An act that has put J&K on edge: This repeal will disappoint constitutional purists

The narrative around Article 370 has largely been premised on the argument that it was meant to be a “temporary provision”. This argument draws its basis from the Marginal Note to Article 370, which contain the words “temporary provisions with respect to the State of Jammu and Kashmir”. However, we must remember the place of Marginal Notes in interpreting a statute.

English courts were cautious in using Marginal Notes. On different occasions, they have referred to them as a “most unsure guide to construction” and a “poor guide to the scope of a section”, further stating that “rarely it might throw some light to the intentions of the Parliament” etc.

The Indian Supreme Court too, [for a long time], followed the same approach and refrained from employing Marginal Notes to interpret a statute. The Supreme Court, while interpreting an Article of the Constitution, referred to the Marginal Note, only to get a prima facie clue to the purpose of the Article, and in case of a conflict between the Marginal Note and the main provision, the Marginal Note gives way to the main provision. The approach of the Government to except, modify or amend Article 370 seems to be influenced by the Marginal Note to the Article.

Article 370(3) gives the power to the President of India to declare that the Article has ceased to be operative and is a dead letter of the Constitution. Noticeably, Article 370(3) has a strong ‘proviso’. One of the functions of a ‘proviso’ in an enactment, as stated by the Supreme Court, is to “entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable”.

The proviso to Article 370(3), which states that the President “shall” obtain recommendation of the Constituent Assembly before making such declaration, clearly imposes the mandatory condition on the President of obtaining the recommendation of the Constituent Assembly of Jammu and Kashmir before the power to cause Article 370 to be inoperative is exercised. . The Constituent Assembly of J&K, which was constituted by a proclamation of the Maharaja of Jammu & Kashmir in 1951, was dissolved in 1957 and presently there is no Constituent Assembly.

After the dissolution of the Constituent Assembly, Article 370 ceased to be a ‘temporary provision’ not amenable to modification and exception through a Presidential Order. This contention is best understood, if one reads the article without reading the Marginal note, for the body of the provision does not at all use the word ‘temporary’.

The Constitution Order, 2019 (C.O.272)
The BJP obviously has been reading the Marginal Note of Article 370 with greater emphasis and the main provision with greater disdain and lesser care. The recent developments are an actualization of the longstanding agenda of the BJP, reflected consistently in its election manifestos – including the 2019 one – which stated “…We reiterate our position since the time of the Jan Sangh to the abrogation of Article 370. We are committed to annulling Article 35A of the Constitution of India as the provision is discriminatory against non-permanent residents and women of Jammu and Kashmir…”.

In order to annul Article 35A, a suitable order had to be passed under Article 370(1) and to abrogate Article 370, the President needed to make a declaration under Article 370(3), which he could not achieve without the recommendation of the Constituent Assembly, which no longer exists. The Supreme Court has, on several occasions, returned a finding that Article 370 has become a permanent provision for this very same reason, i.e. it cannot be abrogated anymore as the Constituent Assembly, whose recommendation is a requirement for abrogation, has ceased to exist.

The government of the day has achieved its objective through means that would elicit disapproval from constitutional purists. By the Constitutional Order 272, the Government has superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 – under which Article 35A was inserted – and additionally, has given a fatal blow to Article 370, by replacing the expression "Constituent Assembly” with “legislative assembly” in order to bring about its abrogation,.

Assault on Federalism
The position of Jammu and Kashmir is unique – both within the Union of India and also in the Indian Constitution. Jammu and Kashmir was a princely state that acceded to the Union under special circumstances.

Gopalaswami Iyengar, while moving the draft provision (Article 306A, which was renumbered as Article 370) before the constituent assembly, spelt out those special circumstances. While elucidating the case for special treatment under the constitution, he emphasized that the Government of India had committed that the will of the people of Jammu and Kashmir – expressed through its constituent assembly – would determine the sphere of jurisdiction of the Union over the state.

In the Jammu and Kashmir Constituent Assembly, Sheikh Abdullah cautioned “that any suggestion of altering arbitrarily the basis of our relationship with India would constitute a breach of the spirit and the letter of the Constitution…”.

Article 370, therefore, stands like a constitutional guarantee setting out the terms under which the princely state came to join the Union. Jammu and Kashmir, as a federating unit of the Union of India, joined the Union under the promise recognised by the constituent assembly of India and crystalized by the Constitution of India under Article 370. Altering those promises and modifying the special relationship in the manner that has been done under the constitutional orders is an assault on this particular federal relationship. The Supreme Court of India has recognized federalism as the basic structure of the constitution and the abrogation of Article 370 is destructive of federalism and therefore an assault on the basic structure of the Indian constitution.

Another agenda of the BJP is to ensure the construction of Ram Mandir at Ayodhaya and its members often refer to the creation of Ram Rajya in India. The BJP may like to be reminded that one of the inviolable principles of Ram Rajya is “Raghu kul reet sada chali aaee, prana jayee par vachan na jaaee” (It is the tradition of Raghu’s dynasty, to which Lord Ram belonged, that a promise given is to be honoured, even at the cost of life).

The abrogation of Article 370 is letting go of the promise that the framers of the constitution had made to the people of Jammu and Kashmir.

— The author Ranvir Singh is an advocate, Supreme Court