The indeterminate life of Article 370

30 Dec 2015 16:01:06

Arvind Lavakare

What is the time-span of the word 'temporary?' Is it one week, one month, one year or one decade? Judging by the indifference of the National Commission to Review the Working of the Constitution towards 'Temporary, Transitional and Special Provisions' contained in Part XXI of our Constitution, even half a century would seem to justify the label of 'temporary.' Consequently, NCRWC's recommendations to the government early last month didn't contain anything that would disturb the status of Article 370 which — applicable exclusively to Jammu and Kashmir State — has remained a "Temporary" provision right from the time our Constitution became fully effective from January 26, 1950.

This indeterminate life of 'Temporary' Article 370 is in sharp contrast to the 'Temporary' power given to Parliament by Article 369. The latter permitted Parliament to make laws on certain subjects that were otherwise outside its jurisdiction, but this legislative power was to last only for the 'temporary' period specified by the Constitution framers as being of 'five years from the commencement of this Constitution.' However, the 'Temporary' Article 370 — meant for J&K alone — was not given such a straight jacket of time. That conspicuous inconsistency between two 'temporary' provisions of the same Constitution seems to have been bypassed by NCRWC's wise men.

 Now the fundamental reason for an exclusive constitutional Article for J&K state was the Schedule annexed to the Instrument of Accession signed by that state's Maharaja on October 26, 1947. That Schedule specifically provided that the Dominion of India, to which the state had acceded, would be empowered to make laws for J&K only on matters pertaining to defence, external affairs and communications. And clause 7 of the Instrument of Accession itself did not bind the J&K state to accept any future Constitution of India.

The result of that clause 7 was the separate constitution of J&K enacted on November 17, 1956 through an elected State Constituent Assembly. And the outcome of the above mentioned Schedule was Article 370 which, in essence, lays down that

  1. i. Laws of the Indian Parliament relating to matters of defence, external affairs and communications shall apply to J&K state only after consultation with the government of that state
  2. Parliamentary laws on subjects other than those mentioned in the Schedule shall apply to J&K only with the concurrence of the government of that state, and

iii. The provisions of the Constitution of India shall apply to J&K 'subject to such exceptions and modifications as the President (of India) may by order specify.'

The result of the above hard-core of Article 370 has been two-fold. One is that several laws of the Indian Parliament have not been made applicable to J&K although the latter's constitution proclaims through Section 3 that the state 'is and shall be an integral part of the Union of India' — a proclamation that, moreover, is beyond constitutional amendment by the state legislature and one that India stresses, but not often enough, in its dialogue with Pakistan as well as the rest of the world.

As a consequence of Article 370, some important laws of India that are not in force in J&K state are the Indian Penal Code, 1860, the Urban Land (Ceiling and Regulation) Act, 1976, the Prevention of Corruption Act, 1988 and the Religious Institutions (Prevention of Misuse) Act, 1988. This blatant discrimination between J&K and all other states is patently absurd. Whatever the original raison d'etre for such pampered treatment to J&K, it is a colossal failure of the Indian government not to have persuaded J&K state to fall in line over a 'temporary' arrangement; it also represents a cussed obstinacy of the J&K authorities in insisting on preferential treatment even after a 'temporary' period of 52 years. Can you imagine any federal law of the USA not being applicable to any of its 50 states? And remember, several states in the USA also have their own constitution, separate from the American constitution.

On the Constitution side, the position is equally absurd, obnoxious, with regard to J&K. Space constraints do not permit elaboration of the several constitutional provisions which accord J&K a separate, preferential treatment in comparison with the other states of India. Suffice it to say that the sum of these exceptional provisions has led to the conclusion that 'the state (of J&K) has a much greater measure of autonomy and power than enjoyed by the other states.' (Indian Constitutional Law by M P Jain, fourth edition, reprint 1994, Wadhwa & Company, Nagpur, pg. 435).

And yet, we now have Omar Abdullah demanding pre-1953 autonomy for J&K. It is truly 'like father like son;' or, really, like grandfather like father like son. J&K's craze for an ineluctable status in India just does not go, whatever its hopeless economic situation caused by hopeless misgovernance and whatever the severity of grievances of Jammu and Ladakh districts against the overpowering dominance of politicians ruling the Kashmir valley. And remember, Jammu and Ladakh are large districts unlike 'Kashmir' which is neither a town nor a district.

Nevertheless, at least one discriminatory constitutional provision for J&K needs to be juxtaposed with the discrimination of Article 370.

Under Section 6 of the J&K constitution, special rights and privileges are permitted to be granted by law to a category called 'Permanent Residents' — a category that's been constitutionally defined in such a manner that Indian citizens from other states of India and thousands in J&K itself just cannot fulfill that definition. One such privilege allowed by J&K legislation is that of permitting only 'Permanent Residents' to acquire immovable property in the state.

