Article 370 is infructuous according to the provisions of the Indian Constitution, the Constitution of Jammu & Kashmir, and because the raison d’etre for its promulgation have long disappeared in the light of certain historical developments which cannot be reversed; hence the Supreme Court should delete it from the Constitution, senior advocate Bhim Singh argued while challenging the discriminatory compensation rules cited by the State Government to justify a niggardly compensation of Rs two lakh for properties worth over Rs 84 crores that were gutted in the Kishtwar violence of August 9, 2013.
Contending that “No temporary provision can last for more than half a century in the history of a nation”, Bhim Singh took the debate opened by Narendra Modi during the Lalkar Rally in Jammu on December 1, 2013, a notch further. The BJP Prime Ministerial candidate had ruffled feathers by suggesting that there should be a discussion on whether or not Article 370 had benefitted or harmed the people of the State.
The J&K Government’s rigid stand over compensation to the victims of the Kishtwar violence brought to light the discriminatory compensation given to security personnel who died in the State in the line of duty on grounds of being State Subjects (Rs 5 lakh) and Non-State Subjects (Rs 2 lakh). The Supreme Court was startled when this fact came to its notice, and directed the J&K Chief Secretary Iqbal Khandey to justify this behaviour.
In an affidavit filed in September 2013, Iqbal Khandey justified the unequal compensation on grounds that J&K has a special status and Articles 14, 21 or Chapter III do not apply to it. He argued (para 4.1) that “The Constitution of India (as well as the constitutional scheme thereunder) do not apply in their entirety to the State of Jammu & Kashmir, but are subject to certain limitations and exceptions”. This, he claimed, was embedded in the Constitution of India, the State Constitution and Article 370.
Panthers Party political secretary Sudesh Dogra challenged this assertion and urged the Court to order an independent probe into the violence at Gool (July 18, 2013) and Kishtwar (August 9, 2013). She pleaded for full compensation for the properties of 107 persons, valued at Rs 84 crores, as the Kishtwar violence in which three persons died, occurred in the full presence of the State administration and elected representative; she also sought justice for the 92 policemen who were transferred peremptorily thereafter.
Arguing on behalf of the Panthers Party before a division bench comprising Chief Justice of India P Sathasivam, Rajan Gogoi and NV Ramana on March 5, 2014, Bhim Singh said the Chief Secretary’s view amounted to challenging that J&K is an integral part of the Union of India.
The Constitutional position, he asserted, is that Section 3 of the Constitution of J&K, on the Relationship of the State with the Union of India, says, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India”. Similarly, Article 1 of the Constitution of India refers to the First Schedule which mentions J&K at serial no. 15, “The territory which immediately before the commencement of this Constitution was comprised in the Indian State of Jammu and Kashmir”.
Denouncing the attempt to transform an integral relationship into a “political relationship”, Bhim Singh pointed out that J&K joined the Union of India via an identical Instrument of Accession signed by all Indian Princes. The State Government has removed Maharaja Hari Singh from the equation and stated that the Constitutional relationship between the Union of India and the State is governed by relevant provisions of the two Constitutions, Article 370, and various orders issued by the President of India under Article 370. In fact, Bhim Singh argued, “The constitutional relationship between a constituent or an integral part of the Union of India are governed by the Constitution of India and not by the Constitution of a State. A tail cannot wag a dog”.
More pertinently, Bhim Singh said, Article 370 had become infructuous because it was created only to deal with the Constitutional Monarchy, which was terminated on August 20, 1952 by a resolution of the J&K Constituent Assembly headed by Sheikh Mohammed Abdullah. Thereafter, J&K stood fully merged into the Union of India as the conditions inserted by the ruler of J&K at the time of Accession were automatically terminated.
Even under the temporary provisions of Article 370, the Government of the State meant the person recognised by the President as the Maharaja of J&K, acting on the advice of the Council of Ministers appointed under the Maharaja’s Proclamation of March 5, 1948.
Further, under Article 370(3), “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”. It was provided that the President would require a recommendation of the State Constituent Assembly.
But this provision was relevant only so long as the State Constituent Assembly existed. In 1957, the J&K Legislative Assembly was constituted and the State Constituent Assembly ceased to exist. Hence Article 370 became infructuous, irrelevant and outdated and not applicable in the constitutional relationship between J&K and the Union of India. The Indian Constitution was promulgated on January 26, 1950 and the J&K Constitution was promulgated in January 1957; it cannot override the former in any respect.
“My Lords, wisdom lies in daring”, Bhim Singh said and urged the Court to declare Article 370 as irrelevant in the interest of the unity, integrity and sovereignty of the Union of India so that there is no more discrimination with the people of J&K which was the sole reason for unrest, violence and anarchy in the state.
Rubbishing the State Government’s arguments to differentiate between State Subjects and Non-State Subjects, he added that Article 35A had no relevance with regard to the payment of ex-gratia relief to ‘Martyrs’ in ‘war’ and is only a tail of Article 370 which was inserted by Parliament to bluff the people of J&K. The truth, he informed the Court, was that the concept of ‘State Subject’ was replaced by ‘Permanent Resident’ in the J&K Constitution.
The Panthers Party urged the Court to direct the appointment of a retired judge of the High Court to probe the circumstances that led to killing of three innocent persons in Kishtwar on August 9, 2013. He charged that the inquiry commission appointed by the State Government was only to give a clean chit to the local MLA and Minister of State for Home who was removed from office following the riots. Thereafter, Sajad Kitchloo was reinstated and nothing was done about the loss of lives and property.
Niticentral.com, 8 March 2014