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A Roadmap for Repeal of Article 370 of Constitution of India

The circumstances in which the provisions of Article 370 ( 306-A in the draft ) of the Constitution was introduced were explained by late Mr. Gopalaswamy Ayyangar( a Minister without portfolio in first Union Cabinet and a former Diwan to Maharaja Hari Singh of Jammu and Kashmir) in his speech while moving the draft Article in the Constituent Assembly

"....I shall briefly indicate what the special conditions are, in the first place. There has been a war going on within the limits of Jammu and Kashmir State. …Part of the State is still in the hands of rebels and enemies….

Again the Government of India have committed themselves to the people of Kashmir in certain respects They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the Impartiality of the plebiscite could be granted. We also agreed that the will of the people, through the Instrument of a constituent assembly, will determine the Constitution of the State as well as the sphere of the Union jurisdiction over the State.”

At present, the legislature, which was known as the Prajasabha in the State is dead. Neither that legislature nor a constituent assembly can be convoked or can function until complete peace comes to prevail in the State. We have therefore to deal with the Government of the State which, as represented in its council of ministers, reflects the opinion of the largest political party in the State. Till a constituent assembly comes into being, only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangements that exist in case of the other States.”

It is clear that the provision were introduced in special circumstances, and linked to decisions taken in future by the proposed constituent assembly of the JAMMU AND KASHMIR. This body was asked to frame the Constitution of JAMMU AND KASHMIR , and also give definite opinion whether JAMMU AND KASHMIR should be part of Indian Union or not. It framed the constitution giving shape to it relation to the Indian Union and also gave unanimous decision that JAMMU AND KASHMIR is and shall continue to be part of India.

Article 370 is a Temporary Provision

As outlined above, the Article 370 of the Constitution of India contains the Temporary Provisions with respect to the State of Jammu and Kashmir. There are a total of 3 Clauses in this Article. Clause (1) deals with the following items.

a. It provides that the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir. As Article 238 itself stood repealed by Constitution (Seventh Amendment) Act , 1956 , this Sub-clause has become in-fructuous and has no more effect.

b. Limitation of the power of the Parliament to make Laws for the State of Jammu and Kashmir- It refers to the Instrument of Accession. According to this Instrument, the Dominion Legislature could make laws for the State of Jammu and Kashmir, only on few matters. Out of these, this Sub-clause limits the power of Parliament to only those which are in the Union List or in Concurrent List and President in consultation of the ‘Government of the State’ declares them to correspond to the matters permitted by the Instrument of Accession. This provision is ‘notwithstanding anything in the Constitution.’ This means, it over-rides the provisions of PART XX Article 368 which has provided for full powers to the Parliament in exercise of its constituent power to amend the Constitution by way of addition, variation or repeal any provision of the Constitution. In fact sub-clause (5) of Article 368 makes it amply clear by using the terminology, ‘for the removal of doubt, it is hereby clarified that there shall be no limitation whatever on the constituent power of Parliament to amend …. the provisions of this Constitution under this Article’

Besides the matters covered by Instrument of Accession and dealt as above, the Parliament can legislate on other matters in the Union and Concurrent List if the President so orders after concurrence of the Government of the State .

For this sub-clause the ‘Government of the State’ means the Maharaja of Jammu and Kashmir. Later, in exercise of the powers conferred by Article 370 the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that as from the 17th Day of November, 1952, the said Article 370 shall be operative with the modification that for the Explanation in Cl (1) thereof, the following explanation is substituted namely.

Explanation - For the purpose of this Article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Minister of the State for the time being in office.”

As regards the applicability of the Constitutional provisions themselves to the State of Jammu and Kashmir, this Article mandates that the Provisions of the Article 1 and Article 370 Constitution of India apply straightaway. Other provisions can be made applicable to the State of Jammu and Kashmir, by a Presidential Order. As per Provisos to the Clause (1), the issuance of these Orders is in consultation or with the concurrence of the State Government depending on the subject matter delineated as above. Had Article 370 not been there, the entire Constitution would have applied to JAMMU AND KASHMIR as in case of any other State of Indian Union.

Clause (2) talks about the Constitution of the State and about the role of the Constituent Assembly of the State, convened for the purpose of framing it. It provides that wherever the concurrence has been obtained before convening of the Constituent Assembly, it (the concurrence) shall be placed before the Constituent Assembly for such decision as it may take. This means that Presidential Orders issued in the meanwhile based on such concurrence were subject to review by the Constituent Assembly of the State.

The Constituent Assembly of the State to frame a Constitution (vide Proclamation of Yuvraj Karan Singh as Head of JAMMU AND KASHMIR State on 1st May 1951) for the State of Jammu and Kashmir was convened on October 30, 1951 and having completed its task of framing a Constitution for the State stood dissolved by its own resolution of 17 November 1956 after it last met at Jammu on 25January 1957 Thus as on today, this Clause has no more implementing force left. To this extent, this sub-clause was really a transitory (and temporary) provision.

