By Ashwini Upadhyay
Article 370 was lapsed in 1957. Its existence is against the dictum of “one constitution one national anthem and one national flag”
Part-XXI of the Constitution is related is Temporary, Transitional and Special Provisions and Article 370 is part it. It is written in the Constitution itself that Article 370 is a temporary provision and maximum life span of proviso of the Article 370(3) was only till the existence of Constituent Assembly of J&K. It can be clarified from perusal of the Constituent Assembly debates and Article 370(3) itself. Hence, as on today, it is illegal and unconstitutional. In addition, it is arbitrary and contrary to the fundamental rights viz. equality before Law, equal protection of law, equal opportunity in public employment, right to establish educational institution, right to trade /business, right to own property, right to know etc. guaranteed under Articles 14, 15, 16, 19 and 21 of the Constitution. Similarly, the Constitution of Jammu & Kashmir is invalid mainly for the reason that the same has not yet got the assent of the President, which is mandatory as per provision of the Constitution.
From the perusal of Article 370 as a whole, it becomes crystal clear that the said provision was valid only till Constituent Assembly, ratified the instrument of accession or till framing the Constitution of Jammu & Kashmir, in consonance with Constitution of India. Therefore, Article 370 deems to be lapsed in 1954, when it ratified accession or maximum in 1957, when Constituent Assembly of Jammu & Kashmir dissolved. It is pertinent to mention that as per provision of Article 370 read withScheduleIoftheConstitution andevenasper provisionofConstitutionofJammu & Kashmir, the State is an integral part of India. The Supreme Court has held that Constitution of India is Supreme andIndia isa sovereign Country, not the State of J&K. It is needless to reiterate that from the perusal of heading of Article 370 itself, it is amply clear that the said provision is a temporary arrangement only. So, the Supreme Court can declare Article 370 manifestly arbitrary.
The continued existence of Article 370 violates the structural sanctity of the Constitution and is in effect a fraud on the suprema lex. Part XXI of the Constitution was specifically designed in a manner to facilitate the transition of a fledgling democracy with federal constituents into a true ‘Union of States’, with a centric bias, that is to say that the federal structure of the Constitution tilts strongly towards the Central Legislature and the Central Government. Certain special features of Article 370 are immediately discernable which posit the said Article in a unique position which was carefully balanced to ensure that the supremacy of the Constitution of India is never undermined, even as though certain provisions were sought to be made which may have temporarily come in conflict with the remainder of the instrument. First, Article 370 is one of those handful of constitutional provisions which begins with a non-obstante clause to the entire Constitution; secondly, the said provision was included in a special Part which was then titled ‘Temporary and Transitional Provisions’; thirdly, the marginal note to Article 370 clearly spells out the intent of theconstituentassembly toformulate thisArticle onlyas“Temporary provisionswith respect to the State of Jammu and Kashmir”; fourthly, and significantly the provision had envisioned a sunset clause and condition for it to be rendered as a ‘temporary provision’; and fifthly, the sunset clause/condition for the provision as incorporated in Article 370(3) alsosignificantly beginswith a non-obstante clause to the remainder of the Article. What is significant in the structure of Article 370(3) is that its opening words with a non-obstante clause causes that provision to be governing over even the other clauses of Article 370.
The continuing and purportedly perennial existence of Article 370 along with a separate Constitution for the State of Jammu and Kashmir is rendered anomalous also in light of the fact that practically the entirety of the Constitution of India (as it stood on 20-06-1964), with certain modifications and amendments, has been extended to the State by virtue of the Constitution (Application to Jammu
Kashmir) Order, 1954, as had been amended from time to time, with the concurrence of the Government of the State of Jammu and Kashmir.
