Article 370: Constitutional Obligations and Compulsions

Author(s): S. P. Sathe
Source: Economic and Political Weekly, Vol. 25, No. 17 (Apr. 28, 1990), pp. 932-933
Published by: Economic and Political Weekly
Stable URL: https://www.jstor.org/stable/4396216
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 disown it. What needs to be emphatically
Article 370: Constitutional Obligations stated is that unilateral abrogation of ar-
ticle 370 by the union Parliament is con'
and Compulsions stitutionally not feasible. Article 370
provides for its own repeal. The president
S P Sathe of India may, by public notification,
declare that the article shall cease to be
The prime minister has done well to assure the house that the operative or shall be operative with such
government would not repeal Article 370. 7his is not, however, exceptions and modifications as he may
specify. The president can issue such
merely a matter of the goodwill of any government in powver. The
notification only on the recommendation
Constitution of India does not allow any government to
of the Constitutent Assembly of the state.
unilaterally abrogate Article 370. Such a move requires the Since the Constitutent Assembly no
concurrence of the state government. longer exists, this provision has become
inoperative. Undc- Article 368 of the Con-
SINCE the eruption of the present crisis ed to Kashmir, by an order to be stitution, powers and procedure for
in Kashmir, some people and parties like issued by the president under article amendment of the Constitution have been
the BJP have been maintairiing that article 370, only in 'consultation' with the provided.* Article 368 as applied to
370 of the Constitution is responsible for state government of Jammu atnd Kashmir provides that no amendment
separatist tendencies and ought, therefore, Kashmir if it pertains to matters passed in accordance with that article
be abrogated. regarding legislative power of Parlia- shall apply to Kashmir unless it is extend-
Article 370 was included in the Con- ment, and with the 'concurrence' of ed to Kashmir by an order issued by the
stitution, not as an afterthought but after the state government if it pertains to president under clause (1) of Article 370.
mature consideration by the Constitution- matters other than those regarding the Such an order will require the concurrence
makers. It was a condition of Kashmir's legislative powers of Parliament. of the state government. Since Article 370
accession to India and if that accession The words 'consultation' and 'concur- expressly provides for its ownt repeal, it
is sacrosanct, the condition must also be rence' used in Article 370 are significant could very well be argued that Article 368
sacrosanct. Kashmir did not obviously and they show the meticulousness observ- is suibject to Article 370 insofar as the
want to join Pakistan. Kashmir pro- ed in preserving the autonomy of Jammu repeal of Article 370 is concerned.
crastinated between inde)enidence and ac- and Kashmir. Acutally under Article 370, However, in view of the fact that the pro-
cession to India and chose the latter. the president issued the Constitution vision in Article 370 has become in-
Accession to India was conditional on (Application to Jammu and Kashmir) operative due to the non-existence of the
Kashmir retaining its distinct cultural and Order 1954 declaring which provisions of Constitutent Assembly of Jammu and
regional identity. Article 370 assured the the Indian Constitution would apply to Kashmir the procedure under Article 368
state all benefits of independenit Kashmir Jammu and Kashmir with or without could be used for achieving the repeal of
without sacrificing the advantages of modification. This order was amended Article 368. Article 370 starts with the
being a part of the larger Inidian federa- from time to time to make more and more words "Notwithstanding anything in this
tion. It conferred maximum autonomy on provisions of the Indian Constitution Constitution". Article 368 also contains
Kashmir. applicable to Jammu and Kashmir. a similar non obstante clause. In view of
The Article provides: The Constitutent Assembly of Jammu the fact that both the articles contain the
(I)The Union Parliamenit is to legislate and Kashmir drafted a constitution for non obstante clause, the specific provision
on such matters in List I and List III that state whose preamble states that "the in Article 370 must override the general
of the Seventh Schedule of the Con- people of the state of Jammu and provision in Article 368. Therefore, the
stitution as correspond with those Kashmir, having solemnly resolved, in only way to repeal Article 370 will be to
mentioned in the Instrument of Ac- pursuance of the accession of the State to issue an order under Article 370 making
cession signed by the king of Kashmir. India" had given themselves that Con- constitutional amendment made under
The president of India can identifv stitution the purpose of which was to fur- Article 368 ipso facto applicable to
subjects on Lists I and III which cor- ther define the existing relationship of the Jammu and Kashmir. Such an order can
respond with broad subjects mention- state with the Indian union. In the Con- be made only with the concurrence of the
ed in the Instrument of Accession but stitution of Jammu and Kashmir, the state government. After making such an
the order of the president specifying Constitution of India has been defined as order, Parliament may pass a bill, to
such subjects must be made in 'con- "the Constitution of India as applicable amend the Constitution, containing a pro-
sultation' with the state government. in relation to that State". This implies thatvision for the repeal of Article 370. Such
(II) The president can extend the such provisions of the Constitution as an amendment will have to be passed by
legislative power of Parliament in would be made applicable to Jammu and two-thirds of the members present and
respect of subjects in the union and Kashmir by an order issued by the presi- voting and absolute majority of the total
Concurrent Lists of the Seventh dent under article 370 of the Constitution membership in each house of Parliament.
Schedule not included in the Instru- would constitute the Indian Constitution Since an order under Article 370 making
ment of Accession by an order, which so far as Jammu and Kashmir is con- the constitutional amendment under
can be made only with the 'concur- cerned. Article 368 ipso facto applicable to Jam-
rence' of the state government. What Article 370 envisages is a different mu and Kashmir cannot be issued except
(III) Article I of the Constitution of India,type of centre-state relationship than the with the concurrence of the state govern-
which defines the territories of India, one that exists between the centre and ment, no unilateral action can be taken
and article 370 itself apply to Kashmir other states. This special centre-state rela- by the centre in this regard.
ipso facto. All other articles of the tionship was the result of a peculiar It is in India's interest to retain Article
Constitution of India may be extend- history and it would not be desirable to 370 until the government of Kashmir