Clause (3) provides for the mechanism of making this Article 370, inoperative. It may be done either completely or partially or by modifying the Article by a Presidential Notification after the recommendation of the Constituent Assembly of the State. Two important points to be noted are that this sub-clause requires the existence of the Constituent Assembly of the State, available for consideration of recommendation and secondly that sub-clause does not talk about repeal of the Article but only about cessation of its operation or modification etc. The fact remains that the Constituent Assembly of the State stands dissolved. Therefore this sub-clause cannot be utilized to make Article 370 ceasing to operate or even to modify the Article. In short, this sub-clause cannot be operated.

Thus it transpires that Article 370, a temporary provision to meet the need of the State at that point of time has already become largely inoperable. It should have been made to cease operation immediately when the Constituent Assembly of JAMMU AND KASHMIR had completed its task (Constitution of JAMMU AND KASHMIR was adopted by the Constituent Assembly of JAMMU AND KASHMIR on 17 November 1956) of framing the State Constitution. It is worth noting that Constitution of JAMMU AND KASHMIR clearly lays down (vide its Section 5) that the executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India. Thus the State legislates only on matters in the State list and concurrent list as in case of any other State. Further, it bars (Section 147 of the Constitution of JAMMU AND KASHMIR)introduction or moving of any Bill or Amendment seeking to make any change in the provisions of the Constitution of India as applicable, in relation to the State, in either House of the Legislature. It is only the self-goal committed by the Government of India, by Article 370 which severely limits the legislative powers of the Parliament as well as the President with respect to the legislations concerning the State of Jammu and Kashmir.

It is time the Article is formally repealed. This will be a constitutional step in the right direction to bring normalcy in the area of legislative relationship between Indian Union and its constituent State of JAMMU AND KASHMIR

Appropriate Amending Vehicle

As Sub-clause (3) of Article 370 can no longer be used to repeal the Article itself, we have to look elsewhere for modification or repeal of this Article. As Stated earlier, Article 368 of the preceding part (Part XX) provides full power to the Parliament for amending the Constitution. No where it is laid down, not even in Article 370, that this Article is beyond the amending power of the Parliament. No doubt , concurrence of not less than half of the States is required before the amendment proposal is to be moved in certain portions of the Constitution, like the Election to the office of President, lists in Seventh Schedule, Representation of States in Parliament etc., yet the entire Constitution is subject to the amendment. The only limitation has come so far is on the basis of ‘basic features ‘theory propounded by the SC in Kashvanand Bharathi case. It is beyond doubt that a Temporary and Transitional Provision such as Article 370 , cannot be included in the list of basic features of the Constitution. Therefore amending powers under Article 368 can be utilized to repeal Article 370 of the Constitution. A minor irritant will be the Presidential Orders issued vide The Constitution (Application To Jammu And Kashmir) Order, 1954. According to this Order, Article 368, in it application to the State of JAMMU AND KASHMIR has been modified by adding a Proviso below its Clause (2).

"Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of Article 370.”

My reading is that Article 368 can still be utilized legitimately and legally to repeal Article 370 in its entirety from the Indian Constitution., notwithstanding the fact the Article 370 concerns JAMMU AND KASHMIR. This is because the effect of repeal is that the said Article stands repealed for all purposes and cannot remain alive in relation to JAMMU AND KASHMIR.

Article 1 makes JAMMU AND KASHMIR part of Indian Union and not the Article 370

It is erroneously believed in some quarters that if Article 370 is repealed, our only link to legitimacy in Jammu and Kashmir will vanish. According to them, application of Article 1 is dependent on Article 370. But Article 1 does not need the prop of another Article for it to stand, much less that of a Article 370 which is a temporary and transitory provision The fact is that JAMMU AND KASHMIR is part of Indian Union not by virtue of Article 370 but by the Article 1. It is one of the States in the Union, presently numbered 15, in the FIRST SCHEDULE referred by Article 1. This link is exactly in line with that for other States including the newly carved States like Nagaland (1962) , Jharkhand (2000) and Telengana ( 2014) and newly joined State like Sikkim (1975) as well newly joined Territories such a Puducherry ( 1962).In fact if Article 370 stands repealed, there will be no difference between JAMMU AND KASHMIR and other State. The Indian Constituent applies to the States of the Union because they are part of Indian Union. No separate declaration is required for application of Constitution in any particular Sate. For example when Sikkim joined the Indian Union, the Constitution applied the moment Sikkim was included as Sate of then Union. No separate declaration was made about its application. As on date presence of Article 370 is unnecessary and it only creates ambiguity in Law and an anomalous situation which is exploited by separatist elements.

