Article 370 has remained a bone of discard right since its insertion in the domain of Constitution of India. Two schools of thought have been exploiting this provision to suit their political ends and the people of J&K are the principal victims of this controversy. What I found embracing is that wherever I go, I attend any political or social seminar or get-together, J&K is the only issue that I face anywhere, may it be Press Club of India, Supreme Court Library, India International Centre or any other social or political gathering. I find myself reduced to a corner of India i.e. so-called issue J&K. The fact is none, may be intellectuals, thinkers, jurists or judges or politicians are prepared to go through the brief contents of Article 370. One school of thought is not prepared to accept its existence whereas the opposite school of thought consider it as a holy and is not prepared even to discuss the subject and find its pluses and minuses.
This Article was introduced, no doubt, in the Constitution of India with a purpose to contain the authority of the then ruler of J&K, namely, Maharaja Hari Singh, living in exile in Bombay and his son Yuvraj Karan Singh was the Regent of the State. The first question that needs answer is why Monarchy in J&K was not terminated during the framing of the Indian Constitution. This is a matter of record that two states namely, Hyderabad and Junagarh never signed the Instruments of Accession with the Dominion of India in 1947 or even later. Both of them were merged into the dominion by the Constituent Assembly of India.
On the other hand State of Baroda (now Vadodara) acceded to the Union of India by Maharaja Gaekwad in 1948. That state was also included in the Union of India without any reservation. It is tragedy and shows bankruptcy on the part of the Indian leadership and the intellectuals that none dared probe into this tragedy in the history of India vis-à-vis J&K. The question is important today, that why the Maharaja of J&K who was hated most by Jawaharlal Nehru and Sheikh Abdullah both was allowed to be the Monarch of the State at the time of the promulgation of the Constitution on January 26, 1950? Another question that needs to be answered by the present leadership, as the past leadership is no more there to answer these questions, that why and under what circumstances/compulsions the so-called Constituent Assembly of J&K (J&K had constituted a separate Constituent Assembly for J&K to redraft the existing Constitution framed by the Monarch in 1939) terminated/ abolished the existing Monarchy without the consent of the Parliament of India on August 20, 1952.
Was that Sheikh Abdullah intended to step into the shoes of the Monarch? Was it that Sheikh Abdullah wanted the implementation of the Dixon Plan to carve out an Islamic Republic of J&K by dissecting the Muslim majority districts of Poonch (Rajouri) and Doda? The third question which is equally relevant what was the cause that let to convince Prime Minister Jawaharlal Nehru for the dismissal and arrest of his oldest and trustworthy political friend on August 9, 1953 within a year of the removal of the Monarchy?
I would like to draw the attention of the so-called defenders of Article 370 in the present form about the validity of the provisions of this Article after the Monarchy was abolished? I strongly feel that in the opinion of international jurisprudence and law the provisions of Article 370, a temporary one, became in fructuous after the termination Monarchy. Which is evident from the explanation given in clause (b), (ii) of Article 370 (1) on which made the intention of the Constituent Assembly cleared that Article 370 was meant to tame the Maharaja of J&K and keep him under control of the government he had formed on March 5, 1948 fixing Sheikh Abdullah as the head of the government (Prime Minister). This explanation is set in the following lines;
“Explanation:---For the purposes of this Article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948.” The entire explanation as reproduced above became in fructuous on August 20, 1952 with the termination of Monarchy in the state. Then with dismissal of Sheikh Abdullah as Prime Minister of J&K on August 9, 1952 brought the entire essence of Article 370 down to the grave of the history. With this Jammu and Kashmir became unquestionable part of the Indian Union which has been admitted in Section 3 of the Constitution of J&K which boldly admitted, “J&K is and shall be an integral part of India” so where is the existence of the stipulation/provisions of Article 370.
This Article should have been declared dead and gone/omitted as was done in case of Article 238 of the Constitution. If the Parliament could amend Article 238 or even amend Article 31 of the Constitution of India, why not Article 370 of the Constitution. Article 31 had guaranteed property right as a fundamental right yet it was abrogated by ‘pro-capitalist Janata Party Govt. headed by Shri Morarji Desai’. What stop the Parliament to amend Article 370 which has been instigating disintegration and creating friction and threatening security of the state?
Another dangerous and unacceptable proposition in Article 370 (3) provides that;
“Notwithstanding anything in the foregoing provisions of this 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 form such date as he may specify:
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 satisfaction.”
This proviso has also turned in fructuous after the Constituent Assembly ceased to exist in December, 1956. The Constituent Assembly became dead the day J&K Constitution was born on January 26, 1957. The jurists and the historians have ignored this situation that emerged in the history of J&K. There is no Constituent Assembly in J&K nor even a single member is alive today. There is no provision to reorganize the Constituent Assembly after the insertion of Section 3 in the Constitution of J&K. The President is empowered to act under the scope and mandate of 370 (3) because proviso in Section 3 of this Article has gone in fructuous and non-existent.
Since a political section in the country and a particular leadership has been exploiting the people in favour of Article 370 whereas another section, political hawks, just for electoral gains have been blackmailing the provisions in Article 370. The need and necessity of the hour is to amend this Article as the Parliament is sovereign body in this regard and enjoys sovereign power to amend any provision of the Constitution. This authority in the Parliament is vested in Article 368 of the Constitution of India. What needs to be done that proviso in sub-section 3 of Article 370 should be substituted with another proviso that;
“Provided further that the Parliament shall exercise its legislative and constituent powers, which relate to matters other than those referred to in the last preceding provision listed in List-I (including matters relating to Defence, Foreign Affairs, Communication, Currency and allied matters). The matters covered under List-II & III may be dealt by the State Legislature.”
This is the amendment which is important for the security, integrity and sovereignty of Union of India. I had an occasion to discuss this matter with several Prime Ministers from Mrs. Indira Gandhi to Shri Atal Bihari Vajpayee. Shri Vajpayee did not disagree with this proposition but, what I feel that time is not in his favour. This matter should go straight to the entire nation from the floors of the Parliament that Parliament is supreme and sovereign to amend any provision in the Constitution of India. Let the entire world understand that and none shall be allowed to play with the sentiments of the people is one way or the other. The unity, integrity and sovereignty of the nation is supreme and non-negotiable.
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