As a result, no private sector industrialist worth the name from outside J&K has set up shop there. There's that case in 1985 when a hue and cry was raised after 32 members of the All-India Services formed a cooperative housing society and got it registered. One accusation was that Article 370 had been eroded. Such indeed was the bitter opposition in the state assembly and elsewhere that the proposal was ultimately dropped — the elite IAS, IPS and IFS cadres of the Government of India had been denied residential plots even as members of a cooperative society.

Further, there are literally hundreds and hundreds of those who have settled down in J&K for years together but are nevertheless ineligible to vote in the election to the state assembly or local bodies and are also debarred from securing employment in certain sectors — all because they are not 'Permanent Residents' as defined by the state constitution.

Other such examples of how Article 370 'suffocates the very idea of India and fogs the very vision of a great social and cultural crucible from Kashmir to Kanyakumari' have been cited by Jagmohan in his book My Frozen Turbulence In Kashmir (Allied Publishers Limited, second updated edition, April 1992).

Jagmohan's book, be it noted, was based on the experience of his two tenures as the governor of J&K while being a civil servant and before he became part of the BJP fraternity. However, it is with the above perspective of his that the BJP has been demanding the abrogation of Article 370. But the Congress and all other self-styled saviours of the nation's minorities have interpreted that demand as being anti-Muslim in the Muslim-majority state; these great pretenders of 'secularism' have never cared to explain how, in the name of Christ or Marx or both, that community stands to lose without the alleged protection of Article 370.

The controversy has been long and belligerent enough to have warranted a serious study of facts and figures by NCRWC. If Jagmohan's analysis was found convincing, the NCRWC should have had the courage to recommend the abrogation of Article 370. And if they had believed that Article 370 had its indelible place in our constitutional framework, the least they could have done was to give our constitution a cosmetic face-lift by converting that Article's 'Temporary' status into one of a 'Special Provision' as has been given to the state of Nagaland (Article 371A), the state of Assam (Article 371B), the state of Manipur (Article 371C), the state of Sikkim (Article 371F), and the state of Arunachal Pradesh (Article 371H).

Instead, NCRWC sat on the fence of silence. It shut out Article 370 altogether, in dereliction of its duty of studying how the ideas of our founding fathers had worked, or not worked, on the ground over as much as half a century of time, and not over a 'temporary' period of one week, one month, one year or even one decade.

Along with its failure to recommend a landmark step forward on the definition of 'secular' in our Constitution's Preamble and on the imperative need to enact a uniform civil code as mandated by Article 44, the NCRWC's inaction on Article 370 represents a hat-trick of victims it claimed during its two-year stint at the crease.

While the separatist psyche generated in Jammu & Kashmir by Article 370 has been pernicious, its constitutional effects have been perverse — an aspect which no one, it appears, has detected, leave alone debated.

Start off with the fact that reportedly the longest constitution in the world — ours — is not exhaustive enough to show the whole constitutional framework of the Indian nation. This is not an irresponsible statement.

Buy a standard book on the Constitution of India and you will find that the constitution of J&K state is not mentioned in it although, it will be recalled, such a separate constitution was enacted on November 17, 1956, because the state was entitled to it under the terms of the Instrument of Accession. The absurd result is that the lay Indian reading his national constitution will not know just what its relation is with the state that is 'an integral part' of his country.

Next, a note of 'explanation' in Article 370 says, 'The Government of the State (of J&K) means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers…' Since the J&K Constituent Assembly abolished hereditary rulership in 1952, what, pray, is the 'maharaja' doing in the Constitution of India in 2002?

A constitutional counsel will stand up and say the 'maharaja' was replaced by 'sadar-i-riyasat' in a presidential order issued under the mandate of Article 370. True, but how can the 'sadar-i-riyasat' be acceptable to the reader in 2002 when there is no such authority but only its equivalent, viz the state governor? Another expert will then tell you that in November 1952 the word 'governor' did, in fact, replace the phrase 'sadar-i-riyasat'. Fine, but why doesn't 'governor' figure in Article 370 of our Constitution that's read in 2002? And do you know who issued that order of replacement? It was the ministry of law! Which country allows a major dignitary of state to be re-named in its constitutional document by a mere bureaucratic fiat?

There's more — and it's not cosmetic. Under Article 370, the President has issued, by last count, 43 orders, each known as 'The Constitution (Application to Jammu & Kashmir) Amendment Order'. Some of them have brought about significant changes in certain provisions of the Indian Constitution in their application to J&K. The list is too long to be detailed here, but the following are two examples from the order that repealed the one of 1950 and came into effect from May 14, 1954:

An addition to Article 3 specifying that 'no Bill providing for increasing or diminishing the area of the State of Jammu & Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State'.

Addition after Article 35 of a new article providing that none of certain specified laws pertaining to J&K's 'permanent residents' (defined in section 6 of the state constitution) shall be void on the ground that 'it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision' of the Indian Constitution's Part III dealing with fundamental rights.

Do you know that both these far-reaching exceptions to the country's constitutional framework just do not figure in the officially published Constitution of India? In fact, none of the contents of the said 43 constitutional orders of the President form part of the official Constitution. Why? The answer will stun you.

