Article 370: Genesis, Context and the Way Forward

Article 370 of the Indian Constitution is one of the most debated topics in Indian polity. The reason for it lies in the fact that it gives temporary provision with respect to the State of Jammu and Kashmir, unlike most other Indian state. While the clear wordings of the article in the India Constitution is “Temporary Provisions with respect to the State of Jammu and Kashmir”, few citizens groups on the other side of the debate claim that Article 370 gives ‘special’ status to the State of Jammu and Kashmir and hence the sui generis character of it must be maintained. Contrary to the popular perception, Article 370 was never intended to invest any “special status” on Jammu and Kashmir.  It was, as Arun Shourie notes in ‘A Secular Agenda’, “a device for extending provisions of the Constitution of India a step at a time to Kashmir.” It was to be used until a Constituent Assembly of the State could be constituted and could do that job in one go.

The present article attempts to go into the genesis of Article 370, the context in which was inserted and being used in the Indian Constitution and suggest a possible measure to amend it suitably.

Debates on Article 370 in the Constituent Assembly

On October 17, 1949 the floor of the assembly was thrown open to debate the Draft Article 306-A. On the question of privileges given to the State of Jammu and Kashmir Maulana Hasrat Mohani asked the President, “Why this discrimination, please?“. To which N. Gopalaswamy Ayyangar replied, “The discrimination is due to the special conditions of Kashmir…Part of the State is still in the hands of rebels and enemies.” referring to the  tribal invasion. He also said that the accession was offered by the Maharaja and it was accepted by the Governor General of the time. He had a copy of that document before him. It was an absolutely unconditional offer and that Jammu and Kashmir would indeed be a part of India. The Instrument of Accession signed by Hari Singh was no different from that signed by other rulers of princely States. It required the Princely States to surrender their sovereignty on three subjects – Foreign Affairs, Defence and Communications. In fact, when in 1949-50 the “Policy of Gradual Assimilation” was being laid down and Article 370 drafted Prime Minister Sheikh Abdullah did not raise any objection.

Article 370 was always intended as “temporary provisions” (it says so right in the title). Even Nehru famously said on one occasion that the Article would over time be eroded and eventually disappear altogether.

Temporary, not Special

Article 370 was adopted by the Constituent Assembly in 1949 and dubbed in the marginal note as “Temporary” Provisions with respect to the State of Jammu & Kashmir” and figured in Part XXI on “Temporary and Transitional Provisions, unlike Article 371A, 371B , 371C , 371 D , 371 F , 371 G , 371 H , 371 H which are explicitly special provisions.

Since the Instrument of Accession signed by Hari Singh was no different from that signed by other rulers of princely States and it required the Princely States to surrender their sovereignty on three subjects – Foreign Affairs, Defence, and Communications, it clearly gave no ‘special’ status to the state. The temporary provisions existed only till the Constituent Assembly of the State of Jammu & Kashmir was convened and the constitution of the state came into force.

On February 15, 1954 the Constituent Assembly of Jammu & Kashmir unanimously ratified the state’s accession to India. Constitution of Jammu & Kashmir was drafted which came into force on January 26, 1957. Part II, section (3) of the constitution states ‘The State of Jammu and Kashmir is and shall be an integral part of the Union of India’. his section cannot be legally amended as per provisions of Part XII of the constitution. This clearly leads us to the fact that Article 370 became otiose as soon as the Constituent Assembly of Jammu & Kashmir unanimously ratified the state’s accession to India. Section 5 of the  Constitution of Jammu & Kashmir reinforces this argument further, which is discussed in the following paragraphs.

Under Article 370(3), it further clearly lays down that “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification.” Hence the President by public notification declare the provision to be inoperative or operative only with exceptions and modifications, provided there were recommendations of the Constituent Assembly, which does not exist. Therefore clearly the said provision is clearly otiose

Constitution of Jammu and Kashmir

Furthermore, the Constituent Assembly which framed the Constitution of Jammu and Kashmir, in its Article 5 stated that “The executive and legislative power of the State extends to all matters except those with respect to which Parliament has the power to make laws for the State under the provisions of the Constitution of India.” In other words, it implies that both Union and Concurrent lists in terms of the Constitution and all powers are applicable. And hence Jammu and Kashmir becomes like any other Indian state – including the power to extend the application of all laws.

The definition clause under Article 2(1)(a) of the Jammu and Kashmir Constitution becomes irrelevant as we read Article 5 of J&K Constitution in conjuncture with Article 73 of the Indian Constitution which states

Article 73: Extent of executive power of the Union (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend

(a) to the matters with respect to which Parliament has the power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by    the government of India by virtue of any treaty on agreement: Provided that the           executive power referred to in subclause (a) shall not save as expressly provided      in this constitution or in any law made by Parliament, extend in any State to      matters with respect in which the Legislature of the State has also power to make         laws.

And hence, after the dissolution of the Constituent of Assembly of Jammu and Kashmir had unanimously ratified the accession of the state to India, the President is not bound by the concurrence of Constituent Assembly in the light of Article 5 of the Constitution of Jammu and Kashmir.

Conclusion

It has been a view held by some nationalists that in the absence of Constituent Assembly of Jammu & Kashmir since it has become functus officio that the President of India can make changes with Article 370 as per his power laid down in the article and declare this provision inoperative.

However, my submission is slightly different in that I hold that-

1. After the passing of Article 5 of the Constitution of Jammu & Kashmir , there is no need even for the President to give assent as the article itself makes Jammu and Kashmir like any other state of India in terms of Union-State relationship.
2. With the dissolution of the Constituent Assembly of Jammu and Kashmir, the entire Article 370 is now otiose. There is no restriction on the President of India to consult the Constituent Assembly applying the doctrine of res judicata (functus officio).
3. That all provisions of the J & K Constitution are subject to the Indian Constitution and the status of the J & K Constitution is the same as an ordinary statute of any state including any attempt to restrict the application of the Indian Constitution by interpreting provisions of the J&K Constitution as qualifications to the application of laws and the constitution of India.

The author Shubhendu Anand is a lawyer, practicing primarily in the Supreme Court of India. He loves to read and write about law, politics, and religion. You can reach him @BBTheorist