Why can’t Article 370 be amended?
by Bhim Singh on 26 Feb 2015 7 Comments

Article 370 has remained a bone of contention since its insertion in the Constitution of India. Two schools of thought have been exploiting this provision to suit their political ends and the people of Jammu & Kashmir are the principal victims of this controversy. Wherever I go, be it a political or social seminar or get-together, J&K is the only issue that is discussed. I find myself reduced to a corner of India – the so-called issue of J&K.


Not one intellectual, thinker, jurist, judge or politician is prepared to go through the brief contents of Article 370. One school of thought is not prepared to accept its existence while the opposite school of thought considers it as holy and is not prepared even to discuss the subject and find its pluses and minuses.


This Article was introduced 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 while his son Yuvraj Karan Singh was 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. It 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 were merged into the Dominion by the Constituent Assembly of India. The State of Baroda (now Vadodara) acceded to the Union of India by Maharaja Gaekwad in 1948 and was also included in the Union of India without any reservation.


It shows bankruptcy on the part of the Indian leadership and intellectuals that none dared probe this tragedy in the history of India vis-à-vis J&K. The question is important today – why was the Maharaja of J&K, who was hated by Jawaharlal Nehru and Sheikh Abdullah, 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, is why and under what circumstances or compulsions the so-called Constituent Assembly of J&K (the State had constituted a separate Constituent Assembly to redraft the existing Constitution framed by the Monarch in 1939) terminated and abolished the existing Monarchy without the consent of the Parliament of India on August 20, 1952?


Did Sheikh Abdullah intend to step into the shoes of the Monarch? Did Sheikh Abdullah want 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?


A third and equally relevant question is - what was the cause that convinces Prime Minister Jawaharlal Nehru to dismiss and order the arrest of his oldest and trusted political friend on August 9, 1953, just one year after the termination of the Monarchy?


I would like to draw the attention of the so-called defenders of Article 370 in its present form about the validity of the provisions of this Article after the Monarchy was abolished. I strongly feel that in international jurisprudence and law the provisions of Article 370, a temporary insertion in the Constitution, became infructuous with the termination Monarchy. This is evident from the explanation given in clause (b), (ii) of Article 370 (1) which made the intention of the Constituent Assembly clear, namely, that Article 370 was meant to tame the Maharaja of J&K and keep him under control of the government that he had formed on March 5, 1948, appointing Sheikh Abdullah as head of 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 infructuous on August 20, 1952 with the termination of Monarchy in the state.


Thereafter, the dismissal of Sheikh Abdullah as Prime Minister of J&K on August 9, 1952, brought the essence of Article 370 into the graveyard of history. With this, J&K became an unquestionable part of the Indian Union, as has been admitted in Section 3 of the Constitution of J&K, “J&K is and shall be an integral part of India”. Where is the existence of any stipulation or provision of Article 370?


Article 370 should have been declared dead and gone and omitted as was done in the case of Article 238 of the Constitution. If 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 rights as a fundamental right, yet it was abrogated by ‘pro-capitalist Janata Party Government headed by Shri Morarji Desai’. What can stop Parliament from amending Article 370, which has been instigating disintegration and creating friction and threatening the 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 from 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 infructuous 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. Jurists and historians have ignored this situation. There is neither a Constituent Assembly in J&K nor is a single member of the old assembly 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 is now infructuous and non-existent.


Some political sections and leaders have been exploiting the people in favour of Article 370, and another section, political hawks, have for electoral gains been blackmailing regarding the provisions of Article 370. The need and necessity of the hour is to amend this Article as Parliament is a sovereign body and enjoys sovereign power to amend any provision of the Constitution. This authority of Parliament is vested in Article 368 of the Constitution of India.


The 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 amendment is important for the security, integrity and sovereignty of the 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 I felt that time was not on his side. The message should go straight to the entire nation from the floor of Parliament that Parliament is supreme and sovereign to amend any provision in the Constitution of India. Let the world understand that and none shall be allowed to play with the sentiments of the people in one way or other. The unity, integrity and sovereignty of the nation are supreme and non-negotiable.


The author is Chief Patron of the National Panthers Party; the views expressed are personal

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