Deletion of Article 370 of the Constitution is impermissible without the consent of the people of Kashmir. A facile and simplistic solution to the Kashmir problem is being offered by one set of political thinkers in the country, namely, repeal of Article 370 of the Constitution. Apart from being unsound political advice, this course is not even constitutionally permissible.
When India became independent in August 1947, Jammu & Kashmir was not a part of India. It was only by the instrument of accession, dated 27.10.47, signed by the Maharaja on behalf of the J & K state, that the state acceded to the Dominion of India. By clause 3, the Maharaja accepted that the matters specified in the Schedule are the matters with respect to which the dominion legislature may make laws for the State of J & K. The instrument further provided that the terms of instrument shall not be varied by amendment of the Act or of the Indian Independence Act, unless such amendment is accepted by the Maharaja. The instrument also clearly laid down that nothing in the instrument shall be deemed to commit the State in any way to the acceptance of any future Constitution of India.
Instrument
This instrument accepted only a limited number of matters- Defence, External Affairs, Communications, as those with respect to which the Indian Legislature could make laws for the J&K . India accepted the accession only when Sheikh Abdullah, the undoubted leader of the Kashmiri people, gave his consent to it. This special relationship of J&K found its reflection in Article 370 of the Constitution, which laid down that notwithstanding anything in the Constitution, the powers of the Parliament to make laws for the State shall be limited to 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 matters specified in the Instrument of Accession, and such other matters in the said lists with the concurrence of the State, the President may by order specify.
In lay terms what it means is that by virtue of Article 370, the Parliament can legislate for J&K on matters other than those mentioned in the instrument but only after obtaining the concurrence of the State of J&K. Thus J&K has a special status, unlike the other States in India where Parliament can legislate on subjects mentioned in the Union and Concurrent lists. It may be that many Central Acts have been extended to the J & K for practical administrative purposes. But it needs to be emphasized that none of them have been extended without the concurrence of the elected members of the J&K Legislature and Government. Thus the argument that there has been any dilution of Article 370 is misconceived. Moreover, the extended laws deal with routine matters.
Central Acts
A list of the Central Acts applicable to J&K will show that all of them are of a routine type, which would have to be enacted by the State Government. In any case, the Press and Registration of Books Act, Payment of Wages Act, the Employment of Children’s Act, Factories Act, Chartered Accountant’s Act, Coal Miners Labour Welfare Act, Essential Supplies Act laws are necessary to meet the required situation in any functioning State administration. I cannot see how by observing these laws, the autonomy of the State has been eroded. Even then if the State Government in J&K wishes to repeal any such law, it can request the Central Government and I can see no difficulty in the Centre accepting this recommendation.
Thus while on the one hand the untenable plea of dilution of autonomy of J&K is put forth as a Kashmir problem, equally if not more serious political
hysteria is raised to the effect that the solution to the Kashmir problem is the abrogation of Article 370. This suggestion is constitutionally impermissible and any talk of it is merely raising a delusion which cannot be effectuated.
It is no doubt true that Article 370(3) provides that the President may by notification declare that this Article shall cease to be operative, but the proviso clearly lays down that the recommendation of Constituent Assembly of the State shall be necessary before the President issues such a notification.
Thus this power of the President is subject to this important limitation. It is not disputed that the Constituent Assembly of J&K has never given any such recommendation. In that view, Article 370 cannot be withdrawn by the Parliament purporting to exercise the power of amendment given by Article 368. That the power to amend the Constitution is not totally unfettered admits of no disputes vide the famous case of Keshvanand Bharthi that the Supreme Court decided in 1973, wherein it has been held that a “Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed”. The Court held the personality of the Constitution must remain unchanged and this necessarily implies that the power of amendment given by Article 368 is subject to implied limitations. The Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution.”
Thus it is well settled that howsoever wide the power of amendment under Article 368, it cannot be so construed as to permit the Parliament to change the basic structure of the Constitution.
A bare reading of Article 370 would show that there is an in-built limitation, namely, the President is incompetent in law to declare that Article 370 shall cease to be operative unless there is first placed before him the recommendation of the Constituent Assembly of the State to that effect.
In the absence of any such recommendation, the President has no jurisdiction to issue any notification. Such is the scheme of Article 370. It is a well-known rule of interpretation that a specific provision prevails over the general. Article 368 will necessarily have to be read subject to Article 370.
Limitation
There is also nothing very special in laying this limitation in Article 370 provided that if any amendment of the Constitution makes a change in any of the lists in the Seventh Schedule, such amendment shall also require to be ratified by the Legislatures of not less than half of the States. Thus even if the Parliament votes for such amendment of the lists, it will be ineffective unless the requisite majority of States also approves. And this is what has been provided by Article 370, namely even if the President, i.e., the Central Government wants to declare that Article 370 will cease to be operative, he has no power to do so, unless the constituent assembly of J&K so recommends beforehand. And for good reason.
Because withdrawal of Article 370 will make such a basic departure of the whole arrangement on the basis of which Kashmir acceded, that such a change can only come with the specific concurrence of the Kashmiri people.
To abrogate Article 370, compliance with both Article 368 and proviso to clause (3) of Article 370 will be essential.
Practical angle
Now consider this matter dispassionately and from a practical angle. The position in Jammu & Kashmir is that, much less a Constituent Assembly which will specially have to be convened, not even an ordinary Legislative Assembly of J&K (even including the one which has been dissolved) will ever recommend the deletion of Article 370 from the Constitution. Article 370 in fact is a compact and a sacred one on the basis of which the people of J & K acceded to India. Article 370 represents the solemn balance of rights
between the people of J&K and India, the fundamental conditions on the basis of which the J&K people accepted the Indian Constitution and these are, therefore, unalterable under the Constitution, except by following the strict procedure laid down in Article 370 itself. Parliament even in its constituent role under Article3 368 has no power to ignore the conditions laid down for modification of Article 370 (namely the recommendation of the J&K constituent assembly) imposed by Article 370 itself. Any amendment in Article 370 without complying with the condition precedent would plainly be null and void.
Faced with this reality, any politician must realize that all talk of abrogation of Article 370 is moonshine and a non-issue. Why must then an insistent noise for abrogating Article 370 be raised day after day? As it is, any talk of abrogation of Article 370 is a very sensitive matter touching the credibility of our secular professions and the justifiable fears of the minorities. With all this, when it is also patent and abrogation of Article 370 is not legally and constitutionally competent, is there any moral, political or logical justification to keep up this campaign? I submit there is none.
Hindustan times 03/05/1990