Parliament has "no powers" to abrogate Article 370, which provides special status to Jammu & Kashmir
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| Rajindar Sachar |
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 He adds, this shows that “Article 370 cannot be withdrawn by Parliament purporting to exercise the power of amendment given by Article 368.”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.
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.
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