Article 370 is a permanent feature of the Constitution of India and cannot be abrogated, argued the Jammu& Kashmir High Court recently while deciding on a litigation regarding reservation in government jobs. The observation seems to be very critical in the present day context when there is a section within the ruling authority in Delhi which is keen to review the Article since it is discriminatory. The Division Bench of Justices Hasnain Masoodi and Janak Raj Kotwal ruled in its judgment of 12 October, 2015 that it is ‘beyond amendment, repeal or abrogation’ as the mechanism provided under clause 3 of the Article is no longer available with the dissolution of the State Constituent Assembly which was the only authority, endowed with powers to recommend abrogation or amendment in the Article. For the court, the Article does not seem to be an exception because Kashmir had ‘limited sovereignty’ when the Kashmiri ruler agreed to sign the Instrument of accession following India’s independence from colonialism.
The debates in the Constituent Assembly of India which framed the Constitution of India shall be illuminating here. While presenting Article 306 A which later became Article 370 in the Constitution of India, Gopalaswami Ayyangar, minister without portfolio in the interim government, attributed the special nature of the Article to ‘the special conditions’ that existed in the state. Article 306 A was, according to him, ‘a discriminatory’ constitutional design to enable the state to fully integrate with the Union of India in due course. Justifying that concessions were absolutely ‘temporary’ since the Assembly agreed to have a plebiscite to ascertain ‘the will of the people’ and also the formation of a constituent assembly to devise a constitution for the state.
Interestingly, Ayyanger’s defence of a clearly discriminatory Article 306 A did not provoke any of the Assembly members to initiate debates except Maulana Hasarat Mohani who raised his voice by questioning the partiality that the Assembly had shown to the Maharaja of Kashmir at the cost of other princely states. That Article 306 A was approved without discussion confirms that the proceedings of the Assembly were state-managed. As the available media sources suggest that when Article 306 A was placed for discussion before the Congress Parliamentary Party, it provoked fierce debate and there was hardly a consensus among the members given the discriminatory nature of Article 306 A. Jawaharlal Nehru and Vallabhbhai Patel persuaded the recalcitrant colleagues by saying that the concessional Article 306 A was likely to mobilize global opinion in India’s favour in the light Pakistan’s counter claim for the entire Kashmir.
An Article which was accepted because of the exigency of the situation gradually became an integral part of the existence of Jammu and Kashmir as a constituent province of the Union of India with all the special constitutional privileges. With a specific constitutional embargo, the President of India is restrained to act, according to Article 370, without ‘consultation’ and concurrence of ‘the government of the state. Moreover, the authority of Indian Parliament is further curtailed by clause 3 of Article 370 which makes the recommendation of the State Constituent Assembly mandatory in case this Article is sought to be changed or repealed.
Constitutional implications notwithstanding, the effort towards abrogating Article 370 will have serious internal political repercussions with global ramifications since strife in Jammu and Kashmir will create a constituency for those anti-democratic forces which are reportedly drawing sustenance from operators, located in different countries. Furthermore, it may not be politically useful for the National Democratic Alliance (NDA) government in Delhi to antagonise its alliance partner, People’s Democratic Party (PDP) that is ruling the state of Jammu and Kashmir because firstly, it will allow the opposition to characterize any move towards that as anti-secular and secondly, it is likely to alienate the people in the state, especially in the Kashmir Valley who always view any attack on Article 370 as debilitating for their identity. So, any kind of fiddling with the Article may mean playing with fire.
Neither the NDA nor the PDP can afford to lose out on this count since both these political outfits had to struggle a lot to be in the saddles of power after a long political hibernation. For those living in Jammu and Kashmir and who suffered terribly due to the consolidation of terrorism-engineered anti-democratic forces, Article 370 is no longer as important an issue as in the past simply because it has become part and parcel of their being. There are important socio-economic issues, like poverty, hunger and unemployment that need immediate attention. An opinion seems to have gained momentum highlighting the fact that involvement in the campaign for abrogation of Article 370 will lead Kashmiris nowhere except fomenting trouble and creating instability in the state.
For the rest of India, the campaign for the abrogation of Article 370 will garner support for the NDA’s leading partner, BJP, because of its discriminatory nature while in the Kashmir valley, in particular, it will create a fissure between two coalition partners at the cost of those who are fighting for political stability and consolidation of democratic processes at any cost. By highlighting the constitutional validity of Article 370, the Jammu and Kashmir High Court has raised an issue that cannot be addressed as easily as is construed given its obvious implications on what the country stands for.
The writer is professor in Political Science Dept, Delhi University