It is beyond any pale of doubt that at the time of its drafting, the intent behind incorporating a special provision for the State of Jammu and Kashmir was necessitated in light of the then prevailing social and political conditions, and more relevantly the Instrument of Accession as entered into between the Union of India and the then Ruler of the State. Clause 7 of the said Instrument of Accession dated 26.10.1947, pertinently read: “7. Nothing in this Instrument shall be deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangement with the Governments of India under any such future Constitution.” Therefore, it was imperative to find a legal solution for the true integration of the State and its people with the Union of India. Chronologically, after the execution of the Instrument of Accession, the next subsequent event in the course of the chequered relationship between the State and the Union of India, came to be the adoption of the Constitution of India along with Article 370. Pertinently at the time of adoption of the Constitution, there existed no Constituent Assembly for the State of Jammu and Kashmir which was only to be set up more than a year later by a Proclamation which also indicated that the Constituent Assembly was to be on the basis of adult franchise.
It is in this background it had become important to entrench the applicability of the Constitution of India to the State of Jammu and Kashmir, through Article 370, since its application was not a direct sequitur of the Instrument of Accession. The exercise of Presidential powers in the manner provided in Article 370 was thus the available route through which the centrality of the Constitution of India could be preserved. It is in pursuance of this that various Constitution Orders (C.O.) came to be promulgated from time to time, of which, the final one being C.O. 48 (as amended from time to time) vide which practically the entirety of the Constitution of India (as it stood on 20-06-1964), with certain modifications and amendments, has been extended to the J&K.
The smooth extension of the Constitution to all its federal units being the intent of the framers of the Constitution behind enacting this particular Article, which per necessity is temporary and transitional mandate, the provision was thus provided with a sunset clause/ condition in Article 370(3). Thereby the President of India was empowered to inter alia declare the particular provision i.e., Article 370 to cease to be operative. However, the said power was hedged by the proviso to the Article, where under, the President could exercise the said power granted in the principle provision of Article 370(3) only upon a recommendation to that effect by the Constituent Assembly of the State of Jammu and Kashmir.
Crucially, Article 370 commences with a non-obstante clause, thereby paving the path to make wide ranging modifications (plausibly also in derogation of provisions of the Constitution of India) in the provisions of the Constitution in its application to the State of Jammu and Kashmir. Further, Article 370(3) commences with a second non-obstante clause which is a rider on everything that may be provided under the other provisions of Article 370 itself. Therefore, a cumulative reading of the two non-obstante clauses leads to the inescapable conclusion that Article 370(3) would be governing in the scenario of a conflict between an exercise of powers by the President under that clause, as posited against the Presidential powers under the remaining provisions of Article 370 of the Constitution.
The careful positioning and phrasing of Article 370 with its deployment of twin non-obstante clauses, therefore amplifies the full extent of the powers of the President, in connection with the application of the Constitution including the provision of Article 370 to the State of J and K, geared towards the gradual and appropriate integration of the erstwhile kingdom of Jammu and Kashmir with the
Union of India. This cherished objective of softly handling the process of integration of the State shall be dealt a death blow in the circumstance it is to be caused that the special provision of Article 370 shall continue in perpetuity, which in any case was never the intention of the framers of the Constitution as is plainly evident from the structure, positioning and phraseology of the Article in question.
A further structural sequitur of Article 370 of the Constitution is that the said provision was never intended to outlive the duration and life of a constituent assembly which may be framed for the State of J and K. The above is borne by the fact and the specific wording of the proviso to Article 370(3). While the proviso hedges the exercise of power by the President of India with regard to Article 370, it specifies that the presidential power under clause (3) could only be used upon a “recommendation of the Constituent Assembly of the State referred to in clause (2)”. Referring back to clause (2) of Article 370 it is clear that the Constituent Assembly of the State mentioned in the proviso to clause (3) is one which is for the purpose of the ‘framing the Constitution of the State’. Therefore, once such a Constitution has been framed, a constituent assembly within the meaning of proviso to clause (3) cannot be further instituted for any other purpose.
