Abrogation of Article 370



Whenever the New Delhi administration feels pressure on Kashmir they say they were/are ready to resolve the K-Issue albeit within the ambit of the Indian Constitution. Simultaneously the right wingers of India now and then throw feelers that they intended to get Article 370 of the Indian Constitution abrogated, knowing that Kashmir’s Muslim majority is overly sensitive to the suggestions of cancellation of this Article because they think that this Article conferred “autonomy” and “special status” on Kashmir. But history is witness to the fact that this Article was a device to gradually erode Kashmir’s autonomy; to dilute Kashmir’s “special status”; and to make the idea of a UN-sponsored plebiscite in Kashmir redundant.

Now the question is: “What would happen if this Article of Indian Constitution is abrogated?” One interpretation, favoured in India in general, is that Kashmir would get fully merged with the Indian Union at par with other states. But since the process of abrogation must get initiated in the Kashmir Legislative Assembly (actually in the Kashmir Constituent Assembly according to Clause 3 of Article 370), it has always remained a difficult job for New Delhi because the “mainstream” Members of Legislative Assembly, in order to remain politically relevant, indulge in their own rhetoric on this Article by saying that it was a guarantee of Kashmir’s “autonomy” and therefore needed to be “strengthened”.

The second interpretation is given by autonomy-obsessed National Conference Party. Conscious that application of Article 370 to Kashmir State in place of Instrument of Accession was as much Sheikh Abdullah’s handiwork as of Regent Karan Singh and Prime Minister Nehru, and therefore, in order to salvage Sheikh Abdullah’s honour, they maintain that abrogation of this Article would not merge Kashmir with the Union, it will only shift the constitutional relationship of Kashmir with India back to the Instrument of Accession; and that Kashmir will become “autonomous” as it was prior to 26 January 1950, the day Article 370 was applied to Kashmir.

There can be a third interpretation also. Article 1 of the Indian Constitution deals with the territory of India. Kashmir is listed as one of the states of India in the Schedule 1 of Article 1. This Article would not apply to Kashmir on the basis of Instrument of Accession (IOA). The IOA only meant that India would enjoy paramount hold over external affairs of Kashmir and in return would defend Kashmir from external aggression. In short the IOA had converted Kashmir into a protectorate of India not a part of India. Moreover, Clause 7 of the IOA, executed by the Maharaja of Kashmir, was clear that no future Constitution of India would be binding on Kashmir — (“Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution”).

When in 1949 the constitution making in India was in its final stages, the Regent Karan Singh, on the advice of his Council of Ministers headed by Sheikh Abdullah, issued a Proclamation on 25 Novemberto the effect that: “Whereas with the inauguration of the new Constitution for the whole of India now being framed by the Constituent Assembly of India, the Government of India Act 1935 [Kashmir had acceded to India under Section 6 of GOI Act 1935] which now governs the constitutional relationship between this State and the Dominion of India will stand repealed: I now hereby declare and direct that the Constitution of India shall, insofar as it is applicable to the State of Jammu and Kashmir, govern the constitutional relationship between this State and the Union of India.”

The Proclamation of 25 November 1949 paved way for the President of India to issue on 26 January 1950 the Constitution (Application to Jammu and Kashmir) Order whereby the constitutional relationship between India and Kashmir was changed from the IOA to Article 370 of the new Indian Constitution.

Now so far as Article 1 of this new Indian Constitution was concerned, it was applied to Kashmir through Clause (1) (c) of Article 370 – “the provisions of article 1 and of this article shall apply in relation to that State.”

Coming back to abrogation of Article 370. Should the Legislative Assembly of Kashmir recommend under Clause (3) of Article 370 to the president of India that this Article (Article 370) should be made inoperative, and if the president thereafter issues a public notification declaring that this Article (370) ceases to be operative, what will happen to Article 1 of Indian Constitution? Article 1 applies to Kashmir through Clause (1) (c) of Article 370. If Article 370 is abrogated, will then Article 1 in its application to Kashmir also get abrogated? Will Kashmir drop down from the Schedule 1 (territory) of the Indian Constitution? Will then the entire former princely state become “independent” de jure (legally) if not de facto (actually)?