Author: Bhoomika Sharma
This article was submitted as an entry for the Literary and Artistic Competition organised by Lawctopus on Article 370.
A few days ago, India underwent a major constitutional and political change, as the central government, through a presidential order, set in motion the revocation of Article 370. The order has been followed by a Bill through which the state of Jammu and Kashmir ceases to exist.
The government has justified its move by arguing that Article 370 was the root of terrorism in J&K, had ruined the state, stalled its development, prevented proper health care and education and blocked industries; and it was, therefore, necessary to integrate the region with the rest of India and develop it. It has also asserted that its move has popular support in Jammu, Ladakh and even in most parts of Kashmir.
Additionally, the State is being downgraded and divided into two Union Territories. The mechanism that the government used to railroad its rigid ideological position on Jammu and Kashmir through the Rajya Sabha was both hasty and stealthy. This move will strain India’s social fabric not only in its impact on Jammu and Kashmir but also in the portents it holds for federalism, parliamentary democracy and diversity.
In the present post, I would like to express my views on the correctness of the government’s decision, why the presidential order flouts the Constitution and is amenable to challenge before the Courts.
A BRIEF BACKGROUND ON ARTICLE 370
When India attained independence, freedom was granted to the princely states as well. These states had the option of either joining the Union of India, Pakistan or staying independent. Both India and Pakistan were making attempts to convince the rulers of these states to join their respective countries. The princely state of J&K was a sovereign state as of 15 August 1947 as per the constitutional law creating India and Pakistan.
It was in terms of such law that the then Ruler of J&K, Maharaja Hari Singh, who was the sole repository of power in the state, chose to accede to India through the accession instrument of 26 October 1947. Such accession by the Ruler, though unconditional, was only in matters of external affairs, communications and defence and certain ancillary matters.
The remaining subjects were within the domain of J&K government. The accession instrument expressly declared that nothing therein would affect the continuance of the sovereignty of the Ruler in or over J&K and these conditions were reflected in Article 370 by an order of 1954.
Another provision inserted by this 1954 Order was the proviso to Article 3 of the Indian Constitution. This provision mandates that “no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.”
In other words, J&K has not only not merged its territory into the Indian Union, but it has also explicitly preserved its territorial integrity and identity.
WHETHER ARTICLE 370 CAN BE ABROGATED?
Article 370 itself mandates a recommendation of the state Constituent Assembly before the President of India can declare it inoperative.
The state Constituent Assembly was dispersed after framing the Constitution of Jammu & Kashmir in 1957, without, however, making any such recommendation. Nor can a recommendation of the state legislature be a substitute for the requisite recommendation of the state Constituent Assembly. It, therefore, follows that the competence of any organ of the Indian State to declare Article 370 inoperative no longer exists.
The government vide the presidential order has amended Article 367 of the Constitution which is the interpretation clause. As per the amended Article, the expression ‘Constituent Assembly of the State’ as used in the Constitution is now to be read as ‘Legislative Assembly of the State’.
This in effect means that under Article 370, the President now requires the consent of the Legislative Assembly of the State and not the Constituent Assembly.
An important question that is bound to arise is why the government amended Article 367 (interpretation clause) and not Article 370 itself. The answer is twofold.
First, the erstwhile language of Article 370(3) did not allow the President to amend it without the concurrence of the Constituent Assembly, therefore the government cleverly changed the meaning of the expression ‘Constituent Assembly’ itself, to the ‘Legislative Assembly of the State’.
Second, since the last few months, J&K has been under the Governor’s Rule which means that the Governor has the power to assume to itself the functions and powers of the Government of the State (Section 92, Constitution of J&K).
The central government can argue that since, the powers of the Government of the State were currently with the Governor (including powers of the Legislative Assembly), he could grant consent as required under Article 370 for ceasing the operation of the provision.
The Presidential Order is tantamount to the President doing indirectly what he cannot do directly i.e. amending Article 370 through Article 367 because he has no power to amend Article 370 directly. This is problematic.
GOVERNOR HAD POWER TO GRANT THE CONSENT UNDER ARTICLE 370(3)
As per Section 92(1) of the J&K Constitution, every proclamation made by the Governor during the Governor’s Rule needs to be tabled before the State Assembly as soon as it is convened. The Governor can only take temporary actions and actions with permanent consequences are to be taken by the State Assembly only.
The justification behind such a rule is a basic principle of democracy i.e. the laws that govern citizens are made by their elected representatives which are the members of the assembly and not a Governor who is appointed by the Central Government. The Governor’s consent brings a permanent change to the governance of the state, which it is not empowered to do.
The Hon’ble Supreme Court in Prem Nath Kaul v. State of J&K [1959 Supp (2) SCR 270], while discussing the Article, opined that our Constitution makers assigned great importance to the final decision of the Constituent Assembly under Clause 3. In my opinion, the justification for such an importance could be that the makers wanted to vest in the Constituent Assembly, the task of protecting the state from acts of the Central Government, that are not in the state’s interests.
