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Mainstream, VOL LII No 29, July 12, 2014

Why Article 370 Should Not Be Abrogated

Monday 14 July 2014

by Simple Mohanty

Despite its overtly moderate positioning over development in these elections, the BJP manifesto still panders to its Hindutva constituency by promising to build the Ram temple in Ayodhya and abrogate Article 370. However in the past, when in power, the NDA Government steered clear of actually diluting Article 370, despite the BJP’s well-established stand on the issue. With a Modi- led government in place, there are strong reasons to make a plea for the continuation of Article 370 guaranteeing its constitutional sanctity.

Constitutional Significance

The makers of our Constitution have accorded a special position to the State of Jammu and Kashmir considering the unique history of its accession, in effect making its accession conditional on its institutional autonomy. Initially the State acceded in three subjects only as provided in the Government of India Act 1935, namely, (a) Defence, (b) External Affairs and (c) Communication, in respect of which the Dominion Legislature was empowered to legislate. Apart from this, the State enjoyed a complete residual sovereignty. An agreement arrived at between the two governments made it clear that the autonomy of the State regarding all other subjects outside the scope of the Instrument of Accession should be preserved. As a result of this agreement, through a special constitutional arrangement evolved by the Constituent Assembly (Draft Article 306A), a special status was accorded to the State by the Indian Parliament by the adoption of Article 370 on October 17, 1949. None other than Sardar Patel had been instrumental in forging this special status of Jammu and Kashmir, as Nehru had been away in the United States then.

Article 370 of the Constitution of India embodies six special provisions of the State. First, it allows the State to have its own Con-stitution. Secondly, it restricts Parliament’s power to the three subjects mentioned earlier. Thirdly, the President was empowered to extend to the State other provisions of the Constitution in order to provide a federal framework. For this mere consultation with the State Government sufficed if they related to matters specified in the Instrument of Accession. Fourthly, if other constitutional provisions or other Union powers are to be extended to Kashmir, the prior concurrence of the State Government was required. Fifthly, even if that concurrence alone did not suffice, it had to be ratified by the State’s Constituent Assembly. Finally, Article 370 (3) empowers the President to make an order abrogating or amending it. But the recommendation of the State’s Constituent Assembly shall be nece-ssary before the President issues such a notification.

Thus it follows that the power of the President of India to extend the Constitution of India to the State was never indefinite. It had to stop the moment the State’s Constituent Assembly drafted the Constitution for the State and finally determined which extra subjects were to be conferred on the Union and what other provisions of the Constitution of India were to be extended to the State. Therefore the power of the President to extend ceases once the State’s Constituent Assembly finalised its scheme and disbanded. The bottomline of this argument is that the Centre cannot unilaterally abrogate Article 370. It needs the concurrence of the State Legislative Assembly, now that the State’s Constituent Assembly does not exist.

Judicial Cognisance

The finality of the State’s Constituent Assembly in the matter of the constitutional relationship between the State and Union of India has also been endorsed by Justice A.S. Anand. According to him, “The temporary nature of Article 370 arises because the power to finalise the constitutional relationship between the State and the Union of India has been specifically vested in the State’s Constituent Assembly. The Constitution of India clearly envisaged the convening of a Constituent Assembly for Jammu and Kashmir State and also provided that whatever modifications amendments or exceptions
that might become necessary either to Article 370 or to any other Article in the Constitution of India in their application to the J&K State were subject to the decision of that Assembly.”

J&K’s uniqueness is even recognised by the Indian Supreme Court. In 1984, in Khazan Chand versus the State of Jammu and Kashmir, the Court unambiguously held that the State has a “special place in the constitutional set-up of the country”.

Autonomy, a Realistic Way Out

Autonomy, short of azadi, within the framework of the Indian Constitution, offers a realistic solution to the Kashmir tangle. Hence as several experts have argued autonomy should not be anathema to the BJP. Far from being a dirty word, it spells hope and healing to the people of Jammu and Kashmir—whichever region of the beleaguered State they belong to. It has been argued in some quarters that the people of Jammu and Ladakh are not in favour of autonomy of the State and would like to be integrated to the rest of the country. But is this a true reflection of the sentiments of the people of Jammu? Or does it reflect a hijacking of the grievances of Jammu (which are directed as much against New Delhi as against the Kashmir-centric State leadership) by vested interests? After all, the idea of autonomy for Jammu and Ladakh within the larger autonomy of the State has hardly ever been given a fair trial, although supported by secular Jammu-based political leaders like Balraj Puri and Ved Bhasin. Scholars like Reeta Chowdhary Tremblay and Amitabh Mattoo also plead for this model of autonomy within autonomy as a befitting answer to the tangled web that is the Kashmir problem. The regional issue can no longer await the solution of the Kashmir dispute; otherwise the situation would explode as it did during the Amarnath land agitation of 2008.

As has been duly observed in academic circles, there is no contradiction between greater autonomy for the State and a greater integration of the State into the national mainstream. In fact, it is only the former that can pave the way for the latter in the natural course of affairs, in the true spirit of cooperative federalism.

Emotional integration of Kashmir is more important than legal or administrative integration. Emotional integration can happen only when past misgivings are buried; when the government acknowledges that wrongs have been committed in Jammu and Kashmir and repairs the damage done by changing tack. Mere harping on the physical and legal integration of the State misses the wood for the trees and betrays a policy that values the land over the people. Any talk of abrogation of Article 370 will further alienate the people of Jammu and Kashmir.

The author is an Assistant Professor is Political Science, Shaheed Bhagat Singh College, University of Delhi.