A Supreme Court headed by Justice R.M. Lodha, on Friday reportedly dismissed a PIL challenging the special status granted to Jammu and Kashmir under Article 370 of the Constitution of India. It sought a declaration that the Article lapsed with the dissolution of J & K Constituent Assembly on 26th January 1957.
It was contended that Article 370 is just a temporary provision, which was valid only till the Constituent Assembly ratified the accession of Jammu and Kashmir.
The petition, submitted through advocate Anil Jha, stated that, "The Constitution of J & K dated 17th Nov 1956/26th Jan 1957, void, in-operative, illegal and ultra vires of the Constitution of India and such provisions of J&K Constitution like Article 144, 6, 7, 8 etc., of the same, which are inconsistent with/in derogation of Indian constitution void, in operative, illegal and ultra vires of the Constitution of India."
Another question raised by the petitioner was whether the state's constitution, which came into force Nov 17, 1956/Jan 26, 1957, was valid as some of its provisions were inconsistent with the provisions of the Indian Constitution.
The debate regarding Article 370 has frenzied soon after the Narendra Modi government came to power.
Article 370 of the Indian Constitution is a 'temporary provision' which grants special autonomous status to Jammu and Kashmir, under Part XXI of the Constitution of India.
According to this Article, except for defence, foreign affairs, finance and communications, the Parliament needs the state government's concurrence for applying all other laws.
Ayyangar, former Diwan to Maharajah Hari Singh of Jammu and Kashmir had argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still “unusual and abnormal.” Part of the State’s territory was in the hands of “rebels and enemies.”
Ayyangar argued that the “will of the people through the instrument of the [J&K] Constituent Assembly will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.” In sum, there was hope that J&K would one day integrate like other States of the Union, but this could happen only when there was real peace and only when the people of the State acquiesced to such an arrangement.
Nehru was undoubtedly optimistic and quixotic about Kashmir. He wrote: “Like some supremely beautiful woman, whose beauty is almost impersonal and above human desire, such was Kashmir in all its feminine beauty of river and valley...” Patel had a much more earthy and pragmatic view and, as his masterly integration of princely states demonstrated, with little time for capricious state leaders or their separatist tendencies.
Some scholars consider the “autonomy” as envisaged by Article 370 of the Constitution of India, as a mere myth. According to them, the series of Presidential orders have significantly eroded Article 370. The 1950 Presidential Order and the Delhi Agreement of 1952 defined the scope and substance of the relationship between the Centre and the State with the support of the Sheikh; the subsequent series of Presidential Orders have made most Union laws applicable to the State. The only significant difference from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of “internal disturbance” without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature.
Also, there are special provisions for several other states as well, listed in Article 371 and Articles 371-A to 371-I. Clause 3 of Article 370 makes it clear that the President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation.