By Mashooq Yousuf Malik
Since the Kashmir dispute has taken a ghastly silhouette, the debate on Article 370, thus, has become an issue itself- particularly for the common people of Kashmir. However, it has resulted in a big fallacy among a large-section of the people. Only a minimal percentage of people have the correct notion and idea about Article 370. So this becomes an epic misconception, which, if not cleared, may mislead those who are unaware about the legal technicalities. People mostly believe that Article 370:
Is temporary in nature. And, has served its purpose.
Prevents an outsider to buy any immovable property or to reside in state of Jammu & Kashmir (J&K).
Has been diluted & there, as such, remains nothing in it.
Has put the state of J&K in disadvantageous position.
Can be abrogated at any time by any Government. (E.g., the vote bank propaganda of BJP to repeal the Article 370).
But, this is erroneous, and the position against it, however, is totally different, which I will discuss .The question is, if Article 370 doesn’t deal with the above cases, then, what actually it contains? Is there any such mechanism or threat to abrogate it? And, which law then, restrains or renders the non-state-residents to not acquire any immovable property, in state of J&K? But before these points will be discussed, it may be better to understand the context of Article 370.
“Article 370 is simply a bedrock of constitutional relationship of the State of J&K with Union of India. It is also known as the bridge/gateway connecting the State to the Center. Experts also refer it as the Constitutional provision which contains the gist of ‘Instrument of Accession (IOA)’. This Article is a code in itself. It has attained great significance within the constitution of India… firstly, because it relates State of J&K with India, secondly, it provides the mechanism to govern the constitutional relationship and applicability of different laws or other provisions to the very State.”
Nucleus of Article 370:
It begins with the non-obstentate clause. Put simply, it begins by saying, whatever has been given in Constitution of India, is not applicable to State of J&K.
It says that Article 238 is not applicable to state of J&K.
It further says that Parliament of India can legislate only on those matters, in relation to State of J&K, which have been enumerated in the IOA. Those matters are- Defense, Foreign Affairs and Currency & Communication. Not only this, but, the Government of India, shall seek the ‘Consultation of the State government to legislate on the matters given’.
It also says, if there are any such matters, which aren’t related to IOA, then, by a ‘Presidential Order’ those matters can be enumerated & provisions or laws can be applied, but, the ‘Concurrence of the State government must be first taken’.
It makes only two Articles of Indian Constitution simultaneously applicable to State, Article 1 and Article 370.
Another theme which becomes necessary to figure out is why Article 370?
The answer is simple, yet not known to all. Article 238 of the Indian constitution was used to govern the relation between ‘princely states and the union of India’. This, however, was repealed by the constitutional seventh amendment in 1956. Since the state of J&K has not merged with the Center, thus, there was an immense need to incorporate any other provision which could abridge the state of J&K with union of India. This, ultimately, gave birth to the said provision in late 1947, keeping in view the historical position and instrument of accession (IOA) of the state.
Now, let us come to the aspect of misconception about Article 370.
The first contention is related to its temporary nature. Though, the marginal note attached to it reads the same, some people also are of such belief. But the same is not exact. The J&K High Court in the year 2015 in one of its judgments held that it has become the permanent provision and forms the basic structure of constitution. The reasons are obvious. Clause 3 of Article 370 says, it can only cease to be operative on the recommendation of the Constituent assembly (CA) of J&K. The CA in year 1956 while drafting the constitution of J&K has left it untouched. Apart from this if it ceases to be operative, the position of J&K will revert back to 1950. Hence, in a way will put original IOA into action.
“Neither does it refrain’ outsiders from buying any immovable property, nor does it prevent them to reside permanently in state of J&K”. This all becomes evident and is secured by the Sections 139 & 140 of the J&K Transfer of Property Act. Apart from this it is couched under the two state subject notifications passed by ‘Maharaja Hari Singh’ in 1927 & 1930. All of this has been given the extra layer of protection by the Article 35A of the Indian constitution. Article 35A deals with the ‘saving of laws’. It gives effect to those state legislations which consist of any benefit, privilege or safeguard for its residents. Hence, it is clear that Article 370 deals only with the constitutional relation of the state with the Center and has nothing to do with the other matters.
Article 370 has been diluted which has made it a hollow thing, is a third misconception, which, nevertheless, is not accurate. No doubt certain developments,occurred in terms of Constitution (Application to J&K) Order, 1954 has weakened the scope of the said Article. It must, conversely, be taken into consideration that Article 370 has an overriding effect over other constitutional provisions. That any legal provision, which,although dormant, is still legal or valid and can be, invoked any time, than, that of expressly being repealed or put to an end. Certain politically motivated orders have lamented it, but aren’t able to abrogate it.
It is not disadvantageous to the state of J&K. No doubt it gives the ample powers to the state legislature, which is not the case with other states of India. It must, however, be noted, J&K achieves the feat of special status, thus, the distinctiveness is bound. Apart from this it gives an option of ‘pick and choose’ to the state legislature in terms of application of central legislations. Its provisional nature is a rebuttal to those who are of view that accession of J&K to India is permanent and absolute. Acclaiming that it halts the development of state is not maintainable. Since, it doesn’t restraint the outsiders to hold the business or invest in J&K.
Last thing about Article 370 is its abrogation. Since the ‘CA of J&K’ hasn’t said anything about its annulment in 1957, thus, it is clear that as of now no one is empowered do so. Because, in its Clause 3, it is clearly mentioned that the President of India through a notification can make it inoperative, provided the recommendation of CA comes first. This task of abrogation cannot be taken up by the state legislature. For constituent assembly is different from state legislature. Time and again, Indian judiciary has held the latter being subservient to the former. Or, in a way, it can be said that CA is the ‘creator’ to which legislature is the ‘creation’. Of course, the parliament has power to amend the constitution, but, Article 370 has been put outside the purview of parliament’s power under Article 368. It can be put to an end, provided the CA took rebirth in J&K, which is not possible at all except due to a revolution. And, if such revolution took place, the consequences would be nothing but detrimental to Indian interests.
In conclusion it can be presumed, one must not be ignorant about Article 370. It has become the eyesore of many, which, forces them to trample it but they miserably fail to do so. They are running between the legislature and judiciary. Which is why, currently, there are many writ petitions pending in judiciary against the same provision. In light of above points, I must say that one must possess the first-hand knowledge of this hot subject, particularly those who belong to Kashmir. For it is the way out of the fractured discussions, debates, or casual conversations about J&K.
—The author is a student of LLM at School of Legal Studies, CU-Kashmir. He can be reached at: email@example.com