Article 370

Article 370 of the Constitution of India is in the hot debate now a day. It provides a special status to Jammu and Kashmir in the Union of India. India holds Indian part of Jammu and Kashmir as well as Pakistan Occupied part of Kashmir as its integral part. But it is a bone of contention and confrontation between India and Pakistan since 1948. Without going into the history of this tangled situation, we intend to discuss this article in the light of Indian constitutional law.

Article 370 finds place in Part XXI of the Constitution, which part is titled “Temporary, Transitional and Special Provisions”. This very article itself is titled “Temporary provisions with respect to the State of Jammu and Kashmir”. The placement of article 370 in a part that deals with provisions which are temporary in nature and the specific heading of the article mentioning it a temporary provision, exhibit the unambiguous intention of the Constitution that article 370 has to be removed from its body at some point of time. However, the title of an article does not override its substantive part; the title may only be read to help ascertain the real meaning of the substance.

There are restrictions placed by this article in the matters of application of article 238 and of the power of Parliament to make certain laws in relation to the State of Jammu and Kashmir. Clause (C) of 370 (1) says “Notwithstanding anything in this Constitution the provisions of article 1 and of this article shall apply in relation to that State”. Mark the words, “Notwithstanding anything in this Constitution”, which makes the matter look grave because article 368 (power of Parliament to amend the Constitution) is also a part of the Constitution. Article 1 (2) says the States and the territories of the Indian Union shall be as specified in the First Schedule, which includes the Indian State of Jammu and Kashmir. On the first reading of these provisions, it looks the State of Jammu and Kashmir is constitutionally linked to India only through articles 370 and 1 and the clause “Notwithstanding anything in this Constitution” makes it constitutionally impossible to change this situation without the recommendation/concurrence of the Legislative Assembly of Jammu and Kashmir.

But the Constitution, like any other law, cannot be read clause by clause in isolation or in a piecemeal manner. It has to be read as a whole and one document in order to ascertain its intention and meaning. Sometimes, there are peculiar situations arising out of apparent inconsistencies and they need to be resolved judicially.

Article 368 deals with the power of Parliament to amend the Constitution and procedure thereof and its clause (1) opens with the words, “Notwithstanding anything in this Constitution”, which obviously includes article 370 also. Article 368 very carefully makes provisions for three aspects of amending the Constitution: firstly, the article gives plenary constituent power to Parliament to amend by way of addition, variation or repeal any provision of the Constitution [368 (1)]; secondly, it places certain procedural restrictions on this amending power in certain situations [368 (2)]; and, thirdly, it clarifies and removes doubts in the matter of Parliament’s constituent power for making constitutional amendments [368 (3, 4, 5)].

Article 370 uses the words, “Notwithstanding anything in the Constitution” and places certain restrictions on Parliament in relation to the State of Jammu and Kashmir. Article 368 also uses the words, “Notwithstanding anything in this Constitution” and gives the plenary constituent power to Parliament to amend the Constitution. Judicially, how do we reconcile these two seemingly contradictory non obstante clauses?

Article 368 (5) removes any doubts and declares that there shall be no limitation on the power of Parliament to amend provisions of the Constitution under this article. This provision has been judicially interpreted by the Supreme Court that this constituent unlimited power of Parliament to amend the Constitution has one limitation: the basic structures of the Constitution cannot be done away with by Parliament by making an amendment. Though much of the contours of what constitutes the basic structure have been left undecided, several features (like fundamental rights etc.) have been judicially declared to be basic features of the Constitution. Though article 370 does not constitute basic feature of the Constitution, it still leaves a scope for judicial intervention.

Article 368 (2) puts certain procedural restrictions (ratification by States Legislatures) on Parliament for amending the Constitution if it makes any change in articles 54, 55, 73, 162, 241, chapter IV of Part V, chapter V of Part VI, chapter 1 of Part XI, Lists of Seventh Schedule, representation of States in Parliament and article 368. However, article 370 does not find a mention in article 368 and it can be legally repealed by Parliament.

If India is to survive as a nation against many kinds of onslaughts, it needs to be alert in attitude, efficient in performance and transparent in working. In the age of empowerment of people through information and transparency, the need of the hour is to bring the Judicial Accountability Bill on the statute book by the fastest route. Even the route of an Ordinance may be considered in this respect by the representatives of the people, in whom the sovereignty of India lies.

Before article 370 is repealed, it must be thoroughly discussed and debated in public domain to make its merits/demerits a public knowledge. This article is temporary in nature and meant to be repealed at the appropriate time. If Jammu and Kashmir is a part of India, as it is, it must be integrated with India. It breeds a sense of alienation and not belonging to India.

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6 Comments (+add yours?)

  1. occupysonoradan1
    May 31, 2014 @ 23:12:27

    This writing states: “But the Constitution, like any other law, cannot be read clause by clause in isolation or in a piecemeal manner. It has to be read as a whole and one document in order to ascertain its intention and meaning.”
    Questions: Does the constitutional articles, 370 and 371, clearly state that it “…cannot be read clause by clause in isolation or in a piecemeal manner. It has to be read as a whole…”?

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  2. occupysonoradan1
    Jun 01, 2014 @ 05:53:39

    What is the advantage to reading these articles in a “piecemeal manner”?
    Do these articles contain self-contradictions, that could be exploited?
    Are these “self-contradictions”, if any, other than the possible “exception to the rule”?

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    • Authors of posts
      Jun 01, 2014 @ 09:50:55

      According to the well established rules of interpreting any law, including constitutional law, articles cannot be read in piecemeal manner. Thus there is no contradiction between art. 370 and 368. Still the “seeming” contradiction can be exploited. Thus, no exception to the rule is possible here. But misuse of this dictum is possible.

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