Article 370: Redeeming the Union

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Article 370 of the Constitution of India has been long a standing impediment in full integration of the State of Jammu & Kashmir into India. The provision has been grossly misused and abused for the benefit of few families and elite in the Kashmir valley who assumed it was their divine right to rule over the State of Jammu & Kashmir. It is worth noting that the Instrument of Accession was signed by the Maharaja of Jammu & Kashmir on 26th October 1947 merging the state into the Indian union. Kashmiri leader Sheikh Abdullah then negotiated the text of Article 370 seeking an iron-clad autonomy for the state which the Indian government did not agree and decided to place Article 370 as temporary, transitionary and special provisions for State of Jammu & Kashmir under Chapter XXI of the Constitution of India.

With the backing of Jawaharlal Nehru & his confidante Gopalaswami Ayyangar, Article 370 was made part of the Indian constitution and came into force 17th November 1952. Further on 14th May 1954, the Government of India under Article 370(1) with a presidential declaration issued “The Constitution (Application to Jammu & Kashmir) Order 1954” through which powers of the Indian state and the rights of its subjects were further limited and constrained by inserting Article 35A. Article 35A over the years became the bedrock of discrimination and drew a wedge between the State of Jammu & Kashmir and the rest of India by denying property rights, employment rights to citizens of India while discriminating between Kashmiri men & women on basis of permanent citizen law.

It is worth pointing out that Dr BR Ambedkar had even refused to draft Article 370 and had told Sheikh Abdullah, “You wish India should protect your borders, she should build roads in your area, she should supply you food grains and Kashmir should get equal status to India. But the Government of India should have limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal would be a treacherous thing against the interests of India and I, as the law minister will never do it”. Since then Article 370 & Article 35A has always been a contentious issue for Jan Sangh & later the BJP has rallied on it for decades. It has to be noted that it was Jan Sangh founder Shyama Prasad Mukherjee who started a campaign in 1953 on Article 370 that “Two Constitutions, Two Head of States and Two Flags cannot exist in India” aiming to fully integrate the state of J&K into Union of India. Article 370 & 35A apart from discriminating against Indian subjects also made sure that parts of the Indian constitution and the majority of Indian laws would not apply to the state of Jammu & Kashmir.

However, from time to time various Indian laws have been applied in Jammu & Kashmir by the President of India with the concurrence of state government under Article 370. Notably off late being GST (Goods & Services Tax), when the J&K Assembly passed Jammu & Kashmir Goods and Services Tax on 07th July 2017 adopting the GST regime through Constitution (Application to Jammu & Kashmir) Amendment Order, 2017 with the ascent of President of India. Subsequently, in February 2019, the Union Government once promulgated Jammu and Kashmir Reservation (Amendment) Ordinance, 2019 to apply SC/ST Reservations to Jammu & Kashmir by a further amendment to Constitutional Order of 1954. Thus over the years Jammu & Kashmir was ever slowly being integrated fully into India however the subjects of J&K were still denied the rights like RTI, RTE, & CAG Audits as Article 370 was proving to impede the application of such laws of India.

Amid growing speculation & fortifications in Jammu & Kashmir in past few weeks, the Government of India under PM Narendra Modi took a historic decision on 05th August 2019 by issuing Constitution (Application to Jammu & Kashmir) Order 2019 i.e. CO No. 272 of 2019 whereby it superseded the Constitution Order of 1954 and applied the whole Constitution of India to J&K. Thus the constitutional order effectively repealed Article 35A ending the discrimination that existed between residents of J&K and non-residents i.e. people from the rest of India. This in effect would now allow Indians to buy properties in J&K, seek employment in state and enjoy equal rights as the locals in the state.

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The Constitutional order of 5th August 2019 repealing Article 35A further added a new Clause 4 to Article 367 which would (a) Replace Sadar E Riyasat as Governor of Jammu & Kashmir, (b) Reference of Government of state to mean Governor of J&K acting in aid and advice of council of ministers & (c) In Article 370(3) Constituent Assembly would be replaced by legislative assembly of the State. In sum & substance, this Constitutional Order issued under Article 370(1) by the President with concurrence Government of Jammu & Kashmir not only repealed Article 35A but also amended Article 370 through Article 367(4) thus raising a mosaic of intricate legal issues. The Government of India also got Jammu & Kashmir Reorganisation Bill 2019 which bifurcated Jammu & Kashmir into two union territories of Ladakh and Jammu & Kashmir (with a legislative assembly). In the newly bifurcated union territories, the central government through Governor shall have primacy amid having law & order under its control thus significantly reducing the powers of legislative assembly as well as UT executive. Thus the combined effect of Constitutional Order of 2019 & Reorganisation Bill would virtually make Article 370 inoperative and scrapping Article 35A in toto.

