Who holds the key?

In his recent speech in the Lok Sabha, Home Minister Amit Shah argued that Article 370 is a “temporary” provision in the Constitution. His remark made clear the Modi government’s intent with respect to Article 370. Despite the rhetoric, however, do Shah and his government — even with its brute majority — really hold the key to repealing Article 370? If not, then who holds the key to the destiny of the people of Jammu and Kashmir?

Article 370 was added to the Constitution by the founding fathers of the country after mature consideration and deliberation. It was the condition of Kashmir’s accession to India. It is argued that if the accession of Kashmir is sacrosanct, then the condition of accession – that is, Article 370 -- is also sacrosanct. Therefore, before finding out who holds the key to it, it is important to understand the most talked-about but least read Article of the Constitution.

Article 370 encompasses a very different kind of Centre-state relationship than the one existing between other states and the Centre. This special relationship is a product of a unique legislation. After the accession of the State of Jammu and Kashmir, only Articles 1 and 370 of the Constitution were applied to it and it was decided that the rest of the Articles could be made applicable only by virtue of Presidential orders, in consultation with the Government of J&K, in matters related to the Instrument of Accession [370(1)].

Under Article 370(2), the power of the state government to accord concurrence to the orders passed by the President in matters other than the items mentioned in the Instrument of Accession would end once the state’s Constituent Assembly was convened.

Additionally, it states that the power of the Constituent Assembly to rectify such orders would end the day the Constituent Assembly was dissolved. However, the most interesting part of Article 370 is its clause 3. Article 370(3) empowers the President to make an order to abrogate or amend Article 370. However, the recommendation of the state’s Constituent Assembly was made mandatory in this regard. This means that the President of India may, by public notification, declare that the Article shall cease to be operative or shall be operative with such exceptions and modifications as he may specify.

The President can issue such a notification only on the recommendation of the Constituent Assembly of the state. Since the Constituent Assembly ceased to exist in 1956, this provision has become inoperative. Since Article 370 starts with the expression, “Notwithstanding anything in this Constitution,” therefore Article 370 can only be repealed using its own express provision of repeal and not through any other provision.

One possible way out of this impasse for the central government is through Article 368. Article 368 provides for the powers and procedure of amending the Constitution. However, Article 368 also provides that no amendment passed in accordance with it shall apply to the state of Jammu and Kashmir unless it is extended to J&K by an order issued by the President under clause (1) of Article 370. Such an order will further require the concurrence of the state government. Therefore, it could well be said that Article 368 is subjected to Article 370 insofar as the repeal of Article 370 is concerned.

The authority of the President to pass presidential orders under Article 370 has come up before the Supreme Court only twice till date. Therefore, it becomes imperative to discuss how the issue was dealt with by the apex court. In Prem Nath Koul vs State of J&K, a constitutional bench collectively observed that the Constitution-makers attached great importance to the final decision of the Constituent Assembly under Article 370(2). However, in Sampat Prakash, the Supreme Court held a view contrary to its earlier judgment in Prem Nath Koul.

It is quite interesting, rather perplexing, to note that although the only case which came before the Supreme Court till then in relation to Article 370 was the Prem Nath Koul case, the court did not even consider or refer to it while deciding Sampat Prakash and held that under Article 370, the President can pass orders despite the state’s Constituent Assembly having ceased to exist.

However, it is to be noted that the judgment, as in Prem Nath Koul, has been given by a constituent bench of five judges and hence overrules the decision as given in Sampat Prakash, which was a single judge decision, thus concluding that the state’s Constituent Assembly’s concurrence is mandatory for passing any repealing legislation.

Hence, the way to repeal the Article is to pass an order under Article 370 itself making a constitutional amendment under Article 368 ipso facto applicable to the State of Jammu and Kashmir. Such an order can be made only with the concurrence of the state government. After making such an order, Parliament may pass a Bill to amend the Constitution containing a provision for the repeal of Article 370. Such an amendment will have to be passed by two-thirds of the members present and voting and absolute majority of the total membership in each House of Parliament.

It is therefore evident that no unilateral action can be taken by the Centre with regard to Article 370. So, does it mean that the state government of J&K holds the key to Article 370? Actually no, since India is a democratic country and it is the people who choose their government. Therefore, undoubtedly, it’s the people of Jammu and Kashmir, who will soon choose their state government, hold the key to Article 370. They must be properly informed that the Constitution of India does not allow the central government to unilaterally abrogate Article 370. They are the ones who will choose their own destiny through their vote.

(The writer is a student of the National Law School of India University, Bengaluru)