In July 2000, this writer purchased The Constitution of India with selective comments by P M Bakshi, a former member of the country's Law Commission. It was the book's fourth edition, published in January 2000 by the reputed firm of Universal Law Publishing Co Pvt Ltd, New Delhi. I wanted to understand the constitutional procedure for bringing about the much talked about demand for trifurcation of J&K.

Actually, I was seeking corroboration of what Dr A S Anand, a former chief justice of India, had stated in the 1998 edition of his book on the J&K constitution. He had mentioned that, with respect to Article 3 of the Constitution of India, 'the status of J&K markedly differs from that of the other states. In the case of other states,' he wrote, 'only the views of their legislatures are ascertained by the President before recommending introduction of a Bill relating to these matters [of altering the boundaries or name of a state], but in the case of Jammu & Kashmir no such Bill shall be introduced unless the legislature of the state consents.'

Imagine my shock when Bakshi's book did not show the above exceptional provision mentioned by Justice Anand. A letter to that effect was sent to Universal Publishing. The reply dated July 15, 2000, of a director of Universal Publishing was unbelievable. It said: 'No change can be made by us in Article 3 of the Constitution, as parliamentary amendment is necessary for amending it. It has been taken from the Constitution of India published by the Government of India. Article 3 in our book is OK.'

A little reflection brought home the above reply's horrifying revelation: the exception to the article mentioned at 1 above had NOT been approved by the country's Parliament! An examination of the 43 constitutional orders issued by the President showed that none of the changes/exceptions made for J&K by orders in his name find a place in the official Constitution of India — not even in the March 2002 economy edition of Bakshi's book. Clearly, none of them had been approved by Parliament.

Clearly, what had transpired was that each ruling government in Delhi had simply dealt with the ruling regime in Srinagar and brought about orders signed by the President of India under Article 370(1)(d) that permits him to specify 'exceptions and modifications' in the provisions of the nation's Constitution in their application to J&K. And all these exceptions and modifications have been in vogue without a green signal from Parliament. In effect, the great, supreme Parliament of India has been hijacked for 50 years and more!

The horror is not over, readers.

The first sentence of Article 368(2) says, 'An amendment of this Constitution may be initiated only by the introduction of a bill for the purpose in either House of Parliament…' But the President's Constitutional (Application to Jammu & Kashmir) Amendment Order, 1954, added the following to Article 368(2): 'Provided further that no such amendment shall have effect in relation to the State of Jammu & Kashmir unless applied by order of the President under clause (1) of Article 370.'

What those 30 words above were doing was to amend Article 368 titled 'Amendment of the Constitution'. And it was being done under the seal of the President without invoking Parliament in any manner whatsoever — in violation of what has specifically been demanded by the above-quoted clause of this Article itself.

Was that action constitutionally correct? NO! Under Article 368(2)(e), any amendment seeking to make a change in Article 368 itself requires not only the commonly known two-thirds majority in each of the two Houses of Parliament, but 'shall also require to be ratified by the legislatures of not less than one-half of the states by resolution to that effect passed by those legislatures before the Bill making provision for such amendment is presented to the President for assent'.

Was the amendment to Article 368 made for J&K by the President's constitutional order of 1954 based on the above-stipulated ratification by the required number of state legislatures? NO! It was, instead, issued exclusively under Article 370 and was therefore a gross constitutional impropriety. In fact, all the 43 constitutional orders must be deemed unconstitutional because they were, as seen earlier, not based on parliamentary approval. It is conspicuous that this constitutional amendment of Article 368 by a presidential order is not in the list of recorded constitutional amendments of 50 years from the first one in 1951.

Seeking refuge in the power given by Article 370 to the President (acting on the advice of his Ccouncil of Ministers) to make constitutional exceptions is itself unconstitutional because Article 370 is applicable only to J&K while 'Article 368 (Power of Parliament to amend the Constitution and procedure thereof)' is a much larger and more supreme provision. If Article 370 overrides Article 368 — as it has done in the last 50 years — it must be altered or, better still, scrapped.

But even scrapping Article 370 does not require Parliament's consent! Clause (3) in the article says, "Notwithstanding anything in the foregoing provision of this article, the President may, by public notification, declare that this article shall cease to be operative … Provided that the recommendations of the Constituent Assembly of the State … shall be necessary before the President issues such a notification." Note that the President's order abrogating Article 370 doesn't need the sanction of a parliament democratically elected by the people of India but demands the push by a J&K institution that's been moribund since the first state assembly election took place in 1957! Can anything be more absurd in the constitutional working of any self-respecting nation?

Sadly, the National Commission to Review the Working of the Constitution didn't have either the capability to understand the position or the courage to recommend what it should have: abrogation of Article 370 or, in the least, its dilution so as to return to Parliament the constitutional supremacy it merits. After its go-by to a definition of secularism and the enactment of a uniform civil code, Article 370 thus became the NCRWC's third failure.

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