Article- 370

During 2014 election campaign, PM aspirant of BJP rejuvenated the discussion and debate of Article - 370, which grants a special status to the state of Jammu and kashmir. 

Later, newly appointed MoS Dr. Jitendra Singh, who belongs to the state of Jammu and Kashmir made a comment that the PM is determined to remove the controversial Article. 

Then, must absurd comment came from the CM of Jammu and Kashmir, who said, "In the future, either there will be Article-370 in the constitution or Jammu and Kashmir in India". 

Sri Ram Madhav of RSS rightly replied saying Jammu and Kashmir is not ancestral property of the CM. be this article in the Constitution of not, Jammu and Kashmir will always remain an integral part of India. 

Now when the debate has been started, lets put the Article and discuss what it is. 

Below is the complete text of the Article-370

For those who want to know reality of Article -370

Below is the complete text of Article - 370 

Temporary Provisions with respect to the State of Jammu & Kashmir

1. Notwithstanding anything in this constitution:

(a) The provisions of Article 238 shall not apply in relation to the State of Jammu & Kashmir.

(b) The power of Parliament to make laws for the said state shall be limited to

(i) those matters in the Union List and the Concurrent List which in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State and

(ii) Such other matters in the Said Lists as, with the concurrence of the Govt of the State, the President may, by order specify.

1. Explanation. For the purposes of this Article, the Govt of the State means the person for the time being recognized by the President as Maharaja of Jammu & Kashmir acting on the advice of the council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifty day of March 1948.

(c) The provisions of Article (1) and of this Article shall apply in relation to this State;

(d) Such of the other provisions of this Constitution shall apply in relation to that State Subject to such exceptions and modifications as the President may by order specify;

Provided that no such order which related to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (1) shall be issued except in consultation with the govt of the State.

Provided further that no such order which relates to matters other than those referred to in the last proceeding proviso shall be issued except with the concurrence of the Govt of the State.

(2) If the concurrence of the Govt of the State referred to in para (ii) of Sub Clause (b) of Clause (1) be given before the Constituent Assembly for the purpose of framing the Constitution of the State is concerned. It shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding the anything in the foregoing provisions of the article, the President may, by public notification, 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 notify.

Provided that the recommendation of the Constituent Assembly of the State referred to in Clause (2) shall be necessary before the President issues such a notification.

Here are the key points - 

1. This is a Temporary Provision

     A temporary provision, means the founding fathers of the Constitution did not intended to keep the provision for ever. It indicates, some day or other Article - 370 is bound to be abolished, without affecting the Union of India including the state of Jammu and Kashmir. 

    So, when now some one claims that abolishing Article - 370 will pave ways of separation of Jammu and Kashmir, either he is misinformed or is spreading dis-information. 

2. Abolition by Notification of the President of India

    The most important part of the Article is Clause 3, that states, it can be removed just by a notification by the President. For this no concurrence of the Parliament is required. 

The point of debate is the Sub-Clause-3 of the Article, that says "recommendation of the Constituent Assembly of the State referred to in Clause (2) shall be necessary before the President issues such a notification".

The Constituent Assembly as referred to in Clause (2) of the Article is - "the Constituent Assembly for the purpose of framing the Constitution of the State". And the Constituent Assembly now cease to exist. 

Here I would like to quote the extracts from the article written by J. Sai Deepak, published on Centre Right India - 

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Here’s the interpretation of the Proviso and I will try to keep legalese to the minimum:

Rule 1: One of the cardinal principles of legal interpretation is that every word used in a provision must be given its due and no word must be rendered redundant.

Rule 2: Further, legal instruments/legislations are typically consistent in their choice of words.

Rule 3: Purposive interpretation must be resorted to, if, based on the express words used, the conclusion is hyper-technical and therefore impractical or not plausible.

Rule 4: Each time the Constitution is amended, the Parliament assumes the role of a “Constituent Assembly” since it re-constitutes the Constitution. This applies to J&K’s constitution and its “parliament”/Legislative Assembly as well which is governed by the Constitution of Kashmir, 1957.

Let’s apply these rules to the Proviso to Article 370(3).

