Misconception About The Status Of Article 370

Secondly the Constitution of India recognized and accepted that J & K will have its own Constitution to regulate the local governance in the State, and its relations with Parliament. The Constitution would create a Legislature and the Executive with their own expansive powers. None of the provision of the Indian Constitution were to apply including Article 352-356 in case of J & K because there were separate provisions for every contingencies in the Constitution of J & K. The legislative and the Executive powers of the Union in relation to J & K, as above, also fall from theConstitution of J & K and not the Constitution of India, unlike other States. This was the substance of the distinct "special status" of J& K quite unlike other State.

HOW CONFERRED

This "special Status" is not conferred by the Constitution of India much less Article 370. The Constitution of J & K is independent of it. To understand how this status evolved, we need to go back in history. The merger of the States, post independence, was to happen as per India Independence Act 1947. Each State whether princely or otherwise was to give an option to sign the Instrument of Accession. Rajah being the repository of all the powers in his State had the choice to merge but in the cases of the provinces, a resolution had to be passed by the Provincial legislatures reflecting their option. In other words the integration was to be achieved democratically.

In keeping with the above "option" the Rajah of Kashmir, in whom all powers vested, bargained for greater autonomy to J & K and a separate Constitution. The powers in the Union were confined only to foreign affairs, telecommunication, defence, etc. Rest of the powers were vested in the State of J & K as per the understanding and agreements. If we read the Debates to the Constitution of India it becomes clear that there was an undertaking given to the State of J & K with regard to a special status of having its own Constitution. The framers unequivocally intended to honour this commitment. This is the basis for creation of Article 370. Article 370 by itself does not confer on J & K a right to have its own Constitution but merely recognizes such a right. The Debates do recognize that this status comes from the commitment given to the Rajah and to the people of J & K by the Government of India. This special Status of J & K therefore ultimately flows from the Constitution of J & K, which determines the role and the rule of Governance in J & K.

Post the enactment of the Constitution of India it is noteworthy, that the Rajah of J& K had ordained the framing of the Constitution of J& K by its own Constituent Assembly by an elaborate Order in 1952. The Assembly debated the provisions of the Constitution in complete sync with the Government of India at every stage. After 1953 Delhi Agreement, which settled most of the Governance sharing issues, the Constituent Assembly of J & K approved the outcome by a resolution. The Government of J & K shared all the details with the Government of India. The Parliament thereafter also approved it and in pursuance of which, as per the understanding, 1954Presidential order was issued. This Order recognized with definiteness, that the legislative powers of the Parliament would be confined, unlike other states, to entries 1-96 of the List I of the Seventh Schedule only. The Concurrent list along with the residuary entry 97 in lists I were excluded in relation to Parliament so far as J & K is concerned. It was in this backdrop that the Constituent Assessment of J & K debated and finally enacted the Constitution of J & K. Important thing was that the Constitution of India had no provision for abrogating or amending the Constitution of J & K and neither did the Constitution of J & K permit J & K to undo this status under its amendatory powers under Section 147 of its Constitution. Such was the Independence of the Constitution of J & K and the nature of its "special status", embedded and recognized in both the Constitutions.

Constitution of J & K, after being sanctioned by the Parliament, the Government of India and the Constituent Assembly of India, saw the light of the day on 26.01.1957. The historical facts clearly demonstrate that Constitution of J &K owes it origin to Rajah's order of 1952 and was presented for his approval. It is therefore not the creature of the Constitution of India or its Article 370.

Constitutions are"organism" a living being made for ages. They contain ways and means of achieving the goals of the people for generations in a democratic and orderly manner. Constitutions are not made for a day or weeks or months(2018) 8 SCC 501. Their lives are infinite and therefore no Constitution prescribes its own life. It can only be overthrown by the people who are the real sovereigns in it. Once the Constituent Assembly and the Government of India recognized the need for an independent Constitution for J & K, implicit in such recognition was that it will subsist and survive for all times in the future. Framers were well aware that a Constitution is a permanent futuristic structure because they were themselves enacting one. There cannot therefore be any doubt about the permanence of the Constitution of J & K.

The question is why then Article 370 was termed "temporary". Ordinarily every provision of the Constitution is temporary till it is modified or deleted in accordance with the provisions of the Constitution itself. But this was not the intent as the Article 370 by its own, prescribed a method of its demise. There is no time period, or, frame prescribed for its life, unlike large number of other provisions. There are various methods prescribed by which some of the provisions would come to an end on their own. Article 370 prescribes one such method. But there is nothing in the Constitution of India which shows how, or, when the Constitution of J & K would end. It is in this background we have to assess why was Article 370 deliberately termed "temporary".

The only answer that comes to my mind is that once need for an Independent Constitution of J & K was recognized and accepted, two separate methods or mechanisms providing for internal governance of J & K, as well as, Centre- State legislative relations could not be countenanced. This would have been surest recipe for perennial conflict and disaster. If Constitution of J & K was enacted with the concurrence of everyone who was someone, then the temporary mechanism of Article 370 had to die its own death once the Constitution of J & K was enforced in 1957. It became incapable of operation. To think otherwise would be short sighted, inconsistent and destructive of the whole scheme that was thrashed out unanimously. Article 370 had to die its own death to confer long life in the Constitution of J & K. This is the only Constitutional reason for giving a temporary character to Article 370. It was not limited by time because the Constitution of J & K was to be enacted by the Constituent Assembly of J & K in the near but indefinite future. Article 370 was designed only to enable governance and to regulate the Centre–State relations in the interregnum. Careful analysis of the Article 370 will also bear this out.

Another aspect that needs to the understood is, that the "integration" of J &K in the Union of India under Article 1 is not due to any specific provision of the Constitution of India, but under the Instrument of Accession, as per the India Independence Act 1947. It is equally integrated to the Union under the Constitution of J& K which recognizes and openly proclaims "integration". By abrogating the Constitution of J & K, what has also been abrogated is the solemn undertaking of the people of J & K to integrate with India. One has to really understand this is the light of the historical facts, the situs and the territory of the State of J & K. All this chest thumping about the "real integration" does more damage than benefit. This outcry of integration in reality betrays total ignorance about the character of our federal structure. There is no set pattern of federal Constitutional structure prescribed. All that is required is the division of Legislative and the Executive powers between the federation and the federating States, where neither have to right to destroy the other. This basic condition is fully satisfied by the Constitution of J & K and therefore it was justifiably integrated in our federal structure.