On
5 August 2019, Home Minister Amit Shah announced in the Rajya Sabha that a
Presidential Order would be issued to abrogate Article 370 of the Constitution
of India, which provides special status to the state of Jammu and Kashmir. He
further said that Jammu and Kashmir would be bifurcated into two Union
Territories: UT of Jammu & Kashmir (with legislature) and UT of Ladak
(without legislature). A resolution to this effect was passed by the Rajya
Sabha on the same day.
The
Build-up
Ahead
of this announcement, the Union Government sent additional troops to the state
to ‘maintain peace and order’ in wake of an ‘intelligence input’. They went to
the extent of taking an unprecedented decision of suddenly cancelling the
Amarnath Yatra. Mainstream political leaders like former Chief Ministers Omar
Abdullah and Mehbooba Mufti were placed under house arrest, communication
services were withdrawn and curfew was imposed (it continues even now).
What
is Article 370?
Article
370 was inserted in the Constitution to provide special status to the state of
Jammu and Kashmir. It allowed the state to have a separate Constitution and
mandated the consent of Legislative Assembly with regard to application of Laws
made by Parliament in the state. This Article was in accordance with the
Instrument of Accession executed on 26 October 1947 by the ruler of the state,
Maharaja Hari Singh.
Clause
7 of the Instrument of Accession states: “Nothing
in this Instrument shall be deemed to commit me in any way to acceptance of any
future constitution of India or to fetter my discretion to enter into
arrangements with the Government of India under any such future constitution.”
Clause
8 states: “Nothing in this Instrument
affects the continuance of my sovereignty in and over this state, or, save as
provided by or under this Instrument, the exercise of any powers, authority and
rights now enjoyed by me as Ruler of this state or the validity of any law at
present in force in this state.”
The
Instrument of Accession makes it extremely clear that while the state of Jammu
and Kashmir acceded to the Union of India, it was promised certain autonomy.
The result of that was Article 370.
Is
Article 370 Temporary or Permanent?
The title of the Article is explicitly clear:
Temporary Provisions with respect to the state of Jammu and Kashmir. A plain
reading suggests that this was not meant to be a permanent provision. Moreover,
the Article itself provides for a procedure to abrogate it. Clause 3 of the
Article states that: “Notwithstanding
anything in the foregoing provisions of this article, the President may, by
public notification, declare that this article shall cease to be operative or
shall be operative only with such exceptions and modifications and from such
date as he may specify:
Provided
that the recommendation of the Constituent Assembly of the State referred to in
clause (2) shall be necessary before the President issues such a notification.”
However, the Jammu and Kashmir High Court in
October 2015 ruled that the Article 370 cannot be "abrogated, repealed or
even amended." It explained that the clause (3) of the Article conferred
power to the State's Constituent Assembly to recommend to the President on the
matter of the repeal of the Article. Since the Constituent Assembly did not
make such a recommendation before its dissolution in 1957, Article 370 has
taken on the features of a "permanent provision" despite being titled
a temporary provision in the Constitution.
The Supreme Court has also expressed a similar
view in the SBI vs. Gupta Holding case. Since the judgement is lengthy I am not
reproducing relevant portions of it. The Summary of it that since the State
Constituent Assembly has ceased to exist, the President of India would not be
able to fulfil the mandatory provisions required for its abrogation.
The Glitch
Article 370 (3) requires that the Constituent
Assembly of Jammu and Kashmir recommending repeal of the Article. The High
Court and Supreme Court have ruled that since there is no Constituent Assembly
now, this provision cannot be satisfied. However, even if we are to assume, as
stated in the Presidential Order of 2019, that the Constituent Assembly must be
construed as the Legislative Assembly, Article 370 cannot be repealed in this
matter.
As of now, there is no Legislative Assembly in the
State. It is under President’s rule since November 2018. The contention of Mr
Amit Shah is that since Article 356 in force, the power of the Legislative
Assembly is vested with the Parliament and therefore Parliament can pass a
resolution to that effect. This argument is fundamentally flawed. The
Legislative Assembly reflects the will of the people of that State. Under
President’s Rule, Parliament must only exercise powers that deal with basic
governance issues. Exercising other powers would be a gross abuse of
Constitutional morality. The nature of our Constitution is largely federal, in
the words of Dr Ambedkar, “The Draft
Constitution is, Federal Constitution in as much as it establishes what may be
called a Dual Polity. This Dual Polity under the proposed Constitution will
consist of the Union at the Centre and the States at the periphery each endowed
with sovereign powers to be exercised in the field assigned to them
respectively by the Constitution.......... The Draft Constitution can be both
unitary as well as federal according to the requirements of time and
circumstances. In normal times, it is framed to work as a federal system. But
in times of war it is so designed as to make it work as though it was a unitary
system.” Concurrence of the Assembly is therefore a must.
The Timing
This decision has been taken at a time when the
situation in Jammu and Kashmir is grim. It can be gauged by the fact that
participation in the recently concluded general elections was not that great.
Security and civilian casualties are at an all time high (in peacetime) under
the Modi Government. There is no elected government in the state. A decision of
this magnitude should not have been taken without consulting mainstream
political parties in the state, civil society (not separatists) and the
Parliament should have been taken into confidence. Furthermore, there is no
logical explanation about why the state is being converted into two UTs,
atleast on this there should have been consultation. I am reminded of what
Jayaprakash Narayan had said in 1966 on 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”.
The method of implementing this decision is
nothing but a Constitutional coup. The statutory resolution and the
reorganisation bill was circulated while the Home Minister was moving it. The
Supplementary List of Business in the Rajya Sabha was circulated after Mr Amit
Shah moved them. Even the emergency had a constitutional cover, this Government
could not manage even that. We are a parliamentary democracy, Dr Ambedkar says “Democracy is not merely a form of
government. It is primarily a mode of associated living, of conjoint
communicated experience. It is essentially an attitude of respect and reverence
towards fellow men.” None of this was followed, 5th August 2019
will recorded as a day when parliamentary democracy was murdered. That it was
done on the 92nd anniversary of the Parliament building is a matter
of shame.
Conclusion
The debate on Article 370 is being reduced to
binaries. It being used to build a cult image for Prime Minister Modi and
create a feeling of hyper-nationalism. In his concluding speech on 25 November
1949 while presenting the draft Constitution, Dr B R Ambedkar had warned us of
this danger. He said: “There is nothing wrong in being grateful
to great men who have rendered life-long services to the country. But there
are limits to gratefulness, as has been well said by the Irish Patriot
Daniel O’Connell, no man can be grateful at the cost of his honour, no woman
can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty.
This
caution is far more necessary in the
case of India than in the case of any other country. For in
India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its
politics unequalled in magnitude by the part it plays in the politics
of any other country in the world. Bhakti
in religion may be a road to the salvation of the soul. But in politics, Bhakti
or hero- worship is a sure road to degradation and to eventual dictatorship.”
No Article in the Constitution can be classified
into the binaries of good or bad. Let me turn to Dr Ambedkar again: “…however good a Constitution may be, it is
sure to turn out bad because those who are called to work it, happen to be a
bad lot. However bad a Constitution may be, it may turn out to be good if those
who are called to work it, happen to be a good lot.
...The
Constitution can provide only the organs of State such as the Legislature, the
Executive and the Judiciary. The factors on which the working of those organs
of the State depends are the people and the political parties they will set up
as their instruments to carry out their wishes and their politics.”
So is the decision to abrogate Article 370 a
masterstroke or a misadventure? That only time will tell, but the method used
is definitely a travesty of all principles of democracy.
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