1.  Applying Rule 1, the reference in the Proviso is to the “Constituent Assembly of the State referred to in clause (2)”, and not to merely “Constituent Assembly of the State” or “State Legislature”. Why is this important? This is important because Clause 2 makes a reference to “Constituent Assembly for the purpose of framing the Constitution of the State” i.e. the Assembly as it existed when the Constitution of J&K was being drafted/framed, and not to the State Legislature as it exists today.
2. Applying Rule 2, the Constitution uses the word “State Legislature”/”Legislature” wherever it makes a reference to the State Assembly. However, in contrast the Proviso to Article 370(3) uses the phrase, “Constituent Assembly of the State referred to in clause (2)”. Therefore, it could be plausibly argued that under the Proviso to Article 370(3), the reference is not to the State Assembly as it exists today, and consequently the President does not need the recommendation of the current Assembly of J&K to repeal Art.370 by a public notification.
3. Further, the Proviso does not envisage a situation where the President needs to seek the consent of the “Constituent Assembly” after the Constitution of J&K comes into force since there would not exist a “Constituent Assembly”. However, applying Rule 4, after the framing of the Constitution of J&K, the “Constituent Assembly” could again come into being when the State’s constitution is sought to be amended. This calls for application of Rule 3. If the purpose of the Art 370(3) is to abolish article 370 and therefore to put an end to the very existence of the Kashmir’s Constitution, could it be logically and plausibly argued that the “Constituent Assembly” of that State comes alive to repeal/abolish its own Constitution? In other words, does the Proviso require the J&K state assembly to assume the avatar of a Constituent Assembly to abrogate its Constitution? I am not sure this is a plausible or conceivable argument to make given that the language of the Proviso makes a clear and express reference to ““Constituent Assembly for the purpose of framing the Constitution of the State”. 

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3. Abolition of Article-370 mean Separation of Jammu and Kashmir by virtue of Clause 1(c)

    Many, including the CM of Jammu and Kashmir believe and argue that, Article - 1 of the constitution of India, is applicable to Jammu and Kashmir only because of the provisions of 370 (1)(c). If the said article is abolished from the Constitution, Jammu and Kashmir will no more be a part of India, as there will be no provision left in the Constitution in this regard. 

   What the miss out here is that,  Article I of the Constitution of India describes the territorial jurisdiction of the Union of India and forms the bases for all other instrumentalities created by the Constitution of India. In one respect, therefore, Article I is more sacrosanct than any other provisions of the Constitution of India.

    Article I is an independent constitutional instrument, which does not depend upon Article 370; in fact, instruments created by Article 370 depend upon the provisions of Article I. Evidently Clause 1 (c) of Article 370 is redundant and reiterates the fact which is already accomplished by Article I of the Constitution of India Article 370 describes a jurisdiction which is temporary and transitional. The provisions of Clause 1 (c) of Article 370 do not prejudice the nature of Article I in its application to the State and in case Article 370 is abrogated, the applicability of Article I will not be affected. In such an eventuality the Jammu and Kashmir State will be immediately placed, at par with the other States comprising the Indian Union and brought within the purview of the provisions of the Constitution of India, including those pertaining to the Constitution of the States. The Constitution of the State will simultaneously be set aside and its instruments will cease to be operative in the State.

    In this regard, one must not forget to see section 3 and Section of 147 of the Constitution of Jammu and Kashmir. 

Sec-3

The State of Jammu and Kashmir is and shall be an integral part of the Union of India.

 Sec 147

An amendment of this constitution may be initia-ted only by the introduction of a Bill for the pur-pose in the Legislative Assembly and when the Bill is passed in each House by a majority of not less than two-thirds of the total membership of at the House, it shall be presented to the Sadar-i-Riyasat for his assent and, upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that a Bill providing for the abolition of the Legislative Council may be intro-duced in the Legislative Assembly and passed by it majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting:

Provided further that no Bill or amendment seeking to make any change in:

(a) this section;

(b) the provisions of the sections 3 and 5; or

(c) the provisions of the constitution of India as applicable in relation to the State;

shall be introduced or moved in either house -of the Legislature.

Hence, the link of Jammu and Kashmir with the union of India is not Article-370 or the Constitution of India, but the Constitution of Jammu and kashmir itself.