Article 370, federalism and the basic structure of the constitution


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Article 370 is a permanent and not temporary provision of the Constitution that assures Jammu and Kashmir autonomy. Its content may have been hollowed out but it remains important for the people of Kashmir. Calls to scrap it are based on a misinterpretation.

The Article 370 debate is back centre-stage. The new Union Home Minister, Amit Shah, has made a detailed statement on Article 370 after his return from Kashmir. In tune with his party’s ideological position, he has yet again termed this constitutional provision as “temporary”. At the same time he has been candid enough to confess for the first time that most elections in Kashmir had been rigged.

The importance of Article 370 to Kashmir and the significance it holds in our Constitution are issues that need to be constantly reiterated to dispel the considerable misinterpretation and misunderstanding about this provision in the Constitution of India

History of Article 370

The most important feature of federalism in the United States of America (USA) was the ”compact” between the erstwhile 13 British colonies that constituted themselves first into a confederation and then into a federal polity under the 1791 constitution of the USA. In a confederation units do have a right to secede, but in a federation they do not have such a right though in this system they are given a lot of autonomy to operate within their allotted spheres.

Our Supreme Court in State of West Bengal v. Union of India (1962) too had attached the highest importance to an ”agreement or compact between states” as an essential characteristic of federalism. Since such as an agreement was not there in India, it held that India was not a federal polity. Subsequently, this ruling was overruled and federalism was recognized as the basic structure of the Constitution in the Keshavand Bharti case (1973) and reiterated in the SR.Bommai judgment (1994).

Article 370 of the Constitution of India is an essential facet of our federalism as like in the compact in the US, it governs the centre’s relationship with Jammu & Kashmir. The National Democratic Alliance (NDA) government in New Delhi may now want to have a relook at this relationship as the Bharatiya Janata Party (BJP) has consistently maintained that Article 370 has outlived its utility and the time has come for its abrogation. If an NDA government is installed in Jammu & Kashmir in September-October 2019 after elections are held in the state, it would not be difficult to get such a resolution passed by the state assembly.

It is therefore necessary to understand the origin of Article 370, the related constitutional issues such as its temporary status and frequent calls for its abrogation, and the Supreme Court’s response to these issues.

Article 370 is nothing but a constitutional recognition of the conditions mentioned in the Instrument of Accession that the ruler of Kashmir signed with the Government of India in 1948. It reflects the contractual rights and obligations of two parties.

At the time of Independence, there were two kinds of territories in India — one was British India that was under the direct administrative control of the British. The other comprised the princely states that had signed subsidiary alliance treaties with the British and had a British resident posted in the territories. The maharajas, rajas and nizams were still the de jure rulers administering these territories/states. In vital matters of war and peace, these rulers were required to take the concurrence of the British resident. 

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(Thanks to Mukul Dube)

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