly of J&K recommends the same. The inconsistency in this is that the Constituent Assembly of J&K ceased to operate on 15th March 1957 and thus no such recommendation can be given. This means that Article 370 has eternal existence and thus it cannot be abrogated. The same was confirmed by the Supreme Court in the case Sampat Prakash v. State of J&K.[7]

But such an explanation cannot be accepted because of the fact that the primary intention of the legislature while incorporating this Article was to make it temporary and not permanent and thus the first step to be taken is to replace the term Constituent Assembly and insert State Legislature in its place. This is the only viable change which can give some meaning to this moribund clause.

Further, it is important here to know that the word “secular” used in the Preamble to our Constitution is omitted in the constitution applicable to J&K. This is shocking because the Preamble is a part of the basic structure of the Constitution and its non-applicability in J&K possibly makes it a theocratic state.

Further, J&K is the most pampered state in India. It receives 14 times more financial assistance than Bihar and is receiving the highest amount of financial aid as compared to any other state. Despite such heavy expenditure on J&K there is widespread poverty, malnutrition and unemployment in the state. The centre does not have the right to audit or check account registers of the state. Further no directions given by the Reserve Bank of India are applicable on banks in J&K as they are completely governed by J&K bank. All these practices give an open way for corrupt officers and politicians to earn easy money. Thus it can be easily understood as to why political parties in J&K are always unwilling to even debate this matter. It is highly deplorable that even politicians in J&K are not even ready to sort out the matter democratically. Omar Abdullah’s recent comment when Jitendra Singh asked for a debate on abrogation of Article 370 was: “We the people of J&K would like to categorically tell BJP that it is not possible to withdraw Article 370 and any attempt by anyone will be on our dead bodies”.[8]

This speaks volumes about the failure of the Indian government’s policy of “carrots” used to integrate J&K with India. This is the time when “sticks” ought to be used to abrogate this obnoxious Article from the Indian Constitution.

Possibly the best method is to amend Article 370 (using the powers given by Article 368) and remove the necessity that recommendation from J&K Constituent Assembly is essential to revoke this Article since the Constituent Assembly is not in existence. But even then, state concurrence will be required to revoke it and this concurrence can be obtained through the power of political and financial pressure on the state. This is the most viable way forward.

 [1] Statement said by Mr. Jawarharlal Nehru in Constituent Assembly, (1947-1948)

[2]Arvind Lavakare, The Truth about Article 370, Pg. 13.

[3]Adarsh Sein Anand, The Development of the Constitution of Jammu and Kashmir, 1980.

[4]Supra note 2, Pg. 23

[5]Supra note 2, Pg. 28

[6]Id., Pg. 59.

[7] AIR 1970, SC 1118

[8] National Tehlka Daily, Any Attempt to Revoke Article 370 Will Be Over Our Dead Bodies: Omar