As the state assembly election in Jammu and Kashmir begins today, the home minister’s call for a “debate” on Article 370 of the Indian Constitution appears to be a step in the right direction. Indeed, there could be debate and discussion by all, including those who may not be connected to the subject, to try and resolve — or at least, reduce — the charged atmosphere. In reality, however, this issue is often ‘legally’ an unknown commodity and, more often than not, an emotive and unexplained subject of irrational, irrelevant and unfocused public discourse, lacking depth and logic.

Before getting into Article 370, it has to be remembered that Jammu and Kashmir had its own Constitution since 1939 and an ‘upgraded’ new Constitution of 1957, according to which the state’s own legislative assembly has the option of (a) voting to “extend” a Union Act to its own state using a special legislative procedure; (b) “voting” to enact a state-specific law of its own, using the traditional state-level drafting process, or (c) simply ignoring the Union Act in toto.

In a way, it would not be wrong to infer, therefore, that Jammu and Kashmir, as one of the 29 states of India, is like, or akin to, the Concurrent List subjects in which both the country’s capital and the state co-exist, virtually at par, like the subjects thereof which can be dealt with by either of the two stakeholders. Thus, when the accession of Jammu and Kashmir to India took place, the Union Parliament had no jurisdiction in any matter except defence, external affairs and communications. And sovereignty, so far as the internal administration of the state of Jammu and Kashmir was concerned, continued to be under the jurisdiction of the Maharaja or ruler thereof, in accordance with the Clause 8 of the Instrument of Accession, which ran thus: “Nothing in this Instrument effects the continuance of my sovereignty... under this Instrument”. Understandably, this created quite a confusion in the mind of all types of contemporary Constitution experts, thereby leading to a spate of contradictory thinking and a variety of interpretations of the actual acts of accession undertaken by the ruler of Jammu and Kashmir in 1947.

Against this background of non-acceptance and non-applicability of the Indian Constitution, special provisions had to be made to cover this unique case of the accession of Jammu and Kashmir to India — a scenario aptly described by N. Gopalaswami Ayyangar: “The relationship of all the States with.. India, till India became a Republic, was based on the Instrument of Accession. But whereas in case of other Indian States ‘Instrument of Accession’ will be a thing of the past in the new Constitution... it would not be so in the case of Kashmir, since that particular State is not yet ripe for this kind of integration.”

Thus with the promulgation of the Constitution of India on January 26, 1950, came the application of Article 2, stipulating, “Parliament may by law admit into the Union, or establish new States on such terms and conditions as it thinks fit.” Since the words, “as it thinks fit”, apparently gave the Indian Parliament a discretionary power, it was used in the case of Jammu and Kashmir, conferring thereon a “special status” owing to “extraordinary circumstances” through which it was passing. Consequently, this special status (under Article 370) gave birth to non-acceptance of the Constitution of India as a whole, and reserved for Jammu and Kashmir the right to frame its own Constitution, unconditional acceptance by all other princely states of the entire Constitution of India, and the provisions thereof notwithstanding. Prima facie, it must, therefore, be admitted that a plain reading of this article implies a “division of sovereignty” in a federal-structured Constitution.

Here again, it needs to be recalled that although the word, “federation”, has not been used even once in the entire Constitution of India, in reality the words stipulated in Article 1 of the Constitution — “India, that is Bharat, shall be a Union of States” — says it all: the Indian Constitution is not a unitary, but a federal, Constitution. And it has been aptly referred to as a “federal structure with unitary features”. Nevertheless, it continues to be a federal structure for all times, except during “emergency”, when the Union government reserves the right to convert the state temporarily into a unitary state. Thus, in normal times, the Centre cannot encroach upon the exclusive jurisdiction of the States.

Coming back to Article 370, Sardar Patel, then minister of state in India, had publicly stated, “In view of the special problem with which the government of Jammu and Kashmir is faced, we have made a special provision for the continuance of the constitutional relationship of the State with the Union on the existing basis.” Thus the “existing basis” were the Instruments of Accession and the special provisions embedded in Article 370 of the Constitution of India.

In reality, however, Part XXI of the Constitution of India (which contains Article 370) categorically specified it as ‘Temporary, transitional and special provisions’. And that perhaps makes it an attractive subject for a national debate at this point of time. What does the phrase, ‘temporary, transitional and special provisions’, mean? How long is long or short enough, or how long can the shelf-life of ‘temporary and transitional’ be? There is no answer. Nor does the Constitution define and describe the span of life of the words, ‘temporary, transitional’, and the continuance of the ‘special provisions’.

In the absence of such profound non-clarification, one has to fall back on the relevant and operative provisions and parts of Article 370. Two words, “Consultation” and “Concurrence”, of Article 370 hold the key as the said provision begins with the words, “(b) (i) the power of Parliament to make laws for the said State shall be limited to... the Union List and the Concurrent List... in consultation with the Government of the State... (ii) Such other matters... with the concurrence of the Government of the State” (the italics are mine).

A redeeming feature of Article 370, however, is the sub-clause (3): “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... as he may specify”. In spite of this, the president of India’s power gets restricted with the last sentence of Article 370(3): “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”. Thus, even the president of India can initiate no action without the “recommendation” of the state legislature. Clearly, therefore, Indians cannot look anywhere except at their own ability to create a classical case of ‘checks and balances” with the semantics of Article 370 of the Indian Constitution.

Added to the Constitutional provisions are the political halla-bol of all sections in which each party is unto its own agenda. In the process, the salient features of the law are often missed. There are several interlocked legal documents between India and Jammu and Kashmir. The 1939 State Constitution empowered the state ruler to seek the help of India to survive foreign invasion. India sought and got legal accession from the ruler thereof. Subsequently, the Indian Constitution fully legalized the state as part of India with “special and temporary” powers in place in 1950. And the 1957 Constitution of Jammu and Kashmir virtually turned all past legal documents permanent and perpetual, accepting it as an integral part of New Delhi. In this complex and complicated scenario, should we hurry the abrogation of Article 370? Can it really be done? This author is convinced that Article 370 cannot be plucked out in isolation. Yes, at times it may appear anachronistic, but today, as the home minister has suggested, “debate” is the way out.