Continued Validity of Presidential Orders

It is also feared that the Presidential Orders issued so far will be rendered null and void if Article 370, ceases to operate. The facts are otherwise. Once the Order is lawfully issued, it does not require continued nurturing by the sourcing Article for its sustenance. Quoting an example from a parallel field, suppose an Amendment Act amending the Indian Penal Code is passed by the Parliament. The Amending Act when notified and put into effect stands to amend the Code. After this, to continue the Code in the amended form, there is no requirement for Amendment Act to be on the Statue Book. The Amendment Act can be taken off the Statue book by repealing it without any effect on the amendments already made by it. One more view is that absence of Article 370 will close the tunnel (On December 4, 1964, the then Union Home Minister late G. L. Nanda said Article 370 would be used to serve as "a tunnel in the wall" in order to increase the Centre's power) through which Central Legislations were to be introduced in Jammu and Kashmir. But it is forgotten that once the obstructions put by Article 370 stand removed due to its repeal, all the Central Legislations will automatically apply to the State of Jammu and Kashmir as they apply to other States and Union Territories. There will be no need for the device of Presidential Order to extend the Central laws to JAMMU AND KASHMIR.

Validity of State Laws on matters in Central and Concurrent List

Once the Article 370 is repealed, all laws, if any, passed by State Government on matters pertaining to Central List can be questioned on the ground of constitutional validity. Therefore in suitable cases the corresponding Central Law could be made applicable from an appointed date and arrangement made to ensure continuity and avoiding legal vacuum. Similarly the Laws made by State Government on matters in the concurrent list could also be examined for any conflict between that law and corresponding Central Law if any.

‘Basic Structure Theory’ not attracted in Repeal of Article 370

It is expressed in certain quarters that any repeal of Article 370 could be successfully challenged as damaging the basic structure of Indian Constitution. But even a cursory glance on the items included so far in the basic structure by various judgments would belie such fears. The judgment in Keshvanand Bharti Case ( AIR 1973 SC 1461) which invented the Basic Structure theory include

• Sovereignty of India

• Supremacy of the Constitution

• Republican and democratic form of government

• Secular character of the Constitution

• Separation of powers between the three organs of the State namely legislature, executive and the judiciary

• Federal character of the Constitution

• The mandate to build a welfare State contained in the Directive Principles of State Policy

• Unity and integrity of the nation

• Parliamentary democracy

This was further supplemented by Minerva Mills Case to include

• harmony and balance between fundamental rights and directive principles

By no means, deletion of a temporary provision what the Article 370 is, can be shown to be affecting the Basic Structure of the Constitution.

Morality of holding Plebiscite

Plebiscite is mechanism of eliciting opinion of the entire population of a geographical stretch on a question of national importance like choice of Ruler or Government, joining into or seceding from an exiting political territory. The constituent assembly of the State of Jammu and Kashmir was a body with members elected by the subjects of Jammu and Kashmir and was a true representative body. It deliberated on all the three possibilities, whether to remain part of Indian Union or merge with Pakistan or remain independent. It came out with decision that Jammu and Kashmir is and shall always be part of Indian Union. . Art 3 of the Constitution of Jammu and Kashmir specifically provided as under:

"3. The State of Jammu and Kashmir is and shall be an integral part of the Union of India.”

As of now, a part of State continues to be in adverse possession of Pakistan which in turn handed over a portion of it to China. Pakistan continues to wage a clandestine war in JAMMU AND KASHMIR through its agents and insurgents. Thus it is now impossible to hold plebiscite in a free and fair manner any more. The cry for holding Plebiscite has therefore lost all its legitimacy and relevance. Interestingly, while the Constitution of India, provides that the territory of JAMMU AND KASHMIR will be the territory which immediately before the commencement of this Constitution (that is 26 January 1950) was comprised in the Indian State of Jammu and Kashmir, the Constitution of JAMMU AND KASHMIR goes to an earlier date and declares that the territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State. This includes the Pakistan occupied area of Jammu and Kashmir.

While on the question of morality, why we forget that through the same Constituent Assembly (12 October 1949) by way of Article 291 and Article 362, Late Sardar Patel had solemnly assured to the Indian Rulers ( 555 of them) who had surrendered their vast wealth , including 12,000 km of Railway line , without receiving any compensation and signed their Instrument of Accession to Indian Union only to receive roughly 8.5% of their estimated annual Revenue as Privy purse and their rights and Privileges. Only twenty one years later, Late Indira Gandhi repudiated this assurance and abolished (28 December 1971) Privy Purse and Privileges by a Constitutional Amendment repealing the above mentioned two Articles. She dismissed the claim of Princes saying that the concept of Privy Purses and special privileges were incompatible with an “egalitarian social order.” We are certainly on a higher moral ground while moving for the repeal of Article 370, which has outlived its utility long back.


Advocate ,Practicing in Supreme Court

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Category Constitutional Law, Other Articles by - Sharda Prasad