These radical changes brought about in the constitutional status of J&K will have many legal issues and let us briefly examine them. The first question being can the President Issue Orders under Article 370(1) the answer to this is YES, the President of India is very much empowered to do it as has been done in previous years from 1954 to 1994 to 2017 to 2019. Next question that arises is whether the consent of the Governor means concurrence of the state when it comes to Article 370 when the state assembly has been dissolved or in suspended animation. To this one has to see Section 92 of Jammu & Kashmir Constitution which states in case of breakdown of constitutional machinery in the state the Sadar E Riyasat would be empowered to perform any function of any authority or anybody in the state and make such proclamations, amendments etc acting for and on behalf of the state. To this one would also have to refer to Supreme Court judgement in Mohammad Maqbool Damnoo vs State of Jammu & Kashmir (1972) wherein the SC has held that since explanation 1 to Article 370(1) had ceased to operate because there was no Sadar e Riyasat of J&K anymore; & as per interpretation given in Article 367, Governor of the State of J&K is competent to give the concurrence stipulated in Article 370 and perform any other functions laid down in J&K constitution. Thus it is amply clear than when the assembly is dissolved under President Rule, the Governor of State of J&K can give concurrence to Presidential Order and/or laws so made under Article 370 for the state.

It is worth pointing out over here that the President under Article 356(1)(b) had issued a notification dated 19th December 2018 wherein the powers of the legislative assembly of the Jammu & Kashmir shall be exercised by or under the authority of Parliament. Thus parliament is well within its rights to exercise the legislative power in J&K Reorganisation Act even though the concurrence of the state legislature is not mandatory in reorganizing states under Article 368 read with Article 3 of the Constitution of India.

Another pertinent question that arises is whether the President through an Order under Article 370(1) can amend Article 370(3) through a new clause 4 in Article 367. To this, one would have to refer to the Supreme Court judgement of Sampath Prakash vs State of Jammu & Kashmir (1968) wherein the Constitution Bench of the Supreme Court held that the provisions of General Clauses Act, 1897 shall apply to the interpretation of all articles of Constitution of India including Article 370.

Thus Section 21 of the General Clauses Act, 1897 which states that any Central Act or Regulation which has power to issue rules, order, notification, bye-laws shall include the power to add, amend, rescind any notification, orders, rules bye-laws so issued. Hence the central government following ratio of SC judgements in Samapth Prakash Case (1968) & Maqbool Mohammad Case (1972), gave purposive interpretation to Article 370 and its clauses by adding a clause 4 to Article 367 stating that Sadar E Riyasat would mean Governor of the State and Constituent Assembly in Article 370 (3) be read as Legislative assembly of State which is a natural successor representing the will of the people of the state/UT.

The above legal discussion clearly highlights that while Article 35A has been scrapped in toto and all clauses of Article 370 of Constitution of India as amended by Constitutional Order dt. 05th August 2019; approved by Indian parliament has been revoked and ceased to operate on J&K by the Constitutional Order no. 273 of 2019 issued by President of India under Article 370(3) effective on 06th August 2019. However while removing all clauses of Article 370 under the power exercised in Article 370(3) read with Article 370(1), CO 273 also states an exception to read the newly formed Article 370 stating that ‘Constitution of India as amended from time to time shall apply to State of Jammu and Kashmir, notwithstanding anything contained in any Article 152, Article 308 or any any other article of this constitution, constitution of J&K, any other law in force, document, judgement, ordinance, order, bye-law, rule, notification, custom or usage having full force of law in territory of India or any other treaty or agreement as envisaged under Article 363 or otherwise’. The new Article 370 under CO No. 273 issued on 06th August 2019 applies the whole Constitution of India to State of Jammu and Kashmir while revoking all existing clauses of Article 370 in effect making future amendments to the said article difficult as it would need a constitutional amendment with two-third majority in Parliament giving it a nature of virtual permanency. Thus by cumulative effect of two actions i.e. Constitutional Order and J&K Reorganisation Act the Constitution of India, Indian laws now fully apply to the state of J&K while bifurcation makes them a union territory totally integrating the state with Union of India under the Indian flag & constitution.