932 Economic and political Weekly April 28, 1990

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agrees to its repudiation. Article 370 abrogating Article 370 which is a part of the police station to give them security
would morally strengthen India's claim that framework. In fact, those who are in- while they took possession of their land
over Kashmir. Ultimately no one people terested in solving the Kashmir issue and rebuilt their shops but the 0 C ex-
can keep another people in subjection should use the present provisions of pressed his inability to do anything in the
against their will. The central government absence of a magistrate.
Article 370 to assure the people of Jammnu
will have to win over the people of and Kashmir that even if the Indian Quite clearly the state government does

Parliament wants, with an overwhelming not hesitate to flout the judiciary to please
Kashmir and convince them that their
a few of its touts. This has grave implica-
interests are safe in India and that they majority, to undo Article 370, it would not
tions for the future as ignoring the high
enjoy the fruits of democracy and be able to do so except with the CoTncu r-
court's orders may become the rule rather
autonomy within the Indian federation. renice of the state government.
than an exception in Tripura. The state
This is the real challenge before the Indian The prime minister has done well to
government's attitude towards judicial in-
leadership and any talk of abrogating assure the house that the government
junctions will be on test in another case
Article 370 would further alienate the would not repeal Article 370. But the
relating to government appointmeiits.
people of Jammu and Kashmir from people of Jammu and Kaslhrnir must be Towards the end of 1987, the Left Front
India. infornmed that this is not mlerely a matter government of Tripura, on the basis of a
Be cannot invoke the sanctity ot thie of the cood will of any iweernent in clearly laid-down recruitment policy, had
Constitution when it suits uis and call it power. The Constitution of india does inot
selected candidates and sent them letters
a mere technicality wheni it does not suit allo\v any governmenit to unillaterally offering them employment in various
us. If the Constitution is sacrosanct. and abrogate Article 370. -T-his will go a long government jobs. 706 selected candidates
we are willing to negotiate with terrorists way in assuaging the fears of the people had accepted these offers. In the mean-
within its framework, we must not talk of of the state. while as the election procedure had started
in accordance with the Election Commis-

