Author: Maitreya Ghorpade
This article was submitted as an entry for the Literary and Artistic Competition organised by Lawctopus on Article 370.
What is an abrogation and has Article 370 been abrogated?
An abrogation is essentially an act of cancellation or invalidation of a law. Article 370 still exists in the Constitution but its effect has simply been diluted to a degree of non-existence by virtue of the government’s actions.
So what was the problem with Article 370?
Article 370 limited the application of the Constitution to the State of Jammu and Kashmir. The Article itself provided for the power of the President (read: Cabinet) to pass an order modifying or amending Article 370 itself. Such was, however, subject to recommendation by the Constituent Assembly of J&K (The body tasked with the responsibility of creating the Constitution of J&K), which ceased to exist after the creation of the J&K Constitution, in 1957.
This is essentially the entire bone of contention and why (in part) there are individuals saying this move was unconstitutional.
What has changed in the Constitution then?
What was directly amended was the Article used for interpretation of the Constitution, viz., Article 367 wherein a Clause was added which specified that a ‘Constituent Assembly’ should be interpreted as a ‘Legislative Assembly’. So in essence what has been amended is Article 370, since what was previously requiring the Constituent Assembly’s discretion is no longer necessary.
Another clause was added which had the effect of replacing the Legislative Assembly’s assent with that of the Governor’s.
This poses slight problems, firstly because of the manner in which this domino-like effect was created, wherein the Constituent Assembly’s assent was replaced with Legislative Assembly and that was replaced with Governor, since the Governor is not a people’s representative, but (in practice) merely acts on the Centre’s direction.
This is also why Left-leaning parties have opposed this move stating that such fundamentally life-altering actions must be backed by the will of the people.
Whether the government can split the State into two Union Territories?
That is dependent on whether you hold the previous move as legally valid or not. Article 3 of the Constitution prohibits any shifting of State boundaries without consultation with the State Government concerned.
Now since the State Government stands suspended, and as per the recent Amendment, the Governor acts as a proxy for the State Government, perhaps here too, the same logic can be said to be applied. Such however seems a little tough to palette since it undercuts the very essence of federal democracy, a rule by the people.
Is all of this legal?
That’s a difficult question to answer. This is one of those issues that will ultimately be decided by the Supreme Court, since it involves a great deal of interpretation on matters that don’t really have a wrong or right answer. However, it is my humble opinion that the odds of this move being struck down are rather abysmal.
We have to analyse how the Court has deliberated upon issues involving such widely discussed and politicized issues, such as Sabrimala, to get a sense of the manner in which they too have become susceptible to larger narratives and societal emotions.
There are those that are even of the opinion that even if such move was constitutionally invalid, it is a welcome move since it ultimately aims at unifying the nation and that Article 370 was the real impediment in doing so. On the other hand, should Constitutional values, such as those prohibiting the doing of something indirectly which cannot be done directly, be subject to the discretion of the ruling Government and the fluid and uncertain desires of the majority population?
One could ask though that what good are merely words of the Constitution compared to the real loss of life and degradation of its quality on the streets and if those words were indeed the impediment to betterment, then to be done away with them and work towards a better life for all. This is all dependent, therefore, on people actually seeing a better life, better prospects, happier existences. Will they get those?
Is this, as several on the Left have said, the death of Indian democracy?
That seems to be a statement made more with emotion than logic. It is undoubtedly a unique situation we find ourselves in, and will lead to some serious repercussions, possibly even a stricter crackdown on the citizens of the Valley but to say it is the death of the Indian democracy seems to be more like an attempt to gain eyeballs than a cogent analysis of the situation.
For instance, as everyone’s new favourite BJP MP Jamyang Tsering Namgyal would have you believe, the citizens of Ladakh have finally got their wishes fulfilled. It is even in line with a historic disassociation that its (majority Buddhist) citizens felt from the rest of the State. Their borders are now opened up for increased investment, which apparently does make them happy.
The citizens of the Valley are undoubtedly perturbed by the curtailment of any sorts of means of communication, but to say that our democracy has seized to exist because of this move is as ludicrous a belief as saying that ALL problems J&K faced will now be solved, or even, that J&K will become the most developed state in India within a span of 5 years.
Could this move have been implemented by a proper discussion and inclusion of the citizens of the State?
Seems unlikely. Given that the area witnessed an incredible upsurge of separatism and militancy, any hint of the move being pushed would have only given rise to acts of terrorism and extremism. Section 144 would then inevitably have to be implemented, and ultimately, a stalemate would the result, as has been the case for over 70 years.
Therefore, although the idea of discussion seems like one we would all love to cherish dearly, in my opinion, it would have only led to more loss of life and property.
Can such a move be witnessed in other states of the country?
Theoretically, yes. There is nothing preventing the centre from declaring the President’s rule in another state (save Constitutional safeguards) and proceeding in the manner it did with Jammu and Kashmir. Practically, however, it seems unlikely for the vast majority of states. For example, states like Maharashtra and Gujarat have little to worry about since they aren’t an ostensible reason such as political instability or a breakdown of governance.
However, that isn’t a very promising matrix to go by and doesn’t inspire much confidence in the hearts of states witnessing political turmoil. Needless to say, however, that Jammu and Kashmir have always been a peculiar state with its own set of problems.
What were the problems with the Kashmiri society?
The Kashmir Valley saw problems of increasing army presence, unemployment, rise in militancy, a constant stream of anti-India rhetoric, and in general low economic stability coupled with an increasingly insular identity which saw incidences of stone-pelting against convoys of State machinery.
There was also a largely ineffective, if not counter-productive, State government, which has done little to aid the growing problems of unemployment, militarism, as well as failed in delivering the governmental services of food and health to the grassroots level.
Does this move address these problems?
I’m not sure it does entirely. Yes, the move does mean that corporations and businesses can now set shop in Kashmir, but the fact of purchasing land in Kashmir is still a while away as those were governed by state laws which will now need to be declared invalid by virtue of the changes made in Article 35A and 370.
Also, in the previous regime, although there existed some barriers to land possession, it hardly stopped the corporate bigwigs such as The Taj Group and The Lalit from opening up hotels in Kashmir. Furthermore, Jammu and Kashmir already boast of better performance than the national average on several key indicators such as infant mortality, reproduction rate, etc.
It also has one of the best Land reorganisation Acts in the country, which means that a vast majority of its citizens were in legal possession of acres of land, which is more than what can be said of the rest of the nation. Jammu and Kashmir haven’t witnessed a single incident of a farmer’s suicide, and in comparison, the numbers from economically ‘developed’ states like Maharashtra are deeply saddening to say the least.
Furthermore, let’s understand that given the kind of frenzied situation that is witnessed in the Valley, whatever investment flows in, will be directed towards areas of Jammu and Ladakh since investors will be wary of making any kinds of investments in the Valley.
The manner in which this move was implemented (curtailment of various rights), as well as the affinity most of the J&K citizens had for Article 370, means that the anti-India rhetoric is only bound to increase. Furthermore, given the house arrest of local leaders, it is going to be increasingly difficult to find an alliance that will help the transition that the Central government so desperately wants.
The Central government can now, however, address the gross incompetence of State governments, by finally delivering proper systems of the essential infrastructure of health, sanitation, food, and water, to people of the state. However, centralization of power only leads to a unique set of problems and relying on an overworked centre to ensure speedy and effective remedy to all the failings of the State government is wishing for too much.
Does this move, then, address some of the worst problems J&K was facing? Depends on which side of the fence you sit