On July 17, 2015, when the J&K HC’s Justices Muzaffar Hussain Attar and Ali Mohammad Magrey, declared that signing of the “Instrument of Accession” with India by Maharaja of J&K not withstanding, “legally and constitutionally” the “sovereignty of J&K remained intact.” Many felt the judgement un-unexciting. However, when another bench of the J&K HC comprising Justices Hasnain Masoodi and Janak Raj Kotwal, on October 12, 2015, ruled that Article 370 of the Constitution of India, “though titled as ‘temporary, transitional and special provisions’, has assumed place of permanence in the Constitution” and that “it is beyond amendment, repeal or abrogation, in as much as Constituent Assembly of the state before its dissolution did not recommend its amendment or repeal”, one found it to be a tad more thought provoking than the verdict of July 2015 on “sovereignty of J&K”. However, since the present judgement, understandably, is likely to be interpreted differently by different political parties, it would be in order to delve slightly deeply into the salient features of Article 370 here.
Although the Article has three parts, we need to emphasise on the first and third parts. The first part limits the “power of Parliament to make laws for the said state” (J&K). Two key words, “consultation” and “concurrence” of the “government of the state” (of J&K) are mandatory for the Government of India to make any law. And the President holds the power, as s/he “may by order specify”. Interestingly, an “explanation” clarifies that the applicable cut off date of Article 370 (1) is March 5, 1948; the Indian Constitution came into effect on January 26, 1950.
The language of part three Article 370 too restricts the constitutional power of federal government as it stipulates, “Not withstanding anything in the foregoing provisions... the President may declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify”. That, indeed, prima facie, gives the President some power. But only momentarily, as this line empowering the President gets drastically curtailed in/by the very next line of Article 370 (3) which says: “Provided, that the recommendation of the Constituent Assembly of J&K “referred to in clause (2) of Article 370 shall be necessary before the President issues such a notification”. In other words, even the President, vide Article 370 (3), cannot exercise his/her power in an unfettered manner.
Thus, three crucial words: “consultation”, “concurrence” and “recommendation” constitute the backbone of Article 370, which mandatorily involve and connect the “state, government and Constituent Assembly of J&K” at every step pertaining to all actions of the Indian state. Today, one does not wish to get into a debate on the J&K high court verdict as to whether Article 370 is “beyond amendment or abrogation” or not, or whether its “place of permanence in Constitution” would stand any future scrutiny of the law or not. Suffice it to suggest that the history of evolution of every law and the system thereof has not been seen or found to be rigid. “Evolution” by implication has always been flexible.
A question can, however, be asked on the heading of Part XXI “temporary, transitional and special provisions” of the Constitution under which Article 370 falls. How “temporary, transitional and special” are the provisions of Part XXI of the Constitution? As long as there is no definite or precise answer originating either from New Delhi or Srinagar/Jammu, Article 370 appears to have a self-propelled shelf life, politics or not. Despite the larger-than-life existence of Article 370 around 200 Central Acts today are applicable to J&K. Beginning October 26, 1947, when “Maharajadhiraj Hari Singh” signed the “Instrument of Accession” with India for only defence, external affairs and communication, is this not a great leap forward? The bottom line, as of now, is that Article 370 unites India with J&K and vice-versa. Since hundreds of federal laws are already applicable in J&K, what is the hurry?
A great achievement by all account? After this, can, or should, anyone really question J&K being a part of India? It is more heartening to note that the J&K high court by its verdict of October 12, 2015, on Article 370 has directly and openly acknowledged the supremacy and sovereignty of the Constitution of India. It virtually nullifies its earlier decision of July 17, 2015, which had claimed “sovereignty” of Srinagar/Jammu, accession of J&K to India in 1947 notwithstanding. In other words, if the J&K high court declares that J&K has sovereignty or is sovereign, then the very existence of Article 370 stands challenged as it implies its non-applicability on J&K.
In juxtaposition, if Article 370 is conceded to (as has been done by the J&K high court vide its order October 12, 2015), as a permanent, or temporary, transitional and special provision, then there is no scope for any confusion on, and conflict between, the jurisdiction, authority and power of the Central and state governments. And that truly, prima facie, marks a landmark verdict of, and by, the J&K high court.
Clearly, therefore, with the unambiguous, focused and pointed reference to Article 370, the legal position of the sovereignty of India and, the connect between Srinagar/Jammu with New Delhi, stands vindicated — despite the prospect of turbulent politics and “issues” raised by sundry fringe elements.
The writer is a Supreme Court advocate
