Excerpts from a book that discusses its constitutional history
A picture of the 2011 book by constitutional expert A G Noorani, titled Article 370: A Constitutional History of Jammu and Kashmir
A 2011 book by constitutional expert A G Noorani, titled Article 370: A Constitutional History of Jammu and Kashmir, provides insights on the negotiations preceding its enactment, the significance of the Article, and the constitutional evolution of the State and its relationship with the Union of India from 1946 to 2010.
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In the excerpts below the then Union Home Minister G L Nanda takes on abrogation of Article 370, on 4 December 1964:
2. Union Home Minister G.L. Nanda on Abrogation of Article 370, Lok Sabha, 4 December 1964
Lok Sabha Debates, 4 December 1964, Volume XXXIII, cols 3449–65
(Omission of Article 370) by Shri Prakash Vir Shastri
Mr. Speaker: The House will now take up further consideration of the following motion moved by Shri Prakash Vir Shastri on the 11th (p.306) September 1964, namely:—‘That the Bill further to amend the Constitution of India, be taken into consideration.’ Five hours had been allotted for this. 4 hours 47 minutes have already been exhausted. Now, I am calling upon the hon. Minister of Home Affairs to reply.
The Minister of Home Affairs (Shri Nanda): Mr. Speaker, Sir, I am aware of the fact that what we are dealing with here on this occasion is an important question. I am aware of the fact that this question has deeply stirred the minds and hearts of many Members of this House.
This discussion has given me a great deal of emotional satisfaction whatever else may be the outcome of it. It has brought out clearly that there is practical unanimity among the representatives of all the parties here, and I take it, of the various political parties in this country, in the matter of the approach to the question of Kashmir.
This discussion also reflects a sense of urgency. I recognise that. I appreciate that.
Therefore, if I have to urge the Members that at this juncture it may be better to follow a different approach from what has been chalked out in the Bill before the House, I hope I shall not be misunderstood and the plea that I am making will not be taken amiss. I shall explain this plea in two ways, first, in terms of the Constitution, that is, the legal and constitutional arguments that arise in this case and secondly in terms also of certain practical considerations, in view of the interests of the nation.
I shall take up first the arguments relating to the Constitution. I take my stand on the Constitution of India as it is.
Taking the Constitution as it is, let us understand the role of article 370 and then see what happens, if this article is abrogated, or removed and taken out of the Constitution by an amendment of the Constitution on the lines of this Bill. I have a point to urge regarding the procedure also, that is to say, the procedure adopted about the proposed amendment through this Bill. (p.307) The power to amend this Constitution is derived from article 368. If the hon. Member looks at that article, he will find that there is at the bottom a proviso which reads thus; the footnote reads as follows:— In its application to the State of Jammu and Kashmir, to article 368, the following proviso shall be added:— ‘Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of Article 370.'
So, my hon. friend will have to take shelter under article 370 itself in order to bring forward an amendment, and certain procedures have to be gone through. I may be corrected if I am wrong. My hon. friend opposite is an expert on constitutional law, and he may correct me if I am wrong. But this is my straight reading of the Constitution. Therefore, as long as we have not taken into consideration to that this qualification or this proviso which excludes the scope of amendments to article 370 without certain steps having been taken under article 370 itself, we cannot amend the Constitution; those steps have not been taken, and, therefore, this Bill will suffer from an inherent disability. This may be taken up later on, if need be and if necessary. But apart from this, if the operation which the Bill visualises, namely, the removal of article 370, is carried out, we are left with a complete void as far as any improvement in the administrative relation with Jammu and Kashmir is concerned hereafter.
There will be a total block in the way of any such further change as we might be intending to make. We have been making changes all the time, every year. I will say something more about that. But any further change on the lines of the extension of the Constitution to Jammu and Kashmir with which we are familiar now, cannot be carried out if we take away article 370. If it is imagined that by the repeal of article 370 all the provisions of the Constitution will automatically apply to Jammu and Kashmir, it is a very erroneous reading of the constitution. As things stand—the impediments in the way of achieving uniformity—it is a question of uniformity in the administrative relations, in the administrative setup; it is not a question of integration; that should be made clear. It is only about uniformity - the intention to bring about (p.308) uniformity with the rest of India. - The impediments in the way of uniformity are not created by article 370. These impediments are strewn through the pages of the Constitution. In a hundred places, there are those provisions which take away the force of application of the Constitution to Jammu and Kashmir. What will happen to them? Remove 370. They remain.
Excerpted with permission from Article 370: A Constitutional History of Jammu and Kashmir by A G Noorani published by Oxford University Press.
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