Talk Point: What are the constitutional ramifications of revisiting Article 370?

Lal Chowk Supreme Court
The Supreme Court and Lal Chowk in Srinagar. Source: Wikimedia Commons

The Supreme Court is revisiting its position on the special status granted by the Constitution to Jammu and Kashmir. For nearly five decades, the court has upheld the controversial Article 370.

The exercise is significant since the ruling Bharatiya Janata Party has officially held the view that the law needs to be reworked. The issue has already created turmoil in the state. From Chief Minister Mehbooba Mufti to opposition leaders, all have been critical of the law being revisited, warning the centre of consequences.

We ask experts: what are the constitutional ramifications of revisiting Article 370? 

The only way Article 370 can go away is by the self-abrogation mechanism — Hakim Yasir Abbas, Assistant Professor, School of Law, University of Kashmir

The decision of the Supreme Court to consider the validity of article 370 of the Indian Constitution has caused a furore across Kashmir’s political spectrum. However, it is beyond the competence of the Supreme Court to consider this issue.

Article 370 itself provides a self-abrogation mechanism, excluding the courts from considering whether the provision has become redundant or not. It is an original provision of the Constitution, which was enacted by the Constituent Assembly of India in an exercise of its supreme, sovereign, unlimited and unrestricted constituent power. The Supreme Court cannot look into its validity in the same way it cannot look into the validity of article 1 or 2 or 3 and so on of the Constitution.

The only way Article 370 can go away is by the self-abrogation mechanism. It identifies the president as the sole authority who can abrogate it, and provides the procedure. But even the president cannot invoke his power unilaterally. He has to take the Constituent Assembly of Kashmir (now non-existent) into confidence.

A legal consideration of Article 370 in a vacuum which ignores its political context will lead to turmoil. A court-based abrogation may lead to geographical integration, but will not facilitate political or socio-cultural integration.

The constituent power of any constitution-making body is the absolute substance, the natura naturans (self-causing activity), from which a Constitution emanates. How then can the Supreme Court, itself the creature of such constituent power, look into the validity of constitutional provisions which have the same origin?

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The very law that created modern India and Pakistan recognized the ruler to be sovereign — Aman M. Hingorani , Supreme Court lawyer, author of “Unravelling the Kashmir Knot”.

The issues presently being raised before the Supreme Court, are in my view, misdirected and untenable. The real question pertains to whether the Indian State is free to disregard Article 370, which reflects the terms of the accession instrument executed by the ruler of J&K in favour of India, and forms the basis for the relationship between the two. The very law that created modern India and Pakistan recognized the ruler to be sovereign. Surely, the terms of accession of one sovereign state (J&K) to another sovereign state (India) bind both, the accession being an Act of State.

The transfer of sovereignty from the ruler to the people of J&K was effected by the elected state Constituent Assembly. The Constituent Assembly was set up by the ruler in 1951 to formulate a separate state constitution; a constitution contemplated by the Indian Constitution itself. Since it was for the state Constituent Assembly to further determine its constitutional relationship with the Indian Union, the question that arises relates to the extent to which other fields of legislation have been ceded by the state Constituent Assembly to the Indian Union.

Significantly, J&K chose not to execute an instrument merging its territory with the Indian Union. However, that has not prevented New Delhi from imposing its will on J&K through executive action by repeated recourse to Article 370(1). This is contrary to the very rationale of Article 370. If such misuse were to be declared unconstitutional, perhaps the process of emasculation of Article 370 could be reversed.

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Article 370 is responsible for preventing the development of Ladakh and Jammu region — Pradeep Kumar, legal team, Jammu Kashmir Study Centre, New Delhi.

There are some misconceptions regarding the scope and extent of Article 370. It was a temporary article, inserted on the premise that it was to serve its purpose during the continuation of an interim government in Jammu and Kashmir, on account of a ‘State of War’ prevailing at that time. Till today the article has temporary and transitional status.

The words ‘special status’ is not in the article at all. Therefore, special status is not given by Article 370, but by the propaganda of vested interests. There is no legal basis for it to be found in Article 370. Furthermore, in the Supreme Court case of State Bank of India versus Santosh Kumar (2016), the honorable judges declared that Article 370 is a temporary article and that the Constitution of Jammu and Kashmir is subordinate to the Constitution of India. The Constitution of Jammu and Kashmir – Section 3 and Section 5 also support the same position.

Apart from politics, it is high time that we the people discuss Article 370, because it obstructs the access to various rights guaranteed by the Constitution of India to the common man. Directly or indirectly, it can be seen that Article 370 is responsible for preventing the development of Ladakh and Jammu region, and for non-implementation of reservation policies. Women also suffer a great deal in matters related to marriage and inheritance. It seems that there is mismanagement in the delimitation of constituencies in the state of J&K; and sometimes J&K state legislation bears semblance to laws that violate the Universal Declaration of Human Rights. These laws evade judicial review thanks to Article 370.

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Repeal of Article 370 will be an act of spectacular bad faith — Alok Prasanna Kumar, Senior Research Fellow, Vidhi Centre for Legal Policy

Article 370 is part of the basic feature of the Constitution, and in my view, cannot be removed even through an amendment. This has nothing to do with Kashmir or how it entered in the Indian Union.

Rather, it has to do with the principle that the Constitution of India is a federal one, where political sovereignty is shared between the Union and the states. Individual states’ borders can be altered and new states created by the Union, but the fundamental nature of the relationship between the Union and the states cannot be altered. This means that the states’ powers and privileges granted under the Constitution cannot be unilaterally taken away by the Union.

Article 370, far from being an exception for Jammu and Kashmir alone, has provided a template that allowed the republic to handle insurgencies that threatened it. It has provided a model where an individual state’s sovereignty is recognized in the Constitution itself, and its particular needs and desires given constitutional recognition. Such special provisions are made for multiple states and regions in Articles 371A to 371J. These special provisions are very much part of the Constitution and reflect the republic’s promises to a diverse range of peoples ranging from the residents of Hyderabad-Karnataka to Nagaland; so that their specific interests will find constitutional protection.

A repeal of Article 370, a provision of this nature, will be an act of such spectacular bad faith that will shake the foundations of the republic itself.

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Any change in the Centre’s position on Article 370 must first be debated in the Parliament — Apurva Vishwanath, Special Correspondent, ThePrint

The debate on whether Article 370 needs to be revisited is as old as the Constitution itself. Even the constituent assembly debated the issue for over five months. Courts, successive governments have grappled with the issue to reach a consensus that has been the settled law for over 50 years now.

Even last year, the Delhi High Court had heard one such case and dismissed it. The same petitioner has now appealed to the Supreme Court. Both the state and the central government agreed that the provision is valid. That legal proposition has not changed. Neither the Supreme Court nor the Union can unilaterally abrogate Article 370.

The Centre’s refusal to file an affidavit on Article 35A that provides special rights and privileges to “permanent residents” of J&K, is mischievous. The Centre says given the issue’s sensitivity, a larger debate is required. Larger debate, if at all, can happen in the parliament.

In India’s unique federal structure, some states are given more rights than others. Article 371 and its subsections make special provisions for Nagaland, Assam, Manipur, Andhra Pradesh, Goa and other states. Any change in the Centre’s position on Article 370 must first be debated in the Parliament. The Supreme Court reiterated that in 2014 and 2015.

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