BJP, Kashmir and Article 370

Zahoor Hussain Bhat

It is impossible to think of abrogation. It can’t be amended by taking recourse to the usual provision of amendment provided by the Constitution of India

At the time of partition of Indian Subcontinent, India was conceived as a federation of States. Upon the creation of the independent Dominion of India, the princely States of the erstwhile British India were offered the choice to join either the Dominion of India or the Dominion of Pakistan.

A third alternative of remaining independent of the two Dominion was also offered by the Dominion Power. In case of Jammu and Kashmir the Maharaja of Kashmir signed the Instrument of Accession to the Dominion of India. Under this Instrument, he surrendered the jurisdiction of three subjects-Defence, External Affairs and Communications. This action of the Maharaja was endorsed by the premier Political Party of the State, National Conference. The accession of the State thus established and was given legal and constitutional validity and sanction by the incorporation of Article 370 in the Indian constitution which defined the State’s special relationship with India.
The State is yet to recover from 2010 shock that has consumed its economy and lives. Now the BJP desires to set the Valley on fire again. The plan to hoist tricolor at Lal Chowk by BJP Youth Wing Bharatiya Janata Yuva Morcha’s (BJYM) has already started a war of words with separatists, the Chief Minister Omar Abdullah sees it as an unnecessary provocation. Ironically BJYM Chief Anuraj Thakur said, “Tensions were created because of stone pelting incidents. Many soldiers of the country were wounded. Was there no tension then? We are hoisting the flag for national integration. We want Article 370 to go and Jammu and Kashmir to be fully integrated with India.” This clash is nothing but of egos.
BJP may hoist the tricolor at the historic Lal Chowk but it is impossible to think of abrogation of Article 370. Article 370 can not be abrogated or amended by taking recourse to the amending provisions of the Constitution which apply to all the other states because Article 368 has a proviso that says no constitutional amendment “shall have effect in relation to the State of Jammu and Kashmir” unless applied by order of the President under Article 370. That requires first the concurrence of the State government and subsequent ratification by its Constituent Assembly.
Article 370 of the Constitution is reproduced for the readers;
370. Temporary Provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything in this Constitution.
(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to;
(i) those matters in the Union list and the Concurrent list which, in consultation with the Government of the State, are declared by the President to correspond to matter specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matter with respect to which the Dominion Legislature may make laws for that State;
(ii) such other matters in the said lists, as, with the concurrence of the Government of the State, the President may by order specify.
Explanation: For the purpose of this article, the Government of the State means the person for the time being recognised by the Presidents the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948;
(c) the provisions of article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subjects to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of the clause be 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) 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.
A careful study of the text reveals six special provisions for Jammu and Kashmir:
First, it exempted the State totally from the provisions of the Constitution of India providing for the governance of the States. It was allowed to have own constitution within the Indian Union.
Second, Parliament’s legislative power over the State was restricted to three subjects defence, external affairs and communications. The President could extend to it other provisions of the Constitution to provide a constitutional framework if they related to the matters specified in the Instrument of Accession. For all this, only “consultation” with the State Government was required since the State had already accepted them in 1947 by the Instrument of Accession.
Third, if other “constitutional” provisions and other Union powers are to be extended to the State of Jammu and Kashmir the prior “concurrence” of the State Government was required.
The fourth feature is that even that concurrence alone did not suffice. It had to be ratified by the State’s Constituent Assembly. This is often overlooked. Article 370 (2) says clearly: “If the concurrence of the Government of the State be given before the constituent assembly for the purpose of framing the Constitution of the State is convened, it shall be place before such Assembly for such decision as it may take thereon.”
The fifth feature is that the State Government’s authority to give the “concurrence” lasts only the State’s Constituent Assembly is “convened”. It is an “interim” power. Once the Constituent Assembly met, the State Government can not give its own “concurrence”. Still less, after the Assembly met ad dispersed. Moreover, the President can not exercise his power to extend the Indian Constitution to Jammu and Kashmir indefinitely. The power has to stop at the point the State’s Constituent Assembly drafted the State’s Constitution and decided finally what additional subjects to confer on the Union and what other provisions of the Constitution of India it should get extended to the State rather than having their counterparts embodied in the State Constitution itself. Once the State’s Constituent Assembly has finalised the scheme and dispersed, the President’s extending powers ended completely.
The sixth special feature the last step in the process, is that Article 370 empowers the President to make an order abrogating or amending it. But for this, also “the recommendation” of the State’s Constituent Assembly “shall be necessary before the President issues such a notification”.
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