Skip to main content

Parliament has "no powers" to abrogate Article 370, which provides special status to Jammu & Kashmir

Rajindar Sachar
By Our Representative
Justice (retired) Rajindar Sachar, who headed high-powered committee, which came up with a much-debated report on the social, economic and educational status of Muslims in India in 2006, has declared that the BJP is living in great delusion that Article 370 of the Constitution of India, which provides autonomous status to Jammu & Kashmir (J&K) , can be abrogated. In a commentary circulated on the social media by well-known social activist Teesta Setelvad, fighting a legal battle against Prime Minister Narendra Modi’s involvement in the 2002 Gujarat riots, Sachar said, J&K became part of India on October 27, 1947 only because of the Instrument of Accession, dated October 27, 1947, signed by the Maharaja, allowing the J&K to acceded to the Dominion of India.
Sachar, who was Delhi High Court judge earlier, said, clause 3 of the the Instrument of Accession specifically provides that the terms of instrument shall not be varied by amending any law by Indian Parliament, unless such “amendment is accepted by the Maharaja”. Sachar added, “The instrument also clearly laid down that nothing in the instrument shall be deemed to commit the state in any way to the acceptance of any future Constitution of India.”
According to Sachar, the instrument accepted “only a limited number of matters, defence, external affairs, communications”, etc. on which the Indian legislature could make laws for J&K. Pointing out that “this special relationship of J&K found its reflection in Article 370 of the Indian Constitution”, Sachar said, Article 370 lays down that, “notwithstanding anything in the Constitution, the powers of Parliament to make laws for the state shall be limited to those matters in the Union list and the concurrent list.”
Even these laws would apply to J&K “in consultation with the government of the state”, and these should be in consonance with the Instrument of Accession, Sachar suggested, adding, “Thus by virtue of Article 370 Parliament can legislate for J&K on matters other than those mentioned in the Instrument of Accession, but only after obtaining the concurrence of the state of J&K.”
Sachar admitted that there is a provision in Article370, in section (3), which provides that the President may by notification declare that this article shall cease to be operative. However, he adds, “But the proviso clearly lays down a limitation that the recommendation of the constituent assembly of the state shall be necessary before the President issues such a notification.” He adds, this shows that “Article 370 cannot be withdrawn by Parliament purporting to exercise the power of amendment given by Article 368.”
Giving the example of Mizoram, which like J&K was given an autonomous status through Article 371G, introduced through Constitution’s 55th amendment Act, 1986, Sachar said, the constitutional amendment “provides that no Act of parliament in respect of ownership and transfer of land shall apply to the State of Mizoram unless the legislative assembly of Mizoram by a resolution so decides.”
Pointing out that this provision is “identical to Article 370 of the constitution regarding J&K, and the BJP was a party to the amendment”, Sachar wondered, “Why does BJP apply double standards in the case of Muslim majority State of J&K?”
“It needs to be appreciated that retention of Article 370 is a matter of self respect and honour and assertion of its distinct identity for people of J&K”, says Sachar, asking why can’t the BJP, even when most of parties in J&K are desirous of finding a lasting solution, have the courage to “give up its opposition to Article 370 – which no Kashmiri can possibly agree to abrogate because it is a matter of preserving his special identity.”
Sachar’s commentary comes in the wake of open debate triggered by Modi ahead of the recent Lok Sabha polls where he called for debate on article 370. Among others, BJP chief Rajnath Sigh called for debate on why Article 370 of the constitution cannot be abrogated. “One wishes he had sought this enlightenment before including the provocative item of abrogation of Article 370 in BJP election manifesto”, Sachar said.

Comments

TRENDING

Missed call drive for VVPAT verification follows online plea to "pressure" poll panel

By Our Representative
Several political activists have begun a new campaign, asking concerned citizens to give a missed call on 9667655855 to “support the demand that 2019 Loksabha elections must be declared only after verification of 50% electronic voting machines (EVMs) with Voter Verifiable Paper Audit Trail (VVPAT) receipts.” The effort, supported by civil society networks across India, is meant to "further pressure" India's election machinery to ensure that the poll outcome becomes more transparent.

