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THE DEVIL TRULY LIES IN THE DETAILS

ARTICLE 370 AND THE BIFURCATION OF THE STATE OF JAMMU AND KASHMIR:

 

 

By Keith Nongsteng

 

            On August 6, 2019, the Government of India under the leadership of Prime Minister Narendra Modi took an extremely bold decision to abrogate Article 370 of the Constitution  of India vide a notification issued by the Ministry of Law and Justice in the name of the President of India. A day earlier, the President of India issued The Constitution (Application to Jammu and Kashmir) Order, 2019 which effectively supersedes the erstwhile Constitution (Application to Jammu and Kashmir) Order, 1954. This momentous occasion can be considered as the NDA Government’s “Tryst with Destiny”. Indeed, the BJP claims to have delivered on one of its biggest election promises which it has so properly highlighted in its 2019 election manifesto. Going a notch further which has come as a delightful shock to many, even within the party ranks, the Jammu and Kashmir Reorganization Bill, 2019 was introduced and subsequently passed in Parliament. The Bill has received the assent of the President of India and is now an Act of Parliament. The Act bifurcates the state into two Union Territories – Jammu and Kashmir being one single entity and Ladakh being the other. The purpose of this article is not to dwell on the political, military or socio-economic aspects of these recent developments, but rather it is an attempt to try and establish certain legal facts whether the Government of India’s actions followed proper constitutional procedures and whether said actions can stand the test of judicial scrutiny. The views in this article should not be inferred in any way to be above the wisdom of the venerable Supreme Court of India.   

Historical antecedents of Article 370

To truly understand the entire issue surrounding Article 370 and how it came to be incorporated into the Constitution of India, we must first turn our attention to history. History, as they say, is the library of all derived knowledge. On  October 26, 1947, the ruler of the princely state of Jammu and Kashmir, Maharaja Hari Singh, signed the Instrument of Accession under the provisions of the Indian Independence Act, 1947 whereby his kingdom agreed to accede to the Dominion of India. Defense, Foreign Affairs and Communications were ceded to the Government of India. It would be interesting to note that whereas other princely states signed Merger Agreements, Jammu and Kashmir did not. The state’s relationship with India is of a very special nature. Thus, the Constituent Assembly of Jammu and Kashmir was convened in 1951 by proclamation of the Yuvraj of Kashmir, who retained his full residuary sovereignty as per the terms of the Instrument of Accession. The Constituent Assembly of Jammu and Kashmir was thus completely within its rights to draft and adopt a constitution and to decide for itself the role that the Government of India will play in Jammu and Kashmir in future. It must be noted here that the J&K Constituent Assembly consequently adopted a resolution stating that Jammu and Kashmir is an integral part of India and thus, question of secession or independence does not arise under any circumstance.

Article 370 of the Constitution of India can be considered as the provision that cements India’s relationship with Jammu and Kashmir. Under Article 370 (1), the powers of the Parliament of India to freely make laws for the state are limited to only those matters specially mentioned in the Instrument of Accession. In such specified matters, the Parliament of India only needs to “consult” the Government of Jammu and Kashmir. Further, in any other matter not specifically mentioned in the Instrument of Accession, the Parliament of India requires the “concurrence” of the J&K State Government. Under Clause (3), the President of India is within his constitutional rights to abrogate Article 370 if, and only if, he has received the recommendation of the J&K Constituent Assembly to do so. Furthermore, to safeguard the territorial integrity of the state, the 1954 Presidential Order on Jammu and Kashmir stated 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”.

            After having revisited the historical facts, let us now consider the case on a point by point basis. It would be utterly futile to draw a conclusion on an issue based upon the hype created by the political parties and the media at large. As mentioned earlier, we will attempt to determine the constitutionality (or the lack of it) in the recent amendments to the Constitution of India. The issue of alterations to the Constitution of India with respect to the state of Jammu and Kashmir pertains to two broad issues: Article 370, and the bifurcation of the entire state. Let us deal with them under each sub heading

Article 370: A legal-constitutional reading  

Though this Article is widely considered to be a “temporary” provision and was largely projected as such by erstwhile governments, but the matter is not so simple. In 2015, the High Court of Jammu and Kashmir ruled that Article 370 has assumed a place of permanence in the Constitution of India. In 2017, the Hon’ble Supreme Court of India, in the SARFAESI Case had ruled that Article 370 is not a temporary provision. As per Article 370 itself, the only way the article can be deleted or modified in any form is through the recommendation of the J&K Constituent Assembly. However, the Constituent Assembly was dissolved in 1957. The Government of India has amended Article 367 (Interpretation Clause) of the Constitution of India to add a proviso which states that a reference to the J&K Constituent Assembly shall be taken to mean a reference to the J&K Legislative Assembly. Now here lies the problem. One constitutional provision cannot be made to run counter to  another constitutional provision. This is against the tenets of basic constitutional law. Now, in Section 147 (c) of the J&K Constitution, the Legislative Assembly of the State is not authorized to make any law which pertains to the provisions of the Constitution of India as applicable, in relation to the State. Ideally, it would have been lawful for the President of India to seek advice from the Hon’ble Supreme Court of India under Article 143 as to the question of what constitutes a “Constituent Assembly” in the present times. Even though the advisory power of the Hon’ble Supreme Court of India is not binding in this case, yet it would carry a powerful legal backing for the Government of India. Furthermore, there has been no Legislative Assembly in Jammu and Kashmir since last year. The recommendation required under Article 370 (3) was given by the Governor of Jammu and Kashmir unilaterally. How can the Governor of a state under President’s Rule under Article 356 take such drastic decisions without the advice of an elected state government? Where is the Legislative Assembly in this case? The Governor of Jammu and Kashmir is a nominee of the Central Government, and his unilateral decision is logically construed as an order from New Delhi. There is a question of lack of procedural law that needs to be examined here. In fact, it is a genuine case of conflict of interests. Hence the Constitution (Application to Jammu and Kashmir) Order, 2019, and the Notification of Ministry of Law and Justice No. G.S.R. 562(E) cannot stand the test of judicial scrutiny as they have no legal standing to derive their existence whatsoever. They are both half-cooked laws.

Bifurcation of J&K illegal?  

It is an undeniable fact that under Article 3 of the Constitution of India, the Parliament has the complete power to alter the names, boundaries and areas of any state in India. The President of India need only obtain the views of the concerned state, which he may or may not accept. Jammu and Kashmir is the exception. Article 3 of the Constitution of India was extended to the state via Presidential Order 1954 with the additional proviso that no alteration to the territory of the state can be made by Parliament without the consent of the J&K Legislature. In this case again, the Government of India has committed a fraud against the Constitution. Where is the J&K Legislature to grant consent? The Governor is not entitled to speak for the people of Jammu and Kashmir as he is not even an elected representative! It is a sham that needs to be challenged in Court. The constitutionality of the Reorganisation Act mitigates the idea of co-operative federalism. True, India is not a pure federalism but it is not a pure unitary nation either.

The legal implications of the abrogation of Article 370 and bifurcation of the state are many, and that is a subject that must be dealt with in a separate article. As we are aware, a fresh batch of petitions has been filed before the Hon’ble Supreme Court of India challenging the Government of India’s decisions. These are times to watch out for – to observe the interpretation of constitutional law and the meaning of jurisprudence altogether. The Court will have a very great role to play.

(The author is a student of law and is based in Shillong)

 

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