Although an amending body (a legislature whether of the Union or a State) is reposed with constituent powers to effect an amendment to a Constitution, a constituent assembly, which has the primary power to frame a constitution cannot be reconvened after the dissolution ofthe body which possessesthe said primary power. The power to amend a constitution under the procedure provided in any such instrument is only a derivative power and no constituent assembly is required for the same. Therefore, a rigid constitution (like the Constitution of India – with its inherent mechanism of amendment) does not envisage a circumstance of reconvening of a constituent assembly once its mandate is fulfilled. Further, that the Constituent Assembly of the State of J&K has been dissolved, there is no other such constituent assembly which can be even convened because of the phraseology of Article 370(2) and 370(3) read cumulatively. The Constituent Assembly envisaged under the proviso to Clause (3) is only one which is ‘for the purpose of framing the Constitution of the State’, which now once framed, there is no foreseeable circumstance in which the same can be reconstituted for any purpose whatsoever.
The direct effect of the above is that through this backhanded sleight, an attempt is sought to be made to evergreen the provision of Article 370, which is anomalous for the three reasons: (i) It curtails the wide powers of the President of India to exercise her powers under Clause (3) of Article 370. (ii) The proviso is thus made to govern the principle provision, that is to say, it creates the anomalous circumstance whereby, by rendering the proviso otiose, the substantive power under the main clause i.e., Article 370(3)has been put incold storage in perpetuity; and (iii). Eternal perpetuation of a provision through a sleight, when the said provision was ex facie intended to be temporary is a massive fraud on the Constitution of India. Each of these three mentioned grounds shakes the structural sanctity of the Constitution of India, in connection with the relationship that the Centre shares with the constituent States of the Union. That having done away with Article 238 of the Constitution of India, there is no discernable rationale sans any other textual indication in the Constitution itself for having different categories of the States within the Union. Of course, it is admitted, that the decision to exercise the powers under Clause (3) to Article 370 shall rest upon the executive wisdom which in turn shall be predicated on social and political necessities, the power however, must remain reposed with the President and the same cannot be denuded through the medium of the proviso to that provision.
Part XXI of the Constitution contains three types of provisions, (i) temporary ones – Articles 369, 370 and 373; (ii) transitional ones – Articles 369, 372, 373, 374,
375, 376, 377, 378 and 392; and (iii) special ones – Articles 371, 371A-J and 378A. It is noteworthy, that the Part as was adopted in 1950 only contained temporary and transitional provisions. It is in this matrix, the legislative history of the provision elucidates that Article 370, as originally promulgated was only a temporary provision and was never meant to be an everlasting and eternal special provision. It cannot be countenanced that while multiple amendments have been effected to the Part by the Parliament, the provision of Article 370has been retained without material alteration and therefore, there cannot be an implicit interpretation that Article 370 has now converted itself into a ‘Special Provision’. The provision itself with its nuances and the history of Constitutional Orders issued under it, undermines any such interpretation and the same necessarily has to be eschewed.
The constitutional structure is so envisioned that all its provisions are intended to play in a symphony of the individual notes that independent provisions strike. When a limb of government in exercising itspowers,seeks touse anyprovision in a manner which is designed to circumvent constitutional safeguards and when it seeks to operate the constitution in a manner, which is contrary to and in direct collision of the original course, the same has to be regarded as a fraud on Constitution of India. It is a truism in law that what cannot be done directly may not be attained indirectly either. The evergreen-ing of the provision of Article 370, contrary to the explicit intent of the original Constitution and that too without bringing about any amendment to the provision itself, is a subterfuge of sanctity of constitutional structure.
What is crucial in the instant matter is that the Constitution had envisaged that the President would have to take into account the situation existing in the State when applying a provision of the Constitution and such situations could arise from time to time. There was clearly the possibility that, when applying a particular provision, the situation might demand an exception or modification of the provision applied; but
subsequent changes in situation might justify the rescinding of those modifications or exceptions. Such power of the President extended through the non-obstante clause to Article 370(3) to the entirety of that Article. However, present manner of short circuiting the amplitude of the President’s powers under the said clause of Article 370 is illegal and cannot be countenanced by the Supreme Court.