Did Modi own, buy digital camera costing Rs 7 lakh in 1987-88, also used email?

Counterview Desk
In an interview to the news channel News Nation, aired on Saturday last, Prime Minister Narendra Modi declaring that he had approved the air strike despite bad weather because he felt the clouds would hide Indian planes from Pakistani radar is known to have become a laughing stock across India.

World Bank clarifies: Its 26th rank to India not for universal access to power but for ease of doing business

By Our Representative
In a major embarrassment to the Government of India, the World Bank has reportedly clarified that it has not ranked India 26th out of 130 countries for providing power to its population. The top international banker’s clarification comes following Union Power Minister Piyush Goyal’s claim that India has “improved to 26 position from 99” in access to electricity in just one year.

When a neo-nationalist "invaded" hijab clad ladies, Bengali looking scholar in Delhi metro

By Aditi Kundu*
Travelling in Delhi metro on a daily basis to commute from Mayur Vihar to Dwarka, I see diverse people everyday. One can hear them talk about different aspects of life, from kitchen pilitics to national politics. On the morning of May 13, I witnessed a strange incident; disturbing and amusing at the same time.

Terror attacks: Difference in public reactions in India, those in Colombo, Christchurch

By Battini Rao*
Recently, on April 20 during Easter Sunday, more than 250 people were killed in a series of coordinated terrorist attacks in churches and hotels in Colombo, Sri Lanka. Local Islamic organisations Thawheed Jamath (NJT) and Jamathei Milathu Ibrahim (JMI) are held responsible for the attack. Islamic State has also claimed responsibility.

Women lost 88 lakh jobs in 2018: Why Modi "failed" to address their disempowerment?

Counterview Desk
Five human rights leaders Anjali Bhardwaj, Shabnam Hashmi, Purnima Gupta, Dipta Bhog, and Amrita Johri of the Women March for Change have posed 56 questions (alluding to Modi’s claim of 56 inches chest) to Prime Minister Narendra Modi and BJP against the backdrop of his interview with a Bollywood star, which was allegedly masqueraded as a “non-political” conversation.

PepsiCo warned: Withdraw cases against Gujarat farmers or face dire consequences

By Our Representative
About 200 farmers’ leaders and activists, in a letter to Dr KV Prabhu, chairperson, Protection of Plant Varieties and Farmers’ Rights Authority (PPVFRA), and Dr R C Agrawal, registrar general, PPVFRA, Ministry of Agriculture & Farmers Welfare, Government of India, have demanded that PepsiCo immediately withdraw all the legal suits it has slapped on many potato farmers in different districts of Gujarat.

During Emergency, the ruler was extolled but Opposition wasn't punched around: Scribe

By Rajiv Shah
A just-released book, “India: The Wrong Transition”, by a top Delhi-based scribe Anand K Sahay, has quoted “journalistic circles” to say that the Indian mainstream media – with certain “honourable exceptions” – has virtually abandoned the “practice of journalism”, and  this happened following a “sting operation” that showed that “the crème de la crème of Indian journalism were only too willing, for a suitable price, to let poisonous Hindutva propaganda prevail in their news columns.”

Ex-IAS, IPS, IFS officers tell Modi: Pragya Thakur doesn't represent India's rich heritage

Counterview Desk
In an open statement, a group of former civil servants have said that normally they would have dismissed the candidature of Pragya Thakur, who is BJP’s choice for the Bhopal Lok Sabha constituency, as an act of political expediency. However, they were forced to react to her candidature after none other than Prime Minister Narendra Modi termed has as a “symbol of our civilisational heritage.”

Disproportionately high death sentences against Dalits, Adivasis, Muslims: UN told

Counterview Desk
In their joint submission to the United Nations Human Rights Committee to meet for the listing of adoption of list of issues at its 126th session, July 1-26, 2019, top Dalit rights organizations have taken strong exception to, among other things, "disproportional application of death sentencing by the judiciary of minorities, such as Muslims, Dalits and Adivasis".