Is The Move to Remove Article 370 a Fatal Error or MasterStroke?

Author: Molly Tagore

This article was submitted as an entry for the Literary and Artistic Competition organised by Lawctopus on Article 370.

New Delhi, on 5th August 2019 ended the preferential treatment accorded to J&K that it had been enjoying for the past seventy years.
The Union not only applied its entire Constitution to the state but also bifurcated J&K into two Union Territories i.e. J&K with a legislature and Ladakh without a legislature.

All of it has recently caused a lot of hullabaloos not only among the Indian citizenry and media but also the world at large, particularly the neighbouring countries. The purpose of the article is to analyze this recent ‘historical’ event that took place.

A brief look at the major events leading to the above historical declaration:-

  • 1947: An Instrument Of Accession was signed between King Hari Singh and the then PM Jawaharlal Nehru on 26th October 1947 and the control of the defence, communication and external affairs was handed over to India.
  • 1950: The Indian Constitution came into force. Article1 defines J&K as the state of India. Article 370 accords special status to it.
  • 1952: The Delhi agreement was signed defining the relationship of the State of J&K with Union.
  • 1954: The Constitution of India (Application to Jammu and Kashmir) Order,1954 extended several provisions of the Indian constitution to J&K.
  • 1956: J&K adopted its constitution and declared itself as an integral part of India.
  • 1957: The constituent Assembly of J&K was dissolved and was replaced by a legislative assembly.
  • 1965: Titles of PM and Sadar-i-Riya sat officially changed to CM and governor.
  • 1975: PM Indira Gandhi and Sheikh Abdullah signed the Kashmir Accord and reiterated the importance of Article 370 and Kashmir being an integral part of India.
  • The 1990s: The Militancy was on the rise.
  • The 2000s: Terrorism, stone pelting, clashes between the forces and militants.
  • 2015: The BJP formed a government in J&K with PDP for the first time.
  • 2018: BJP government broke alliance with PDP and in December centre’s rule was declared in the state.
  • 2019: A presidential order revoked Article 370 and Article 35 A.

The question is whether Article 370 – A temporary provision or a provision that had acquired a permanent character?

✔ Article 370, a unique provision was included in the ‘Temporary and Transitional Provisions’ of the Indian Constitution. The marginal
note to it shows the intent of the constituent assembly was to keep it as a ‘temporary provision’ only.

✔ Also, virtually the entire constitution of India, with certain modifications has been applied to J&K by the Constitution
(Application to Jammu and Kashmir) Order, 1954 with the concurrence of the State government.

✔ But, the Supreme Court in its decision in State Bank Of India v Santosh Gupta(2017) 2SCC 538, observed that since the
Constituent Assembly has been dissolved, Article 370 has come to attain a permanent status, though, in its margin, it is described as
‘temporary, transitional provision’.

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✔ “Notwithstanding” anything contained in the other provisions of Article 370, subclause (3) of Article 370 gives power to the
President to revoke or modify the article but upon the recommendation of the Constituent Assembly of the state.
Keeping in view the above-said provisions, I am of the opinion that the continued existence of Article 370 had just remained a formality as it was intended to be only temporary and transitional’ provision. Therefore, its abrogation or modification can be carried out.

Whether abrogation of Article 370 has disregarded the constitution or the move is within the constitutional boundaries?

The Presidential Order has replaced the words “Constituent Assembly” occurring in 370(3) with the words “Legislative Assembly”.
In the present scenario, there is no Constituent Assembly in J&K. It was dissolved in the year 1958. Then how should the words ‘Constituent Assembly’ in 370(3) be interpreted?

✔ Looking at the legislative history we see that N. Gopalaswami Ayyangar who introduced the provision said, “the ‘will of the
people’ through the instrument of the constituent assembly will determine the Constitution of the state as well as the sphere of the
union jurisdiction over the state…”

✔ There was a PIL by Advocate Ashwini Kumar Upadhayay seeking a declaration to the effect that proviso to Article 370(3) had lapsed
with the dissolution of the constituent assembly on 26.1.1958 and thus it must be treated as a mere directory and not as mandatory.
The words ‘Constituent Assembly’ must be understood as the one which is for the purpose of the ‘framing the Constitution of the
state.’ Therefore, after the constitution is formed, it cannot be constituted for any other purpose.

✔ The Union Government has bypassed the words ‘Constituent Assembly’ to justify the President’s rule. But, one must understand what exactly is a ‘Constituent Assembly’?It is the body of representatives, who have been given the ‘constituent power’ by a democratic will to constitute a nation-state. As per my opinion, while abrogating article 370, there was no recognition of constituent power and the democratic will was not taken into consideration. If at all the words ‘constituent assembly’ have to be read down, it must be read down to consider democratic consent.