The continuance of two parallel constitutions one for the State and one for the Union, reeks of a weird dichotomy inasmuch as narrated above most of the provisions of the Constitution of India has already been extended to the State of Jammu and Kashmir vide C.O. 48 as amended till date. To further exacerbate the complexity of the situation the Union of India had entered into an agreement, popularly referred to as the Delhi Agreement of 1952, which sought to settle certain issues between the Union and the State of Jammu and Kashmir through an ad-hoc mechanism. However, what is noteworthy is that the Delhi Agreement, 1952, does not find any mention in the Constitution of India or the Constitution Orders passed by the President of India under the powers of Article 370 of the Constitution. Therefore, this particular instrument i.e., Delhi Agreement 1952 is an entirely extra-constitutional and does not inspire any confidence in terms of legal matrix of the relationship between the State of J and K and the Union of India. Furthermore, certain clauses of the Delhi Agreement 1952 are not in consonance with the Instrument of Accession or the Constitution of India and therefore, must be declared to be unconstitutional being ultra vires the Constitution of India.
The injury caused to the public because Article 370 is arbitrary and contrary to the fundamental rights viz. equality before the Law, equal protection of law, equal opportunity in public employment, right to form association, right to establish educational institution, right to trade /business, right to own property, right to know etc. guaranteed under Articles 14, 15, 16, 19 and 21 of the Constitution of India. The
maximum life span of Article 370 of the Constitution was only till the existence of Constituent Assembly. It can be clarified from perusal of the Constituent Assembly debates and Article 370 clause (3) itself. Hence, as on today, it is illegal and unconstitutional. The Constitution of Jammu & Kashmir is invalid mainly for the reason that the same has not yet got the assent of the Hon’ble President, which is mandatory as per provisions of the Constitution of India.
From the perusal of Article 370 as a whole i.e., Clauses 1, 2 and 3, it becomes clear that the said provision was valid only till constituent Assembly, ratified the instrument of accession and/or in alternative till framing the Constitution of Jammu & Kashmir, inconformity with / in consonance with Indian Constitution, with approval of the President. The Constituent Assembly was not in operation on the day of coming into force of the Indian Constitution i.e. 26.01.1950. So, Article 370 deems to be lapsed in 1954, when it ratified accession or maximum in 1957, when Constituent Assembly of Jammu & Kashmir dissolved.
It is also pertinent to mention that as per provision of Article 370(3) read with Schedule I of the Constitution of India and even as per provision of the Constitution of Jammu & Kashmir, the State of Jammu & Kashmir, is integral part of Union of India. This Hon’ble Court has held that Constitution of India is Supreme and India is a sovereign Country not the State of Jammu & Kashmir. It is pertinent to mention that interpretation of Constitution must be purposive to achieve the object sought. From the perusal of title of Article 370 itself, it is amply clear that the said provision is temporary / interim arrangement only.
Even the President cannot declare the Article 370 operative, because it can be done only with the consent of the Constituent Assembly. It is pertinent to mention that “temporary Provisions means a provision made for short prescribed period or in absence of prescribed period, the same exist/continue till happening of certain event / finishing of some known job, which is bound to happen in near future. So, in present case, harmonious and purposive interpretation of Article 370 may satisfy the requirements to achieve avowed object, would be to keep the same temporary not to make the same perpetual / permanent.
From the above stated facts it is very clear that Article 370 was lapsed with dissolution of J & K Constituent Assembly on 26.01.1957. The Constitution of Jammu & Kashmir is against supremacy of the Constitution of India and contrary to dictum of “One Nation One Constitution One National Anthem and One National Flag”; The Constitution of Jammu & Kashmir is arbitrary, unconstitutional and void for being violative of Articles 14, 15, 16, 19, 21 of the Constitution.
—The writer is BJP Spokesperson and Advocate, Supreme Court