Article 370: It was always a transitory law

The Modi government in a strategic and political move issued a presidential notification to scrap the application of Jammu and Kashmir Order, 1954. It will now be replaced with The Constitution (Application to Jammu and Kashmir) Order, 2019, which derives its legality and authority from Article 370 (3). 

All provisions of the Constitution of India, as amended from time to time, shall apply in relation to Jammu and Kashmir (J&K).  

The government also tabled the Jammu and Kashmir (Reorganisation) Bill, 2019 which splits the state into two Union Territories, namely Jammu and Kashmir with a legislature, and Ladakh without a legislature. 

After dissolution of the Constituent Assembly in 1956, did the power of abrogation of Article 370 vanish? Article 370 mandates accord of Constituent Assembly of Jammu and Kashmir, which has been dissolved. There is no provision to recall a dissolved constituent assembly. 

The intention of drafters, perhaps, was to provide J&K a special status its Constituent Assembly was in existence. 

The Instrument of Accession’s relevance was confined to joining the Dominion that was going to take shape on January 26, 1950. But, the continuation of this transitory provision, Article 370, even after dissolution of Constituent Assembly of J&K appeared only to be a political and electoral device. Hence, the argument that after the dissolution of the Constituent Assembly in 1956, the power of abrogation of Article 370 disappeared, is unjustifiable.  

Is any provision of the Constitution permanent, as is being claimed? Similar arguments were raised in infamous I C Golaknath case (1967) where it was contended that fundamental rights are permanent in nature and cannot be abrogated by Parliament in exercise of its constituent power. 

The only method is that the state must convoke another Constituent Assembly by exercising its residuary powers under Article 248, read with item 97 of the List 1 of Schedule 7, and then that assembly can abridge or take away a fundamental right.

However, this view was discarded by 13 judge-bench in the Kesavananda Bharati case (1973), which ruled that any part of the Constitution can be amended either by variation, addition or repeal except the very essence of it, which was described as basic features of the Constitution. 

Pandit Nehru, time and again, emphasised that while the Constitution was meant to be as solid and as permanent a structure as it could be, nevertheless there was no permanence in the Constitution and there should be certain flexibility; otherwise it would stop a nation’s growth. 

Similar sentiments were expressed by BR Ambedkar, while dealing with draft Article 25 corresponding to the present Article 32. Therefore, when the most sacrosanct provisions of the Constitution can be changed, there cannot be any rationale for Article 370 to claim permanent immunity. 

A Supreme Court bench consisting of Justices Adarsh K Goel and R F Nariman had observed that Article 370 of the Constitution had acquired permanent status through years of existence. There is a difference between something which is permanent since inception and something that has acquired permanency over a period of time.

The marginal note of Article 370 makes it clear that this was a temporary provision and it was only the lack of political will, which allowed it to become permanent. 

Though the marginal note cannot affect the construction of the language used in the body of the Article, if the content is uncertain and ambiguous as in the case of Article 370, the marginal note may be referred to. 

Questions have also been raised about the special status of J&K, vis-à-vis special status of other states. There are ten more states, which have been conferred special status under Articles 371, 371-A to 371-H, and 371-J of the Constitution; however, these states do not enjoy the same status as J&K. 

The intention behind these provisions was to safeguard the interest and aspirations of certain backward regions or to protect and promote cultural and economic interests of the tribal people or to deal with the disturbed law and order in some parts. But they are an integral part of the constitutional framework. 

The power of creating a state or a Union Territory has been vested in the Parliament (Article 3 of the Constitution), which extends to increasing or diminishing the area of any state and altering the boundaries or name of any state. 

However, two checks constrain Parliament’s power to enact legislation for the formation of new states. First, a bill calling for formation of new states may be introduced in either House of Parliament only on the recommendation of the President. Secondly, such a bill must be referred by the President to the concerned state legislature for expressing its views to Parliament. 

The Jammu and Kashmir (Reorganisation) Bill, 2019, which was passed by both houses of the Parliament, required the consent of the government of state, but J&K is under Governor’s rule without any state assembly. This may be a technical legal glitch, when the matter will be scrutinised by the Supreme Court. 

Courts are also expected to and indeed should interpret, considering the expanding needs of society. 

However, converting J&K into a Union Territory is nothing but an act of political immorality. It will not only give the Central government more control over policymaking within J&K, but also give them power to subvert the voice of the people of the state – at any point. 

The intention of the government seems only to make J&K a ‘parasitically dependent’ department of the central government, which would have no control over effective political decision-making.

By making the Lt. Governor the sole and final administrator, the Union government has certainly undermined the democratic ethos and sentiments, which unfortunately constitute the basic structure of the Constitution. 

Author is associate professor of law and registrar, National Law University, Odisha