President of B.J.P. Rajnath hascalled for a debate on why Article 370 of the Constitution should not beabrogated. One wishes he had sought this enlightenment before including theprovocative item of abrogation of Article 370 in B.J.P. Election Manifesto.
Apart from legal angle, Togadia’shate Speech against Muslims and politically dishonest attempt by B.J.P. andR.S.S. leaders to paper it over, would by itself alone be a justificationenough for retention of Article 370 in Muslim Majority State of J & K.
On August 15th 1947, whenIndia became independent, J&K was not a part of its territory. It was onlyby the Instrument of Accession, dated 27.10.47, signed by the Maharaja ofJ&K that the state acceded to the Dominion of India. By clause 3 the Maharaja accepted that the matters specified inthe
schedule are the matters with respectto which the dominion legislature may make laws for the State of J & K. Theinstrument further provided that the terms of instrument shall not be varied byamendment of the Act. or of the Indian Independence Act, unless such amendmentis accepted by the Maharaja. The instrument also clearly laid down that nothingin the instrument shall be deemed to commit the State in any way to theacceptance of any future Constitution of India.
This Instrument accepted only alimited number of matters, Defence, External Affairs, Communications, as thosewith respect to which the Indian legislature could make laws for J&K. Thisspecial relationship of J&K found its reflection in Article 370 of theIndian Constitution which laid down that notwithstanding anything in theConstitution, the powers of the parliament to make laws for the State shall belimited to those matters in the Union List and the concurrent list, which, inconsultation with the Government of the state, are declared by the president tocorrespond to matters specified in the Instrument of Accession, and suchother matters in the said lists with the concurrence of the State, thepresident may by order specify.
Thus by virtue of Article 370parliament can legislate for J&K on matters other than those mentioned inthe instrumentbut only after obtaining the concurrence of the State ofJ&K. (emphasis supplied) Thus J&K has a special status, unlike theother States in India where Parliament can legislate on its own on subjectsmentioned in the Union and concurrent lists.
It is no doubt true that Article370(3) provides that the President may by notification declare that thisarticle shall cease to be operative, but the proviso clearly lays down alimitation that the recommendation of Constituent Assembly of the State shallbe necessary before the President issues such a notification. It is notdisputed that the Constituent Assembly of J&K has never given any suchrecommendation. In that view, Article 370 cannot be withdrawn by Parliamentpurporting to exercise the power of amendment given by Article 368. That thepower to amend the Constitution is not totally unfettered admits of no disputesvide the famous case of Keshvanand Bharthi, (1973) where Supreme Court held thata “Constitution like ours contains certain features which are so essential thatthey cannot be changed or destroyed”.
There is also nothing very special inlaying this limitation in Article 370. Even Article 368 limits the Parliamentto make any amendment of the Constitution which would result in a change in anyof the lists in the Seventh Schedule, such amendment shall also require to beratified by the legislatures of nor less than half of the States.
Under our Constitution Governors areonly formal heads of state and have no powers at all in the administration ofthe state which is vested in the Cabinet. But yet by Constitutional AmendmentAct 1956, Article 371 provides for special responsibility of the Governor forestablishment of a separate development for Saurashtra and kutch (in Gujarat) and Vidharba inMaharashtra for equitable allocation of funds for development of the area. Noobjection by BJP has been raised which curtails the power of Gujarat ChiefMinister Modi while there is not such limitation on the Chief Ministers inother States.
Article 371G introduced byConstitution (55th Amendment Act 1986) provides that no Act ofparliament in respect of ownership and transfer of land shall apply to theState of Mizoram unless the legislative Assembly of State of Mizoram by a resolutionso decides. This provision is identical to
Article 370 of the constitutionregarding J & K. B.J.P. was a party to above amendment. Why does BJP applydouble Standard in the case of Muslim majority State of J & K.
Even in U.S.A. such is the width ofState autonomy that an Advocate getting his law degree from WashingtonUniversity can not as a matter of right practice in State of New York. No onehas suggested that this is endangering the unity of U.S.A.
Recently in the Election fever evenCongress seems to have been entrapped when it also gave an Election promise toseparate Ladakh from the territory of J&K and even give it a separateLegislative Assembly. This is the most provocative suggestion, which can onlyinflame the sentiments of people of J&K against India, apart from the factthat it is not legally possible because J&K legislature will never give itsconsent, as provided by Article 370.
It needs to be appreciated thatretention of Article 370 is a matter of self respect and honour and assertionof its distinct identity for people of J&K. Can not BJP, even when most ofParties in J&K are desirous of finding a lasting solution, be statesmenenough to give up its opposition to Article 370-– which no Kashmiri can possiblyagree to abrogate because it is a matter of preserving his special identity.
Faced with this reality, anypolitician must realize that all talk of abrogation of Article 370 is moonshineand a non-issue. It is also a very sensitive matter touching the credibility ofour secular professions and the justifiable fears of the minorities. With allthis, when it is also patent that abrogation of Article 370 is not legally andconstitutionally competent, is there any moral, political or logicaljustification to keep up this empty noise? I submit there is none.