In the controversy at hand, the Governor could not have acted as the Guardian envisaged under the Article, as it was answering to its political appointee and would have the interest of the Centre in mind as against the interests of the state. The government has time and again reiterated that Part XXI of the Constitution which contains Article 370 is temporary in nature as evidenced from its title i.e. Temporary, Transitional and Special Provisions.
While this is true, one cannot ignore that this Part is as integral to the Constitution as any other, as held by the Supreme Court in Raghunath Ganpat Rao v. Union of India [1994 Supp 1 SCC 191]. Therefore, to see such an integral part of the Constitution being erased from existence in an unconstitutional matter, without any debate or discussion is shocking. Multiple Supreme Court decisions have established that Article 370 is a permanent provision precisely because the Constituent Assembly of Kashmir dissolved itself without making such a recommendation.
The law recognises acts of omission (in this case, not recommending the abrogation of Article 370). That is to say that by dissolving itself without recommending abrogation, the Constituent Assembly of J&K made clear its intention to not abrogate Article 370.
AN ATTACK ON FEDERALISM
India calls itself a Union of States. The Constitution guarantees every single state the right to self-governance which is why we have Chief Ministers in every state, unlike Union Territories where we have Lieutenant Governors appointed by the Centre.
Jammu and Kashmir signed to be a State and not a Union Territory. So, today, even after the President signs the piece of paper that was given just an hour of discussion to decide the fate of 1.25 crore people, it will have to pass through the state legislative assembly with a two-thirds majority. To the President, Amit Shah quoted the Governor’s consent as the consent of the State.
THE PRIDE INDIA TOOK IN THE UN’S ADVICE
When India approached the United Nations to solve the Kashmir crisis, the solution that was laid out had three conditions:
- Demilitarisation of PoK by Pakistan
- Demilitarisation by India
- A referendum to be conducted wherein the Kashmiris will decide their fate
Until today, owing to Article 35(A), no outsider could own a property in Jammu and Kashmir. This always gave an upper edge to India on the international platform which, unlike Pakistan, claimed that only the original inhabitants and their families live in Jammu and Kashmir.
So, if a referendum were to take place today, only the actual stakeholders would vote for themselves. Now, anyone can go in and be a resident of Kashmir. So, the bleakest possibility of a referendum is now permanently ruled out.
Were alternatives available? Yes, but these would either have required the concurrence of J&K’s properly elected representatives or a two-third majority in Parliament to effect constitutional amendments.
The government’s action is, from a legal standpoint, clever. But it is perhaps a bit too clever as the abrogation of Article 370 was a historical promise. Prime Minister Nehru himself agreed that Article 370 would be rendered obsolete by the passage of time.
The abrogation move may bolster the government’s ability to make the fruits of India’s economic progress directly available to Kashmir. Yet, the manner in which this has been done is unlikely to inspire trust in the ordinary Kashmir and may well cause lasting damage to the tradition of constitutional propriety.
I wish to state that any act no matter how righteous when done in violation of the principles of the Constitution is an act of constitutional impropriety and liable to be quashed. The words of Justice Mittar in Maharajadhiraja Madhav Rao v. Union of India, squarely apply to the present controversy.
The Hon’ble Judge opined that:
‘Breach of any of the Constitutional provisions even if made to further a popular cause is bound to be a dangerous precedent. Disrespect to, the Constitution is bound to be broadened from precedent to precedent and before long the entire Constitution may be treated with contempt and held up to ridicule. That is what happened to the Weimar, Constitution.’
In sum, a purported process to change the constitutional status of a sensitive border State has been achieved without any legislative input or representative contribution from its people. The bifurcation of States in the past cannot be cited as a binding precedent as, under Article 3 of the Constitution, the President seeks the views of the legislature of the States concerned, even if concurrence is not mandatory.
In the present scenario, J&K has been represented by an unelected Governor appointed by the Centre, while Parliament has ventured to ratify the conversion of a State into two Union Territories without any recommendation from the State.
Geographically and metaphorically, Jammu and Kashmir is the crown of secular India — a Muslim majority region in a Hindu majority country. Its people and leaders had chosen secular India over Islamic Pakistan, a fact that Islamists never reconciled with
Today, let us just take time out to read what Jayaprakash Narayan had to say in 1966 about Kashmir, “If we continue to rule by force and suppress these people and crush them or change the racial or religious character of their state by colonization, or by any other means, then I think that means politically a most obnoxious thing to do.”
Rajdeep Sardesai also has an interesting take on the whole issue, “Societies move ahead by instilling hope and confidence in its citizens, not by spreading fear and uncertainty. And genuine change never comes at gunpoint but through reforming hearts and minds.”
True, the special status of J&K was meant to end, but only with the concurrence of its people. The Centre’s abrupt move disenfranchised them on a matter that directly affected their life and sentiments. Moreover, this was done after a massive military build-up and the house arrest of senior political leaders, and the communications shutdown reveals a cynical disregard of democratic norms.