Abrogation of Article 370: Legal?

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In this article, it has been argued that the without the recommendation of a constituent assembly for J&K, efforts to repeal the clause are legally suspicious.[1]

The Constitutional Order (C.O.) 272 brought by the Government of India on 5 August 2019 made Article 370 inoperative. This was possible because of the inclusion of sub clause to Article 367[2]. This could be one of the most consequential changes that has taken place after the 1989 outbreak of the insurgency or the 1998 nuclear tests by India and Pakistan.[3]So, let’s try to understand the legal provisions and the history. Article 370 was included in the constitution as temporary provision for J&K. Applicability of the Indian Constitution is dealt by Article 370(1)(c) and 370(1)(d). Article 370(1)(d) states that it is possible to make other provisions of the Constitution applicable to J&K with such “modifications as the President may specify by order”[4]Article 370(3) states that the president can cease the entire article via presidential order only if constituent assembly of J&K recommends to do.

This is where the inclusion of Article 367 comes in, as it changes the words “constituent assembly of the state” to “legislative assembly of the state.” The government also decided that under governor’s rule, the recommendation of governor to pass C.O.272 is equivalent to recommendation of the legislative assembly which currently doesn’t exist. This makes Government both the giver and recipient of consent, which is violative of the original provision because the government cannot replace State Government with an unelected Governor and Constituent Assembly of the State with the Legislature of the State. Since the reason behind giving decision making powers under Article 370 to the Constituent Assembly and State Government was that it would enable the will of the people of the said state to be reflected in any change in special status.[5]

So, although the president doesn’t have the power to amend Article 370 itself, but indirectly that is what the Presidential order purports to do. Under Article 370(1)(c), Article 370 is already applicable to J&K. Under Article 370(1)(d) the President’s has the power to modify and apply provisions of the Constitution to J&K other than Article 370. Since, Indian Constitution is now applicable, J&K now has two provisions that are contradictory to each other. As Article 367(4)(d) states that Constituent Assembly must be read to mean J&K Assembly but Article 370(3) states that the Constituent Assembly of J&K can recommend the abrogation of Article 370. This is problematic as the president is indirectly doing what he cannot do. President has exceeded than the power given to him under Article 370(1)(d) as Keshavananda Bharati case established that a “a constitutional functionary cannot use the powers given to him under the Constitution to do to the Constitution that which the Constitution never intended for him to do.” Even many supreme court decisions have established the fact that since the Constituent Assembly of Kashmir dissolved itself without making recommendation.so Article 370 is a permanent provision. Finally, the principles of legislative interpretation demand that, when it is vague, the meaning of a rule needs to be inferred through its own wording. The plain sense of the original provision should not be overruled by an interpretation clause i.e. Article 367(4)(d) cannot override Article 370(3).

Article 370(1)(d) allows the President to change only the current provisions of the Constitution when they are made applicable to J&K but President’s power to legislate provision in this way is suspect since he added a new provision i.e. Article 367(4).Since, J&K is actually under the President’s rule, the Presidential Order is also troublesome. As the provision for securing the approval of the J&K Assembly was dispensed with. The words ‘consultation’ and ‘ concurrence ‘ used in Article 370 are crucial as it demonstrates the artfulness of maintaining the preservation of the autonomy of Jammu and Kashmir. Can the President himself make a decision like this based on the imposition of the President’s Rule in a State? It is a violation of the pledge of India to federalism.[6].

