After Pulwama, renewed debate on constitutional validity of Article 370, that grants special status to J&K, emerges

On 18 February, a group of students in Agra held a protest march demanding the repealing of Article 370 of the Indian Constitution that gives special status to the state of Jammu and Kashmir. The demand from the young students was in reaction to the killing of 40 Central Reserve Police Force (CRPF) personnel on 14 February by a Kashmiri youth who was a member of Pakistan-based Islamist militant group Jaish-e-Mohammad . The young students felt that giving a special status to Jammu and Kashmir is the root cause of the problem in Kashmir. The same sentiment has been shared by number of people on Twitter and other social media platforms. Now, the angst against the special status given to the Jammu and Kashmir has moved beyond the streets and social media space. While on one hand spiritual leader Jaggi Vasudev had demanded that the Narendra Modi government revoke Article 370 , the Supreme Court has also agreed to consider a plea that sought urgent hearing of a public interest litigation (PIL) challenging the constitutional validity of the Article. [caption id=“attachment_5534481” align=“alignleft” width=“380”] File image of the Supreme Court of India. PTI[/caption] The PIL was filed by advocate and BJP leader Ashwini Upadhyay in September last year. Upadhyay, in his submission, had argued that “The maximum life span of proviso of the Article 370(3) was only till the existence of Constituent Assembly. It can be clarified from perusal of the Constituent Assembly debates and the Article 370(3) itself. Hence, as on today, it is illegal and unconstitutional”. This is a plea that is usually taken by those favouring the repealing of the Article 370 . However, it is important to note here that in April 2017, the Delhi High Court had dismissed a similar petition filed by Kumari Vijayalakshmi Jha that sought a declaration that Article 370 is ’temporary’ in nature. Jha had made a plea similar to Upadhyay that Article 370 was a temporary provision that had lapsed with the dissolution of the Constituent Assembly in 1957. Following the dismissal of the petition by the Delhi High Court Jha moved the Supreme Court. While hearing the appeal, the apex court held that Article 370 of the Constitution which gives special status to Jammu and Kashmir is not a temporary provision. The bench of justices AK Goel and RF Nariman that heard the appeal said that in its earlier verdict of 2017 in the SARFESI case, it has been already held that Article 370 was not a temporary provision. Notwithstanding that, Upadhyay filed a PIL in September last year, which challenges Article 370 on following grounds :

1. The maximum life span of proviso of the Article 370(3) was only till the existence of Constituent Assembly. It can be clarified from perusal of the Constituent Assembly debates and the Article 370(3) itself. Hence, as on today, it is illegal and unconstitutional.

2. The Constitution of Jammu and Kashmir is invalid mainly for the reason that it has not yet received the assent of the President of India, which is mandatory as per provisions of the Constitution of India.

3. From the perusal of Article 370 as a whole ie Clauses 1, 2 and 3, it becomes clear that the said provision was valid only till the Constituent Assembly, ratified the instrument of accession and/or in alternative till framing the Constitution of Jammu and Kashmir, in conformity with/in consonance with the Indian Constitution, with the approval of the president. The Constituent Assembly was not in operation on the day of coming into force of the Indian Constitution ie 26 January, 1950.

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Therefore, Article 370 deems to be lapsed in 1954, when it ratified accession or maximum in 1957, when the Constituent Assembly of Jammu and Kashmir dissolved. It is also pertinent to mention that as per provision of Article 370 read with Schedule I of the Constitution and even as per provision of the Constitution of Jammu and Kashmir, the State of Jammu and Kashmir, is an integral part of the Union of India. This court has held that Constitution of India is supreme and India is a sovereign country, not the State of Jammu and Kashmir.

4. It is also argued that even the president cannot declare the Article 370 operative, because it can be done only with the consent of the Constituent Assembly.

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While there are several arguments in favour of repealing Article 370, those against it contend that abrogating Article 370 will weaken the legal basis for the existence Jammu and Kashmir to be part of India, as the accession was linked to getting special status. However, Upadhyay in his PIL, has submitted that challenging Article 370(3) does not amount to “questioning/challenging the agreement/instrument of accession dated 26 October, 1947, signed by the Ruler of Jammu and Kashmir and the Union, nor any order passed by the president under Article 370”. The PIL states, “It is also pertinent to mention that the Constitution of Jammu and Kashmir was adopted on 26 January, 1957, much after the Constitution of India came into force. Therefore, the Article 372 is also not applicable in the present matter. Furthermore, the instrument of accession dated 26 October, 1947 does not talk, even remotely about the Constituent Assembly or about a separate Constitution of Jammu and Kashmir.” The Supreme Court that formulated the basic structure doctrine in famous Kesavananda Bharati versus State of Kerala, while on one hand gave itself immense power to review all decisions of the Parliament, at the same time reviewed its earlier judgment in  IC Golaknath versus State of Punjab and held that the Parliament has the power to abridge and amend any part of the Constitution including any of the Fundamental Rights, with a rider that its reasonability will be open to challenge and review by the Supreme Court on the altar of the basic structure doctrine formulated by it.

In the case of Article 370, it has been contended by the petitioner, and those favouring its repealing, that the Constitution of Jammu and Kashmir is against the supremacy of the Constitution of India and contrary to the  dictum of “One Nation One Constitution One National Anthem and One National Flag”.

While the Parliament can amend the Constitution to abrogate Article 370 and ensure ‘unity and integrity’, it will be the apex court that will scrutinise the legality the Article.