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

Nobel laureates join international figures, seek release of Bhima Koregaon accused activists

Nobel laureates Olga Tokarczuk,  Wole Soyinka Counterview Desk  As many as 57 top international personalities, including Nobel laureates, academics, human rights defenders, lawyers cultural personalities, and members of Parliament of European countries, have urged the Prime Minister and the Chief Justice of India to ensure immediate release of human rights defenders in India “into safe conditions”.

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

Buddhist shrines massively destroyed by Brahmanical rulers in "pre-Islamic" era: Historian DN Jha's survey

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

Top ex-Gujarat babu tells Modi: Not yoga but solar system is our biggest source of energy

By Rajiv Shah  An email alert to Counterview from a top ex-IAS bureaucrat, termed as Gujarat’s turnaround man for revamping loss-making state public sector undertakings (PSUs), has sought to take a dig at Prime Minister Narendra Modi’s remark on the Yoga day – that the ancient Indian exercise provides an “infinite solutions” within ourselves, offering “the biggest source of energy in the universe.”

Hunger, lack of food security behind India's 'slip' in UN's sustainable development rank

By Dr Gian Singh*  According to a report released by the United Nations on June 6, 2021, India's ranking of achieving Sustainable Development based on the 17 Social Development Goals (SDGs) set by the 193 countries in the 2003 agenda, which was 115th last year, has slipped to 117th position this year. India ranks not only the lowest among the BRICS countries -- Brazil, the Russian Federation, India, China, and South Africa but also below the four South Asian countries -- Bhutan, Sri Lanka, Nepal, and Bangladesh.

Collapse of healthcare system? Why 90% of Covid patients treated at home survived

By Bobby Ramakant, Sandeep Pandey* Well known Hindustani classical singer Padma Vibhu shan Channulal Mishra, chosen as one of the proposers of Narendra Modi in Lok Sabha elections, lost his wife and elder daughter to Covid in private hospitals in Varanasi. Younger daughter has accused Medwin Hospital of charging Rs 1.5 lakh for treatement of her sister and not being able to explain the cause of death. Pandit Channulal Mishra has asked for a probe into his daughter’s death from the Chief Minister. The family has also asked for the CCTV footage of the ward where deceased daughter was admitted for a week.

Rooted in mistrust? Covid-19’s march into rural India is a very different ball game

By Sudhir Katiyar* As the Covid-19 virus penetrates rural India, the rural communities are responding very differently from their urban counterparts who rushed to the hospitals. The rural communities are avoiding the public health facilities and any mention of the disease. The note argues that this supposedly irrational response is based on a deep-seated mistrust of the state by the rural communities. It can not be resolved with routine Information, Education and Communication (IEC) measures suggested in the Government of India SOP for tackling Covid-19 in rural areas.

Courageous, in-depth attempt to confirm common spiritual values of Christ, Buddha

By RB Sreekumar, IPS*  All religions, both theistic and atheistic designed conceptual and practical architecture, for holistic and comprehensive elevation and enlightenment of humanity. PK Vijayan, in his novel “Nirvana of Jesus Christ” (Notion Press, 2020) through creative imagination portrayed personality evolution of the two progenitors of God-centric and sagaciously logical major religions – Jesus Christ of Christianity and Gautama Buddha of Buddhism.

Why hasn't Govt of India responded to US critique of freedom of religion under Modi?

By Fr Cedric Prakash SJ* About two weeks ago, on May 12, 2021, the US Secretary of State Antony J Blinken released in Washington the ‘2020 International Religious Freedom Report.’ This official annual report of the US Government details the status of religious freedom in nearly 200 foreign countries and territories and describes US actions to support religious freedom worldwide. Mandated by the International Religious Freedom Act of 1998, this report highlights the fact that ‘religious freedom is both a core American value and a universal human right’.

Covid fear? Cremation rituals gone upside down, Dalits asked to do Brahminical rituals

By Abhay Jain, Sandeep Pandey*  As Covid consumes human life in a very conspicuous way we are confronted with additional problem of disposing of human corpses. Cremation grounds are lit with continuous pyres, graveyards are running out of land and now Ganga has become a mass grave potentially polluting its water.