Does this abrogation undermine federalism?

Indian federalism is termed as quasi-federal in nature but not strictly federal. Federalism has been termed as a part of the basic structure of the constitution in Keshavananda Bharti v. U.O.I. Article 3 of the Indian Constitution does not guarantee territorial integrity to the states. Under it, is mentioned that Parliament by law can alter the area, boundaries or names of existing states. However, the bill before being introduced in the Parliament requires the state legislature to express its views on it.

J&K was the only exception. The Order of 1954 applied Article 3 but with an additional proviso stating, ‘no bill providing for increasing or diminishing the area of the state of J&K or altering the name or boundary of that state will be introduced in Parliament without the consent of the Legislature of the state’.

Thus in this way, J&K had a special privilege in protecting its territorial integrity. However, if one reads the Explanation I of Article 3, it is clearly written in the proviso(which mandates the recommendation of the views of the State Legislature, whose boundary/area/name is being altered), the word “State” does not include the word Union Territory.

According to me, it follows that since the Center has converted the state of J&K into two UTs, therefore the need for obtaining the consent of the State Legislature in the proviso is done away with.

Now, in the present, things have changed and the 2019 Presidential Order precedes 1954 order. The state of J&K is under President’s rule by the virtue of article 356 therefore, the state legislature could not have expressed its views on the 2019 Reorganization Bill. The centre acted accordingly and by taking the powers of the state legislature virtually gave itself its own consent.

However, in doing so, the Union government affected the federal nature of the constitution. Yet, on the face of it seems constitutionally valid as per the provisions of article 356.

Will abrogating the special status bring about a social change and end terrorism?

This issue is debatable and will be tested on the anvil of time. The reasons for the government to take away Jammu and Kashmir’s special status were many, namely, the rise of militancy and separatism in the valley, social alienation, unemployment, underdevelopment of the state because most of Center’s laws like the RTI Act, RTE Act, etc and beneficial schemes like Ayushman Bharat, etc were not applicable in J&K. Resultantly, the residents of J&K were being deprived of many benefits.

The government promises that women, Valmiki community members, West Pakistani refugees, Kashmiri Pandits will benefit from the move. Women and their children will no more be deprived of their right to property if they marry non-state subjects.

The Valmikis and West Pakistani refugees, who were denied the rights of voting and contesting in elections, struggled to have a dignified life, benefits of reservation and the refugees were denied the Permanent resident Certificates, despite living in the state of J&K for the past many years will now be able to own property, take admission in government education institutes, be eligible for employment with the government and vote.

The Kashmiri Pandits, whose forceful exodus from the valley deprived them of their homes will now be able to resettle in their homes. The long-standing demand of Ladakh to convert it into a Union Territory has been fulfilled and now it is upon the political will to distribute funds and make the promise of progress a reality in this region.

On the other hand, there is resentment from a section of people in Kargil region, they feel that since now Ladakh has been made a separate Union Territory without Legislature, they will be deprived of their right to vote and governance.

The Dogras of Jammu region are also concerned about their identity and their land from being sold to non-residents. The government must take important steps to allay their doubts and devise a method like Himachal Pradesh or Punjab wherein only residents, those who have been permanently residing in the state from a long-time period must be allowed to purchase or lease land.

The development in raising the social standards of the local residents at grass root level would depend upon the efficient working of the panchayats. The way forward towards progress will be when the government listens to the people and includes them in the decision making the process.

However, the question of eliminating terrorism from the state in its entirety does not seem to be too convincing because the separatist elements of the state will not accept the inclusion of J&K as another state of India so easily.

The outlook of the separatists is not going to be changed overnight. They need to be put in the right path of development so that they can take their mind off from the movement of separating Kashmir. For doing this successfully the State government and Central government must work in tandem. It is a long way to go. In the end, I conclude that the Instrument Of Accession was only relevant until the state of J&K joined the Dominion Of India.

It was signed because of certain specific events at that time, its continuation was only justifying the political motive of a few. Further, the intent of the makers was clearly to make it only a temporary and transitional provision, had they wanted it otherwise, they would have not included it in the ‘temporary and transitional’ part of the constitution.

Though ultimate rational motive, for which this entire drill of abrogating the special status was carried out by the Government, is ‘national integration’ or put directly, the integration of a state that considered itself separate from India; politically, culturally and socially.

Yet, I believe that the democratic consent should have been taken in some manner either by a special majority of the members of the State Legislature selected by fair elections or by some other constitutional manner.

The essay published does not reflect the views of Lawctopus.

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