Author: Sandhya Jain
Publication: Niticentral.com
Date: October 8, 2013
URL: http://www.niticentral.com/2013/10/08/article-370-undermines-indias-sovereignty-must-be-scrapped-143067.html

The Supreme Court should, in its wisdom, examine the validity and relevance of Article 370 of the Constitution of India in view of the fact that the impugned Article is being increasingly invoked by the Chief Minister of Jammu & Kashmir to challenge the unity and territorial integrity of the nation, and to claim proprietorship over the erstwhile Princely State (as descendant of Sheikh Mohammad Abdullah), possibly on behalf of the failed State of Pakistan.

Even in the light of growing incidents of terrorism in the State in recent months, and particularly the formidable intrusion in the Keran sector where fighting has entered the fifteenth day, Omar Abdullah remains incorrigible in the pursuit of his personal agenda. Asked by the Supreme Court to file a fresh affidavit regarding discrimination in providing relief to victims of the Kishtwar riots of August 9, 2013 on grounds of their being ‘state subjects’ and ‘non-state subjects’ (Indian citizens), the State Government has claimed that Jammu & Kashmir is an exceptional State.

Asserting freedom to conduct its affairs as it pleases, the Jammu & Kashmir Government has told the Supreme Court that, “The Constitution of India (as well as the constitutional scheme there under) do not apply in their entirety to the State of Jammu & Kashmir, but are subject to certain limitations and exceptions.”

This is patently untrue, and contradicts the letter and spirit of Article 1 of the Constitution of India and Section 3 of the Constitution of J&K, and the rationale and objectives of the Constituent Assembly of India.

Section 3 of the Constitution of J&K states: “Relationship of the State with the Union of India: The State of Jammu & Kashmir is and shall be an integral part of the Union of India.” This, read with Article 1 of the Constitution of India, should disabuse Chief Minister Omar Abdullah about his delusions regarding the ‘merger’ and integration of the erstwhile kingdom with the rest of the country.

Article 1 of the Constitution of India asserts, “Name and Territory of the Union: India, that is Bharat, shall be a Union of States. (2) The States and the territories thereof shall be as specified in the First Schedule” Accordingly, the First Schedule lists the State of J&K at Serial number15 which says: “The territory which, immediately before the commencement of this Constitution was comprised in the Indian State of Jammu & Kashmir.” Indeed, it is on this basis that India continues to maintain its claims to Aksai Chin, Pakistan-occupied Kashmir, and Gilgit Baltistan.

As repeatedly pointed out by the State’s beleaguered minority community, on October 26, 1947, Maharaja Hari Singh signed the same Instrument of Accession as other Princely States; this was approved in accordance with the law by the then Governor General of India, Lord Louis Mountbatten on October 27, 1947. This sealed the issue, and hence, no claims of a special political relationship can be invoked by subsequent rulers of the State.

It is against the letter and spirit of the Indian Constitution to claim, as the Government of Jammu & Kashmir has done, that “The constitutional relationship between the State and the Union of India is governed by the relevant provisions of the Constitution of Jammu and Kashmir, read with Article 370 of the Constitution of India and various orders issued by His Excellency, the President of India, under that Article.”

The truth, too often distorted by politicians from the State, is that the Constitution of Jammu & Kashmir is governed by relevant provisions of the Constitution of India and Article 370 therein was always intended to be of temporary nature. Nor is it the key Article that determines the constitutional relationship between the two entities; that position is occupied by Article 1 of the Constitution of India. Senior advocate Bhim Singh points out that the constitution of a State cannot determine the relationship with the Union of India, but the Constitution of India can define the relationship with a constituent State. “A tail cannot wag a dog!”

The temporary provisions of Article 370 were meant for the period of constitutional monarchy in the State of J&K, to tame the Maharaja. On August 20, 1952, the monarchy was ended by passing a resolution in the Constituent Assembly of J&K when the legitimate ruler, Maharaja Hari Singh, was in exile in Bombay (Mumbai). With this, argues Bhim Singh, Article 370 became infructuous and the State of J&K completely merged into the Union of India as whatever conditions were inserted by the Maharaja at the time of Accession were automatically terminated.

This is borne out by the explanation to the impugned Article 370 (1) (b) (ii) which states, “For the purpose of this Article, the Government of the State means the person for the time being recognized by the President as 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 5th day of March, 1948.” It follows that once the Maharaja’s rule terminated on August 20, 1952, Article 370 became redundant. It can and should be deleted from the Constitution.

Further, Article 370 (3) provides, “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.”

This makes it clear that the provision is relevant only as long as the State Constituent Assembly is in existence. Once the J&K Legislative Assembly was constituted by elections in 1957 and the Jammu & Kashmir Constituent Assembly terminated, Article 370 became infructuous.

The Constituent Assembly of India, which framed the Constitution of India, clearly stated that Article 370 was temporary in nature, and for the duration of the monarchy. It does not apply to the Constitutional relationship of J&K with the Union of India, which is defined by Article 1 of the Constitution of India. As for the Constitution of J&K (1956), it is intended to deal only with domestic matters; it too declares that J&K is and shall be an integral part of India. It does not provide for reconstituting a Constituent Assembly for J&K.