“Ultimately no one people can keep another people in subjection against their will.” [7] There is another explanation why it is not possible to consider Article 370 as a part of the basic structure. The foundation of the relationship between the Union of India and the State of Jammu and Kashmir since independence has been that the will of the people of Jammu and Kashmir with respect to their State would be supreme. This is demonstrated by the comments made by Gopalaswami Ayyangar in the Constituent Assembly Debates, who at the time of incorporating Article 370 (then Article 306A) into the Constitution, pointed out that “that the will of the people, through the instrument of a constituent assembly, will determine the Constitution of the State as well as the sphere of Union jurisdiction over the State”.Also, the elected representative of the people of Jammu and Kashmir are ones who have the power to decide on the degree of legal autonomy that can be enjoyed by the state. Hence, people of state through their elected representatives should have had been given the choice to decide whether to put an end to Article 370 or not and accept the constitution as a whole. This way the basic structure of doctrine wouldn’t have stood in the way. To take fundamentally permanent decisions during the President’s rule, the legal criterion is that they must be necessary to achieve the goal for which they imposed the president’s rule in the state. But in this case, it fails to meet this criterion.[8]

While the change in the regime in August 2019 gave a chance to reset Kashmir but due to COVID 19 pandemic there was no “economic growth nor political devolution or grievance redressal, mass quasi-violent resistance may resume and even intensify.” [9]

In addition, when the bill was passed, the whole state of Jammu and Kashmir was turned into a public prison, the political representatives of the state were imprisoned at home, the general public of the state was stripped of their constitutional rights, section 144 of the Criminal Procedure Code, which forbids the assembly of no more than 5 persons at a place is enforced.

This was a blatant breach of the constitutional right to life and liberties, of the people of Jammu and Kashmir, as the people of the state had no say in their state’s policy, and the union government cleverly took it bypassing the various prohibitions guaranteed under India’s constitution. Furthermore, the suspension of telephone, broadcasting and internet networks has impeded the universal right to freedom of speech and expression.[10]

BIBLIOGRAPHY

  1. Alok Joshi and Rahul Kumar, Article 370 and the Reorganisation of Jammu and Kashmir,1, Institute of Peace C.S, 5,  1-9 (2019)
  • Balu g nair, Abrogation of Article 370: can the president act without the recommendation of the constituent assembly?, 3, INDIAN LAW REVIEW, 255-279(2019)
  • Jeet H Shroff, Four Reasons Why the Presidential Order on Kashmir is not kosher,yet, The Hindu B.L (Dec.14,2020, 7:30pm), Four reasons why the Presidential Order on Kashmir is not kosher, yet – The Hindu BusinessLine
  • Kashish Mahajan, The Abrogation of Article 370 and Bifurcation of Jammu and Kashmir – A Bridge Too Far, 9 INDIAN J. Const. L. 106 (2020).
  • S. P. Sathe, Article 370: Constitutional Obligations and Compulsions,25,Economic P.W, 932-933 (1990)

[1] Balu g nair, Abrogation of Article 370: can the president act without the recommendation of the constituent assembly?, 3, INDIAN LAW REVIEW, 255-279(2019)

[2] Alok Joshi and Rahul Kumar, Article 370 and the Reorganisation of Jammu and Kashmir,1, Institute of Peace C.S, 5,  1-9 (2019)

[3] Sameer P. Lalwani and Gillian Gayner, India’s Kashmir Conundrum: Before and After the Abrogation of Article 370 , US I.O PEACE, 3,3-4 (2020)

[4] Jeet H Shroff, Four Reasons Why the Presidential Order on Kashmir is not kosher,yet, The Hindu B.L (Dec.14,2020, 7:30pm), Four reasons why the Presidential Order on Kashmir is not kosher, yet – The Hindu BusinessLine

[5] Supra note 2

[6]  Supra note 4

[7] S. P. Sathe, Article 370: Constitutional Obligations and Compulsions,25,Economic P.W, 932-933 (1990)

[8] Kashish Mahajan, The Abrogation of Article 370 and Bifurcation of Jammu and Kashmir – A Bridge Too Far, 9 INDIAN J. Const. L. 106 (2020).

[9] Supra note 3

[10] Anubhav Lamba, Is Abrogation Of Article 370 Unconstitutional, L.S.I,( Dec.13,2020, 7:30pm), Is Abrogation Of Article 370 Unconstitutional (legalserviceindia.com)

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