Indian Defence Review

The subjects and jurisdictions of the Center (Union) and States have been classified under Article 246 of Indian Constitution (1950) as (1) UNION list, (2) State list and (3) Concurrent List except for J&K and for J&K it could be said that it is done in Art-370 of Constitution of India. Similarly as Art-249 lays State list, it is Art-370 that specifies for the time being the procedure to be adopted by Union to operate upon J&K ‘specific’ State list. But, nobody has so far said that Art-249 is there to extend the Constitution of India to the States. Where as it is very often said by some that Art-370 is for extension of Constitution of India to J&K.

In case, as per the understandings that existed immediately after October 1947, there was a need to keep some state specific criteria for J&K, then a simple way would have been to lay down different Union and State lists as regards J&K under Art-246 itself. But the manner in which the Constitution was finally drafted in 1949/50 does not appear that wise an action looking at the undue controversies, where in, the J&K affairs have been made to land.

In the Constitution of India (1950) the States / Territories of India were classified (in Schedule-1) as Part-A States (9 States), Part-B (9 States including J&K), Part- C (10 States) and Part- D (1 territory) .

Part-VI of the COI (Art- 152 to Art-237) was incorporated as regards Constitutional / Legislative/ Executive provisions wrt to Part-A States. Part-VII of COI (Article-238- Application of provisions of Part-VI to States in Part-B of the First Schedule.) was incorporated to deal with Part-B states excluding J&K. Part- VIII (Art- 239 to 242 including Art-240 was there for creation or continuance of local Legislatures or Council of Advisers or Ministers) was incorporated to deal with the States in PART-C and Part-IX (Art- 243) was incorporated as regards THE TERRITORIES IN PART-D OF THE FIRST SCHEDULE AND OTHER TERRITORIES NOT SPECIFIED IN THAT SCHEDULE. Similarly Part-X (Art-244) was incorporated for administration of Scheduled Areas and tribal areas and Part-XI (Art-245 to 263) was incorporated for Legislative and administrative RELATIONS BETWEEN THE UNION AND THE STATES.

So, it was not only Indian State of J&K for which in 1950 some state specific provisions were kept in Constitution of India . A number of readjustments were done thereafter as per the needs and understandings that could emerge with experiences & local settlements like reducing classification of states from 4 to 2 classes, repeal of Article-238 (making part VII of constitution article less). Text of Article -370 too had built in intentions for modifications or repeal but since the affairs were not attended truthfully even by Delhi, the provision has instead been pushed in unfair controversies. It is the style in which Constitution of India has been drafted that has given opportunity to some people to raise extra constitutional controversies as regards Indian state of J&K.

Not only that, some people are trying to link the inclusion of Art-370 in COI with J&K’s being the only Muslim majority Indian State, some are even alleging that the suggestions for modification of Art-370 are aimed at for changing the demography of “Kashmir’. Such arguments only depict the frustration that ‘some’ people are living in who are not able to find any legal reasoning for them to call the temporary and modifiable provision (Art-370) an irrevocable and nonnegotiable article of Constitution of India. Those who say that Article -370 is non-negotiable, it is irrevocable, it cannot be amended and it is the only link of Indian State of J&K with India , should better read the text of Article -370 that itself lays down the procedure for its modification and repeal. It is different matter whether or not the people of India / legislature wish to adopt the procedure or not.

As said earlier Article -249 too is to define the Power of Parliament to legislate with respect to a matter in the State List in the national interest. But nobody has ,so far, said that Art-249 is to extend the constitution of India to the States. So, it is not correct to say that Art-370 is for extension of Constitution of India to J&K. Art-370-1{(b-ii) and(d)} in a way provides for procedure for the parliament to operate upon the J&K specific State list and not for extending Constitution of India to J&K.

Art-370 is named as temporary provision in Constitution of India where in there is broad description of J&K specific Union and State lists. under Clause- 1 (b) of Art-370 says—- “ the power of Parliament to make laws for the said State shall be limited to—

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify. But all these years people who have been projecting Art-370 as a symbol of J&K being not like other Indian States have succeeded to some extent.

Since, people of J&K have already suffered a lot let the ‘leaders’ and commentators be truthful atleast now while this Art. So, it would be better to rationally discuss the issues concerning Art-370 with unbiased mind and not get lost in debates. In case the provision has some good and can be still used for betterment in present form or by modification why not use the inbuilt provision for the good of more people. But let us at least have a review in terms of the text of Art-370 that should have been held long back.