Article 370 can be repealed

Mark my words and save this tweet — long after Modi government is a distant memory either J&K won’t be part of India or Article 370 will still exist,” Omar Abdullah, the Chief Minister of India’s 15th state, tweeted in his response to a minister’s statement on the special status accorded to Jammu and Kashmir.

Audacity unlimited! And ignorance unbounded! The Chief Minister appears to be under the wrong impression that he can give talaaq and separate Jammu and Kashmir from India at will.

According to the Omar school of thought, Article 370 of the Constitution of India cannot be touched except with the consent of the J&K Assembly. And if that Article is abrogated, the status of J&K before accession would automatically stand restored. Should that mean that Dr Karan Singh, son of the last ruler of Kashmir, will be recognised as the ruler of J&K, and everything that happened after the accession would be void? No, that may not be acceptable.

On the eve of India and Pakistan becoming separate dominions, Indian Independence Act 1947, read with the Government of India Act 1935, gave the rajas and maharajas of British India three options: become part of India, become a part of Pakistan or remain independent states. Within the specified period — between August 15 and October 6, 1947 — 560-plus erstwhile rulers signed documents with the title “Instrument of Acces-sion”, and thereby agreed to become part of the dominion of India. This was to be followed by instruments of merger, thereby becoming part of India and ending the original identity of the princely state — many princes executed both the documents one after the other, while some had hesi-tation to sign the merger treaty.

The process of merger in respect of all except J&K was completed in October 1949. At the insistence of Sardar Vallabhbhai Patel, the agreement to pay compensation to the princes for merging with India — the privy purse — was given a constitutional status through the introduction of Article 291. The ruler of Jammu and Kashmir wanted to remain independent, but when the Pakistanis were about to capture his kingdom, the raja in distress executed the Instrument of Accession on October 26, 1947 — the offer was accepted by Governor- General Lord Mountbatten the very next day with a gratuitous condition that after peace returned to the state, the people’s wish would be ascertained on the issue of accession. This was just a wish in view of the belated accession, not a precondition for accession authorised by law.

The Instruments of Accession were cyclostyled documents — the one signed by Raja Hari Singh was no different from the one signed by, say, Maharaja of Mysore. So much so the Kashmir king’s impressive string of titles — Shriman Inder Mahender Rajrajeswar Maharajadhiraj Shri Hari Singhji, Jammu and Kashmir Naresh Tatha Tibbetadi Deshadhipathi, Ruler of Jammu and Kashmir — had to be squeezed into the long enough blanks allotted in the specified form. So the document executed by Raja Hari Singh was just another Instrument of Accession with no special concessions or reservations.

In normal circumstances, merger of J&K with India should have taken place before October end, but a brilliant self-goal scored by Prime Minister Jawaharlal Nehru, in the form of a complaint to the UNO and the consequent UN intervention, prevented it. The merger had to be postponed until the dispute was settled — and that dispute is still pending.

Again, at the insistence of Nehru, Article 370, according special status to J&K, was added at the fag end of the deliberations of the Constituent Assembly. B.R. Ambedkar openly opposed the idea and refused to take part in drafting Article 370, while other members of the Constituent Assembly, according to Gopalasway, a member of the Constituent Assembly, condescended to this “gift from Nehru to his friend Sheikh Abdullah” in the firm belief that this was a temporary measure.

Recall the privy purse case. Indira Gandhi, following the split in the Congress, resorted to measures intended to project her as the only champion of the poor. One such gimmick was abolition of privy purse in 1970 — at that time the total burden on the exchequer on this account was about Rs 4 crore per year. A blatant breach of a constitutional obligation and of a solemn promise was sought to be committed by deleting Article 291.

But the move was defeated by one vote in the Rajya Sabha. Bitterly bitten by this humiliation, the Indira government got a presidential notification issued, derecognising the princes. That notification was struck down by the Supreme Court (1971). Soon thereafter, equipped with the needed numerical strength in Parliament, the 21st Amendment Act was passed. It was the shortest amendment reading, “Article 291 be deleted”. The Amendment Act was also challenged. However, the Supreme Court upheld the abolition of privy purse by deleting Article 291 after observing that Article 368 permits such an amendment. “We are concerned only with the legality not morality,” said the court (1983).

Arguments on the scope and interpretation of Article 370 may end before the Supreme Court of India, or may be not if the issue assumes international colour. But what is not in doubt is that the Indian Parliament can amend the Indian Constitution even by deleting Article 370.

The amending power under Article 368 is plenary and in exercise of it Parliament can simply delete Article 370. Article 368(1) reads: “Not withstanding anything contained in this Constitution, Parlia-ment may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article.”

So long as the basic structure of the Constitution is not altered, Parliament’s amending power is unlimited — what is the Constitution’s basic structure is not defined, but a temporary provision like Article 370 cannot be part of it. No agreement or treaty can restrict the scope of this constitutional provision.

Once Article 370 stands repealed, the Instrument of Accession may become operational to the extent that it is consistent with the Consti-tution — the proclaimed allegiance to the Government of India Act 1935 would extend to its successor, the Constitution of India.

The assertion by any citizen that J&K or any other state is not governed by the Indian Constitution may amount to an act of sedition. The seemingly unending Kashmir problem was born out of a single folly of a single man — Nehru stopping Sardar Patel from dealing with Kashmir. Through a series of more such follies, a Frankenstein of a state has been created that dares the nation even to discuss an issue relating to it. With the passage of time the problem may only get aggravated. What should be done? To begin with, try to win the co-operation of the Kashmiri politicians and MPs from the rest of India to suitably amend and attenuate Article 370; failing this repeal it. Hopefully, well before the Modi government is forgotten, the Kashmiri people would have forgotten Article 370.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India.
He can be reached at knbhat1@gmail.com