Stuck in limbo: Is the repeal of Article 370 scuppered by a mere technicality?

A Division Bench of the Jammu & Kashmir High Court recently held that Article 370 of the Indian Constitution, which grants special status to the state, is “permanent and cannot be repealed or amended”. The bench of Hasnain Masoodi and Janak Raj Kotwal JJ. was hearing a case challenging the reservation benefit in promotions to employees. [Read the complete judgment below].So what does Article 370 say? In essence, it renders the state of Jammu & Kashmir immune to Central Government influence except in matters of defence, external affairs, finance and communications, granting the State Government the power to veto any decision of the Centre in other matters. Suffice to say, Article 370 stands out as an anomaly in the Constitution; the wording of the provision makes it clear that the Legislature at the time intended it to be a transient measure. So why has the High Court taken the stance that its repeal is untenable?.While one may think the honourable court’s view to be problematic, particularly since Article 370 comes under a part of the Constitution which contains “temporary and transitional” provisions, the court has rightly pointed out a technicality in the law to substantiate its verdict..Clause (3) of the provision grants the President of India the power to “declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications”. However, a proviso to this clause states that such declaration by the President shall be possible only with the assent of the Constituent Assembly of Jammu & Kashmir. And this is where things get complicated – the said Constituent Assembly has ceased to exist since January 1957..A bit of background may help here..In 1947, Maharaja Hari Singh, erstwhile ruler of Jammu & Kashmir declared Kashmir to be independent. The resultant aggression initiated by Pakistan drove the Maharaja to forge an alliance with India. On October 26, 1947 signed an accession treaty with India. However, this was a treaty unlike any other signed by a Head of State. Clause 7 of the treaty instrument stated,.“Nothing in this Instrument shall be deemed to commit in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into agreement with the Government of India under any such future Constitution.”.Moreover, the treaty did not mean that the state would become a part of India. The Government of Kashmir and the National Conference insisted that it was only a temporary agreement, and that the larger question of permanent integration ought to be decided by the people themselves, something that Jawaharlal Nehru acquiesced to. Once the dust of the war settled, India and Pakistan approached the United Nations Security Council to resolve the issue. In April 1948, the Council passed a resolution to conduct a plebiscite to decide the future of the region. However, the plebiscite was never conducted; one of the reasons being that the resolution was passed under Chapter VI of the UN Charter, which meant that it was not binding on the parties. It is in this backdrop, that the controversial provision was added to the Constitution..While the High Court may feel that Article 370 is the “conceptual framework of relationship between the Union of India and Jammu and Kashmir”, the fact remains that the current Central Government intends to do away with the provision..The BJP’s 2014 election manifesto states,.“BJP reiterates its stand on the Article 370, and will discuss this with all stakeholders and remains committed to the abrogation of this article.”.However, the question as to how the abrogation can happen is far more complicated. As per the Constitution (Application to Jammu & Kashmir) Order of 1954, amendment provisions under Article 368 of the Constitution do not apply to the state..“Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370.”.In effect, the only way the law can be amended is by an order of the President, subject to the assent of the State Government, which would be surely be reluctant to give up its special status. This essentially renders the Central Government powerless, regardless of its intentions to officially integrate state into the national fold..Writs challenging Article 370 have found their way as far as the Supreme Court in the past. Last year, Vijayalakshmi Jha contended before a bench of then Chief Justice RM Lodha and Justices PC Ghose and RF Nariman that the temporary provision lapsed automatically with the dissolution of the Constituent Assembly. Though the court was not willing to pass an order, it had left the option for Jha to approach the high court..Subsequently, Jha approached the Delhi High Court and the matter has been listed before a bench of Chief Justice Rohini and Justice Jayant Nath on October 19. It will certainly be interesting to see whether the Delhi High Court concurs with the J&K High Court’s interpretation on a constitutional provision that has left a troubled state in limbo..Image courtesy: Kunal Anand