Tripura: Government Flouts Court sion's directives, the then state government
did not issue the final appointment let-
ters to the carndidates who had been of-
Orders fered and had accepted the jobs. The
coalition government which comes to
Seven petty traders of Teliamura, on whose eviction nlotices the power in the state after the elections did
Inot issue appointment letters to these can-
Guwahati High Court had granted a stay, were evicted with the didates and even cancelled the job offers
help of the police and the CRPF and their property seizec. of seven of them. The candidates who had
Clearly the Congress (I)-TUJS government of Tripura does not received job offers but had not been issued
hesitate to flout the judiciary to please a few of its t-outs. final appointment letters formed an
association and started a protracted agita-
tion. All the seven candidates whose job
OF late, the Congress(I)-TUJS government of the high court's order with them but offers had been cancelled along with
of Tripura appears to be casting asper- they were surrounded by hoodILlnS led by another 131 candidates who had not
sions on the judiciary by flouting its the local Congress(l) leader and chalirman received their appointment letters filed a
orders. of the notified area committee, Asok writ petition in the Guwahati High Court.
In Agartala and Udaipur and in many Baidya. They threatened the traders andThe division bench of the Guwahati High
other towns of the state, the government blatantly proclaimed that they were not Court started its hearing in August 1989
has been illegally evicting poor hawkers going to obey the high court's order. The and on April 5, 1990, the judgment was
and petty traders using barbaric and in- traders were forced to beat a hasty retreat, delivered. The division bench dismissed
human tactics. Seven petty traders of leaving behind their building materials as the state government's contention that the
Teliamura town who had been served evic- they were not given any protection by the Left Front government had adopted un-
tion notices moved the Guwahati High local police station. fair means for selecting candidates to
Court which issued a stay order against On April 7, the S D 0 reportedly went whom job offers had been issued and
their eviction. However, the S D 0 of to Teliamura and had a meeting with the ordered the state government to issue let-
Khowai, ignoring the order of the High O C of the police station and the Con- ters of appointment to these candidates
Court, evicted these traders with the help gress(I) leader, Baidya who had led the without further delay.
of the police and the CRPF and property hooligans the day before. After the depar- Time alone will tell if this order of the
belonging to them was seized. The evictedture of the S D 0 from Teliamura, about high court is going to be honoured by the
traders then filed another case against the fifty to sixty armed anti-socials under the coalition government of the state, given
violation of the court's order in the leadership of Baidya went on a rampage its contempt for the authority of the
Guwahati High Court. On March 30, 1990 and started looking.for the traders who judiciary and its tendency to flout orders
the Guwahati High Court issued an order had filed the case in the Guwahati High issued by the high court.
to the S D 0 of Khowai to restore the sitesCourt. The hapless traders saved their
from which the traders had been evictedlives that day by swimming across the river
within seven days. He was to visit the areato reach their homes as the hooligans were
Economic and Political Weekly
lying in wait for them on the Teliamura
personally to give effect to the high court's
order but this order of the high court was bridge. Available from
also flouted by the Tripura administration. On April 8, 1990 the S D 0 again
On April 6, 1990, the last day for giv-returned to Teliamura only to clamp M/s. Shri Ram Abilash Dubey,
ing effect to the high court's order, theSection 144 on the area from which the Newspaper Agent and Bookseller,
evicted traders returned to the sites fromtraders had been evicted and did not ini- 107, Badshahi Marg,
which they had been evicted with tiate any move to give them possession of Allahabad,
materials to rebuild their shops which had their land. After his departure from the Uttar Pradesh.

been razed to the ground. They had copies scene, the traders appealed to the 0 C of

Economic and Political Weekly April 28, 1990 933

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