Is abrogating Article 370 possible?
Former chief minister of Jammu and Kashmir Farooq Abdullah has expressed his worry that Bharatiya Janta Party’s ‘sinister plan’ to abrogate the state’s special status will lead to “massive unrest”. Even if the right wing BJP comes to power, is it possible legally to abrogate Article 370? Legal experts say the abrogation isn’t possible.
“No one can abrogate Article 370, directly. Even if Indian state wants to abrogate, it’s not as simple process as politicians claim. For that New Delhi first requires Jammu and Kashmir State Constituent Assembly’s assurance before President of India,” Zafar Shah, High Court Advocate says.
Jammu and Kashmir doesn’t have a Constituent Assembly. After Sheikh Abdullah became the head of the government in 1957 a new constitution was adopted by the constituent assembly, establishing a new bicameral legislature. Now, the present Legislative Assembly is a substitute for Constituent Assembly is yet to be ascertained.
Noted legal expert and senior lawyer A G Noorani views Article 370 which is mentioned among the States of the Union in the First Schedule as Article 1 (2) requires Article 370 (1) (c) that the provisions of Article 1 and of this Article shall apply in relation to that State. ”What would be the effect of its abrogation, as the Bharatiya Janata Party demands?” wrote Noorani in his report on Kashmir, adding: “Article 1 is thus applied to the State through Article 370.”
Earlier, India’s Union Home Minister GL Nanda on December 4, in 1964, had said that Article 370 would be used to serve as “a tunnel (sic.) in the wall” in order to increase the New Delhi’s power.
“It was because New Delhi had second thoughts on Article 370. It could not be abrogated legally. It was reduced to a husk through political fraud and constitutional abuse. Article 370 was intended to guarantee Kashmir’s autonomy,” Noorani noted.
However Zafar claims it has been mischievously drafted and added to the state of Kashmir. “Article 370 is not a legal issue rather a political right that Kashmir enjoys within Indian Constitution,” he said, adding, “Article 370 provides us the special status under and to gives Jammu and Kashmir a right of concurrence.”
Before Maharaja Hari Sigh signed Instrument of Accession of 1947 he had admitted that he didn’t concur, explains the noted law academician Dr Sheikh Showkat Hussain, adding: “So the state accession was made possible through Article 370.”
The ruler of Jammu and Kashmir (Maharaja) then acceded to India by an Instrument of Accession on October 26, 1947 in respect of only three subjects – defence, foreign affairs and communications.
“People who made the Article 370 and introduced it into the Constituent Assembly have also made the same assertions about Jammu and Kashmir that it’s still lying in United Nations. That India has made a promise. There is a dispute. That the state is not fully with India,” Showkat told Kashmir Dispatch.
He said in order to understand the other provisions of Indian Constitution, for example, Article 253 that gives overriding power to New Delhi in context of any law whether they fall within any degree. “The provision in Article 253 says if there is any agreement pertaining to final disposal of Jammu and Kashmir through an International Agreement. The agreement too needs a concurrence of the state,” he said.
However, politicians must realise that all talk of abrogation of Article 370 is moonshine and a non-issue, said former Chief Justice of the Delhi High Court, Justice Rajindar Sachar in his report Article 370 on 20 May, adding: “It is also a very sensitive matter touching the credibility of our secular professions and the justifiable fears of the minorities. With all this, when it is also patent that the abrogation of Article 370 is not legally and constitutionally possible.”