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

Green revolution "not sustainable", Bt cotton a failure in India: MS Swaminathan

Counterview Desk
In a recent paper in the journal “Current Science”, distinguished scientist PC Kesaven and his colleague MS Swaminathan, widely regarded as the father of the Green Revolution, have argued that Bt insecticidal cotton, widely regarded as the continuation of the Green Revolution, has been a failure in India and has not provided livelihood security for mainly resource-poor, small and marginal farmers.
Sharply taking on Green Revolution, the authors say, it has not been sustainable largely because of adverse environmental and social impacts, insisting on the need to move away from the simplistic output-yield paradigm that dominates much thinking. Seeking to address the concerns about local food security and sovereignty as well as on-farm and off-farm social and ecological issues associated with the Green Revolution, they argue in favour of what they call sustainable ‘Evergreen Revolution’, based on a ‘systems approach’ and ‘ecoagriculture’.
Pointing out that Evergreen Revol…

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.

Some Hindu bodies in US defending BJP-RSS' divisive, violent activities: Agnivesh

Counterview Desk Last week, Washington DC saw speakers at a religious freedom roundtable, chaired by the US Ambassador for Religious Freedom, Sam Brownback, express concern over "eroding" space for religious freedom in India. Dr Mike Ghouse, executive director, of the Center for Pluralism in Washington DC, referring to the roundtable, said in an email alert that Indian-Americans have "a moral duty to prevent India from being labeled as a Country of Particular Concern by the United States Commission on International Religious Freedom (USCIRF)".

Rejoinder: Inescapable to have Central Water Commission as strong technical body in India

By BN Navalawala*
This is with reference to Counterview Blog (December 5, 2018), "Modi govt 'shelves' water reforms report, shows 'no interest' in its recommendations", below mentioned are my comments/observations thereon:
A committee was constituted under the Chairmanship of Dr. Mihir Shah, Former Member, Planning Commission, for restructuring of Central Water Commission (CWC) and Central Ground Water Board (CGWB) for optimal development of water resources in the country in the backdrop of Integrated Water Resources Management (IWRM).

Murder of Tamil Nadu teenage Dalit girl: "Stoic silence" despite #MeToo movement

Counterview Desk
Brinelle D'souza, who is with the Centre for Health and Mental Health, School of Social Work, Tata Institute of Social Sciences, Mumbai, has prepared a strong statement to protest the brutal murder of 13-year-old Rajalakshmi. "Other than a few media reports, this gruesome killing has not caught national attention despite a very vibrant #MeToo campaign currently underway", regrets D'souza.

Preventing childhood deaths: India performs worse than Bangladesh, "equals" Pakistan

By Rajiv Shah
A just-released study, “The Pneumonia and Diarrhea Progress Report 2018”, prepared by the International Vaccine Access Centre (IVAC) at the Johns Hopkins Bloomberg School of Public Health, has identified India among 15 other countries which are still far off the mark in achieving the targets of the Global Action Plan for the Prevention of Pneumonia and Diarrhea (GAPPD).

60 ex-civil servants seek release of CAG reports on Rafale, demonetisation before 2019 polls

Counterview Desk
As many as 60 retired civil servants have asked President Ram Nath Kovind to expedite the release of Comptroller and Auditor General (CAG) reports on demonetisation and the Rafale deal. The letter, signed mainly by former Indian Administrative Service, Indian Foreign Service and Indian Police Service officers, regrets that the status of the audit is "unclear”. According to them, “An impression is gaining ground that CAG is deliberately delaying its audit reports on demonetisation and Rafale deal till after the May 2019 elections so as not to embarrass the present government”.

India's rewritten textbooks talk of demerits of democracy, praise Hitler, underrate Mughals

Counterview Desk
A detailed, 3,800-word review of the books rewritten under directions of the BJP rulers across India since Prime Minister Narendra Modi came to power in May 2014 has suggested that one of aims of the books is to instill a sense of doubt about India’s democratic polity among the country’s young minds. Reviewed in the prestigious US journal, “The New York Review of Books”, in its latest issue (December 6, 2018) by Alex Traub, the scrutiny insists, the effort has also been to paint Indian history from the angle of “Hindu triumphalism”, even as creating “Islamophobia”.

Govt of India "tarnishing" NGO reputation, dossier leaked selectively: Amnesty

Counterview Desk
Amnesty International India has said that a deliberate attempt is being made to tarnish its reputation by leaking a dossier, supposedly made by investigating agencies, to media without giving it access to any such information. The high profile NGO’s claim follows a Times Now report about proceedings launched by investigative agencies, including Enforcement Directorate (ED) against the rights body for “violations” of rules pertaining to overseas donations.

Four children die after poor UP Dalit, Muslim families forced to flee to forest area: PVCHR

Counterview Desk
Peoples’ Vigilance Committee on Human Rights (PVCHR) has said that the forest department police’s crackdown, allegedly without any prior notice, on Dalit and Muslim households in Dakhin Tola, Churk Bazaar, Sonbhadra district, Uttar Pradesh, beating up “children and old people, women, and men in an inhuman way”, has led to “forced displacement, starvation and discrimination”. This has reportedly affected about 350 people.