The procedure followed by the Government of India is based on sound legal advice to get around impediments of repealing Article 370 which per SC had acquired permanent status by lapse of time & no constituent assembly being there as observed in SBI vs Santosh Gupta (2017). It is worth mentioning that Article 370 cannot be repealed by presidential notification unless the procedure under Article 370(3) is followed i.e. recommendation of Constituent Assembly of the state. Thus central government by these two clever moves has not only scrapped 35A but also revoked Article 370 by a Presidential proclamation under Article 370(3) to that effect after the amendments made through the constitutional order dt. 05th August 2019. It is pertinent to note that the amended Constitutional Order dt. 05th August 2019 satisfied the conditions for revocation and reorganisation act bifurcating the state into two union territories made the termination possible as entity of State of Jammu & Kashmir to which Article 370 applied now ceased to exist.

While legally Jammu & Kashmir is fully integrated with Union of India under One Flag and One Constitution, there is a larger battle which is yet to be won that is to finish extremism from the state and bring development to the people of J&K. In that sense, this step of revoking Article 35A andArticle 370 is historical step correcting a blunder of history as it destroys the very tool which separatists and even the mainstream parties in Kashmir valley use to exploit to their benefit playing into the hands of Pakistan acting as useful idiots for ISI & Pakistani military.

The Government of India following this historical step would need to reconnect directly with people of J&K while pre-emptively countering Pakistani propaganda that would be unleashed to internationalize Kashmir issue. Government of India has categorically stated UNSC resolution has no sanctity or relevance left to Jammu & Kashmir which is an integral part of India and any issue with Pakistan would be bilaterally solved under Shimla agreement of 1972 and Lahore Declaration of 1999. Rather India must now pro-actively push for the solution of POJK (Pakistani occupied Jammu & Kashmir) in bid to integrate it fully with India.

This historical move further deserves applause as it comes at an opportune moment in time when the US is about to leave Afghanistan and is negotiating a deal with Taliban with Pakistan expecting to up the ante of terrorism in Kashmir once again. In one stroke this step has sent multiple messages domestically as well as internationally that India is no weaker and will stand up for its interests, whilst sending a clear message to the world that Jammu & Kashmir is an integral part of India and no outside interference would be tolerated. It is indeed a historical moment when the Republic of India has truly redeemed itself once again as Union of States.

Notes:

  • Gopalaswami Ayyangar, The Man Trusted by Nehru to Draft Article 370 After Ambedkar’s Refusal https://www.news18.com/news/india/gopalaswami-ayyangar-the-man-trusted-by-nehru-to-draft-article-370-after-ambedkars-refusal-2258771.html
  • Full text of “The Constitution of India (Application to Jammu and Kashmir) Order 1954” https://archive.org/stream/TheConstitutionOfIndiaApplicationToJammuAndKashmirOrder1954/E-2227-1954-0111-103041_djvu.txt
  • President Promulgates Constitution (Application to Jammu & Kashmir) Order, 2019 [Read Order] https://www.livelaw.in/top-stories/article-370-which-gives-special-status-to-jammu-and-kashmir-scrapped-146936
  • The Jammu and Kashmir Reorganisation Bill, 2019 Ministry: Home Affairs http://prsindia.org/billtrack/jammu-and-kashmir-reorganisation-bill-2019
  • Government brings Resolution to Repeal Article 370 of the Constitution http://pib.nic.in/PressReleseDetail.aspx?PRID=1581308
  • Mohd. Maqbool Damnoo vs State Of Jammu And Kashmir on 5 January, 1972 https://indiankanoon.org/doc/713534/
  • State Bank Of India vs Santosh Gupta And Anr. Etc on 16 December, 2016 https://indiankanoon.org/doc/105489743/
  • Sampat Prakash vs State Of Jammu & Kashmir & Anr on 10 October, 1968 https://indiankanoon.org/doc/1573666/
  • Cabinet approves the Constitution (Application to Jammu & Kashmir) Amendment Order, 2019 https://www.scconline.com/blog/post/2019/03/01/cabinet-approves-the-constitution-application-to-jammu-kashmir-amendment-order-2019/
  • No Article 370 for Jammu & Kashmir, historic move by Modi govt https://www.indiatoday.in/india/story/kashmir-unrest-amit-shah-parliament-reservation-bill-amendment-artcle-370-1577275-2019-08-05

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