Author: Siddharth Singh
Publication: Livemint.com
Date: December 4, 2013
URL: http://www.livemint.com/Opinion/9DJhCzpMcvZ6G8ujXSF37L/The-mischief-of-Article-370.html

There is a good case for repealing Article 370. The political reasons for its continuation ceased to exist a long time ago

If one were to list one feature of the Constitution that provokes instant controversy, it has to be Article 370. Listed in part XXI of the Constitution that deals with temporary, transitional and special provisions, Article 370 endows Jammu and Kashmir (J&K) with a distinct legal and political identity endowed with no other state.

 At a rally in Jammu on Sunday, Narendra Modi, the prime ministerial candidate of the Bharatiya Janata Party (BJP), called for a debate on Article 370 on whether it had benefited J&K or not. An instant controversy ensued. Part of it had to do with Modi himself: anything he says is subjected to intense scrutiny, as it should be. But a lot also has to do with the touchy nature of the subject. The article was the product of extraordinary circumstances in which J&K acceded to India; the hopes, and belied hopes, of residents of the state and the fears about secessionism that has prevailed there for a long time now.

Essentially, the article imposes limits on the legislative power of the Union over J&K. There are strict limits to what Parliament can legislate for the state. Special measures are required to extend any ordinary legislation to the state. The state has a separate constitution, something that no other state has. These provisions give a large measure of autonomy to the state. But that is not enough for many. Nothing short of a totally separate identity with the most tenuous links to the Union will satisfy such people. India is unique among countries that have let this separate identity transmute into outright demands for secession. There are examples where groups with different languages and cultures have been assimilated in the country where they are located while preserving their identity. South Tyrol (a predominantly German cultural area in Italy) is one example. There other examples as well. But J&K is in a different class altogether. Pakistan’s continuous interference in the state, mistakes made by New Delhi and a vested separatist constituency make a peaceful solution very difficult.

Demands for repealing Article 370 largely centre on ending this problem.

The original purpose of Article 370 was to give a measure of autonomy and confidence to the people of the state that their way of life and political interests would be safeguarded. Autonomy soon bred a distinct identity and that, in turn, spawned a secessionist ideology. In the conditions that prevail in J&K, a mere mention of the repeal of Article 370 creates an uproar. So when Modi merely hinted at a debate on the subject, the political class in J&K was up in arms.
India’s mistakes in J&K are well-known and have a painful history. Largely, they had to do with the lack of confidence and fear on part of the Union government about the potential loss of the state. In the process, mistakes were made that created a mess that is only being slowly corrected. But that fear remains in the minds of policymakers in New Delhi. A mere hint at changing the relationship between the state and the Union sends alarm bells ringing. This has prevented clear-headed thinking on the subject.

If political reasons for undoing Article 370 are clear, the constitutional path to that end has been complicated by a thicket of interpretations that ultimately serve no purpose. And the constitutional problem is a reflection of the vicious politics of autonomy in J&K.

There has been a fair bit of legal quibbling on the nature of Article 370. Some of these disputes are well-known. For example, technically it is impossible to repeal the article. The simply worded argument for this claim is this: that any amendment or abrogation will require the concurrence of the constituent assembly of J&K, a body that no longer exists. That assembly was dissolved in January 1957 after it finished the task of framing the Constitution of J&K.

This is a fascinatingly corrupt interpretation whose sole political purpose is to ensure a special, distinct status for J&K. The facts are different. Article 370 is a temporary provision of the Constitution. Further, section 3 of the article empowers the President of India to declare that the article has ceased to exist.

So, where is the hitch in repealing Article 370?

The story is complicated but is worth detailing. In May 1954, the President used his powers under Article 370 to extend a number of provisions of the Constitution of India to J&K. Among these was a proviso to Article 368—the feature that allows amendments to the Constitution—which limited its applicability to J&K. That is a red flag waived against any attempt to repeal Article 370.

Again, this is a questionable interpretation. The order is mere executive order that applies to J&K and is not a constitutional amendment. It has no bearing on what exists in the Constitution and what can be amended. There are, of course, limitations to what Parliament can amend. In addition, the Supreme Court through the basic features doctrine has imposed limitations on this power of Parliament. The basic features of the Constitution (for example, the secular nature of the Republic and the separation of powers) cannot be changed. Article 370—a temporary provision—is certainly not a basic feature and as such there ought to be no bar against its repeal.

- Siddharth Singh is Editor (Views) at Mint. Reluctant Duelist will take stock of matters economic, political and strategic—in India and elsewhere—every fortnight.