Jammu & Kashmir’s former head of State and senior Congress leader Karan Singh said many provisions in the Constitution were temporary in nature and even the reservation for Scheduled Castes was temporary and originally meant for the initial 10 years.
Home Minister Amit Shah said in the Lok Sabha on Friday that Article 370, which extends special status to J&K, was “temporary” and not permanent in nature.
Dr. Singh, son of the former ruler of J&K, while reacting to Mr. Shah’s statement, told The Hindu, “There are several provisions in the Constitution, like Articles 371 (special status to Maharashtra, Gujarat), 371A (Nagaland), that are also temporary. The reservation for Dalits was initially meant only for 10 years, but it has continued for more than 50 years. It is obvious they [the Bharatiya Janata Party] want to do something, but the Constitutional, legal and political implications will have to be looked into.”
Maharaja Hari Singh, the ruler of J&K, signed the Instrument of Accession on October 26, 1947 to accede in respect of only three subjects — Defence, Foreign Affairs and Communications. On April 20, 1951, Dr. Singh issued a Proclamation constituting a 75-member Constituent Assembly (CA) for the purposes of framing a Constitution for the State.
Faizan Mustafa, Vice-Chancellor of the National Academy of Legal Studies and Research (NALSAR), Hyderabad, said 43 presidential orders had been extended to J&K through Article 370 and the Supreme Court had made it clear that it was temporary only in the heading.
‘Cannot abrogate’
“The President cannot abrogate Article 370 unless there is a concurrence of the CA of J&K. But the CA was dissolved and not adjourned. If we go purely by text of the Indian Constitution, you will require first a recommendation from the CA of Kashmir and then a presidential order. Now, since the CA is not there, so take the approval of the State Assembly. But if you take a narrow view, the Legislative Assembly is not a replacement of the CA,” Mr. Mustafa said.
Dr. Singh concurred. “A lot of Articles have been extended to J&K with the consent of the State Assembly. For this major change, the Supreme Court will have to take the final decision. There are conflicting legal opinions and it ought to be challenged in the SC,” he said.
Onus on Assembly
A senior government official said that any proposal to change the arrangement should first come from the Assembly.
Clause 3 of Article 370 states, “Notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: provided that the recommendation of the Constituent Assembly of the State referred to in Clause (2) shall be necessary before the President issues such a notification.”
On June 26, the Centre informed the Rajya Sabha that “At present, Article 370 is part of Constitution of India under the title ‘Temporary provisions with respect to the State of Jammu & Kashmir’ and Article 35A is contained in the Constitution (Application to Jammu & Kashmir) Order, 1954 issued by the President of India under Article 370.”
On December 20, 2017, the Centre informed Parliament that, “No proposal regarding abolition of Article 35A and Article 370 in respect of Jammu & Kashmir is at present under consideration of the government.”
Prasanta Patnaik