Skip to main content

Colonial legacy? Scrutinizing legal challenges to abrogation of J&K’s special status

By Anuj Bansal, Sandeep Pandey*
In an unprecedented move to fulfill its manifestoed promises, the Central government has, through a Presidential Order, rendered Article 370 of the Indian Constitution inoperative ipso facto. While the frenzy of netizens has hailed it as a firm footing towards full integration of the state of Jammu & Kashmir (J&K) into the Union of India, certain legal infirmities could pose a stiff challenge to the Presidential action and thus halt New Delhi’s objective.
To begin with, there is much speculation as to whether a unilateral mending of the status quo of J&K is constitutionally permissible? However, a plain reading of Article 370 (1) of the Indian Constitution clarifies that the President of India, in concurrence (consultation in case of subjects as contained in the Instrument of Accession, 1948) with the Government of the State of J&K, can extend the applicability of all or any of the parts of the Constitution to the state.
The question, therefore, is to determine if Governor’s concurrence is tantamount to the concurrence of the state legislature. Supporters of this order will rely on the Supreme Court’s ruling in Mohd Maqbool Damnoo v State of J&K to establish that a Governor is legally competent to give concurrence as stipulated in Article 370; but a closer perusal of this issue in light of the Constitution of J&K clarifies that the aforesaid case was only concerned with the replacement of the erstwhile titular head Sadar-i-Riyaasat with the Governor.
Furthermore, Resolution of the Constituent Assembly of the state of J&K dated August 19, 1952 contains that the Governor, even though the Head of the State, is to be recommended by the Legislative Assembly through election. The two are, therefore, distinguished. That the legislature cannot do indirectly what it cannot do directly is an undisputed legal principle and the Centre’s attempt to use Governor’s concurrence as a proxy for the Legislative Assembly is unlikely to pass the judicial scrutiny.
More problematic, however, is the addition of Article 367 (4) by the virtue of this order; which is in fact a Constitutional Amendment and beyond the scope of a Presidential Order under Article 370 (1) because Article 370 (1) gives President the right to only apply the provisions of Indian Constitution to the State of J&K and not amend them.
A catena of cases has settled the legal position in this regard, holding that no executive order can amend the law. This argument is further strengthened by the fact that even the legislative powers of the President under the Indian Constitution do not extend to making amendments to the Constitution, leave aside his executive powers.
At this juncture, replacement of the phrase Constituent Assembly under Article 370 (3) with Legislative Assembly deserves a special mention. Considering that the addition of Article 367 (4) as done by the order is constitutionally impermissible, Article 370 seems to have obtained permanence. The Supreme Court, in State Bank of India v Santosh Gupta has unambiguously ruled that Article 370 ceases to have operation if and only if the Constituent Assembly of the State of J&K recommends so.
Critics may choose to discard its permanence by arguing that the role of the Constituent Assembly of the State of J&K had ceased to exist with its dissolution, but Sampat Prakash v. State of J&K outrightly rejects this contention. In Sampat Prakash, the Court had emphasized that the Constituent Assembly of the State of J&K in fact desired that Article 370 shall continue to operate with one modification that it had recommended.
Legal sophistry indulged in by the government is even more indefensible because in the entire process concurrence of nobody from the state of J&K was involved
One might be tempted to be misguided by the marginal note to Article 370 which reads it as a “temporary provision”. What has to be understood is that the usage of the term temporary does not connote the temporariness of the special status conferred upon the state, but rather the arrangements between the Union of India and the State of J&K.
Some historical context holds relevance here. The actual arrangement of the two entities was to be determined after the Constituent Assembly of J&K would have been formed. Thus, framers of the Indian Constitution contemplated a provision for the meanwhile and had left the final call of its continuance or abrogation with the Constituent Assembly of J&K.
This argument finds support in the observations of the Supreme Court in Prem Nath Kaul v State of J&K, and one can therefore establish that even though the marginal note to Article 370 purports it to be of a temporary nature, its permanence is a judicially admitted fact.
Morally, the legal sophistry indulged in by the government is even more indefensible because of the fact that in the entire process concurrence of nobody from the state of J&K was involved. Governor is an appointee of the Central government and hence cannot by any stretch of imagination be considered to represent the interests of the people of J&K.
It reminds one of the colonial days when the powers that be used to rule through their representatives, not considering the inhabitants of the land where they were ruling worth any consultation. The constitution, prepared through a democratic exercise, has been used in a democratic country to trump democracy itself.
What is worse is that the whole exercise was carried out by creating an atmosphere of terror, suspending civil liberties and stifling people's voices, bringing back the cruel memories of colonial rule. Brute force, on ground and in Parliament, has been used to thrust the Presidential order and Bill for Reorganisation of the State upon the people of J&K. It remains to be seen whether people will accept it without offering any resistance.
While the political narrative that surrounds this order comprises mostly hysteria that we seek not to indulge into, it is no exaggeration to state that there are plentiful legal hurdles that it needs to sustain through. The ball is likely to enter the judicial court soon and lot rests on the Indian Judiciary to clung onto the spirit of Constitutionalism or adore the order despite its barbarism.
---
*Contact: p18anuj@iima.ac.in, ashaashram@yahoo.com

Comments

TRENDING

Buddhist shrines were 'massively destroyed' by Brahmanical rulers: Historian DN Jha

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

Gyanvapi case: Use of 'illegal' lawfare to keep the communal pot simmering

By Venkatesh Narayanan, Bobby Ramakant, Manoj Sarang* With a steady drumbeat of bad news for the lives of ordinary citizens --  inflation at a multi-year high , rupee at an all-time low , negative job creation and when all forward indicators as seen by industry leaders point to recessionary clouds on the horizon , what’s a serially-incompetent government to do?  Dust out their time-tested-citizen-distraction playbook. The Gyanvapi-Masjid case is all of this -- as a weapon of mass distraction. This zeitgeist of our times is best captured by a recent opinion piece : "The idea is to keep the pot on a perpetual boil, simmering at the top, whirling feverishly beneath. A restless society forever living precariously on the precipice arouses distrst, uneasiness, fear and discomfort, That is a toxic panoply for manufacturing rage, which can then be effortlessly mobilized at short notice. BJP is creating an eco-system of real-time instant delivery of hate-mongers. That is how we are sudde

Examples of support to Hindu temples, scriptures, saints by 'Muslim' rulers galore

Siya Ram coin issued by Akbar By Bharat Dogra* At a time when the country as well as the world are passing through very difficult times leading to more urgent need for strengthening national unity for meeting several big challenges ahead, unfortunately disputes relating to religious places have been allowed to raise their ugly head once again. It is well-realized by now by many people that it is not historical facts but narrow considerations of political gain and spreading of fanatic ideas of intolerance which are behind such mischief, but due to the increasing threat of mob violence and patronage available at higher levels to groups spreading intolerance many people are reluctant to openly and fearlessly express their views. Hence there is urgent need for broad-based peace committees with wider social support to spread the message of communal harmony and to appeal against the dangers of spreading false messages regarding places of worship which can ultimate

Targeting mosques, churches: 'Roadmap' for 2025, RSS' centenary year?

416 years old Our Lady of Health Church, Sancoale, Goa  By Fr Cedric Prakash SJ*  Fascists use manipulative strategies aimed at whipping up sympathy and support from the majority community, to which they normally ‘belong’. They do so in a variety of insidious and subtle ways. In the past few months, they have gone overboard in their efforts to denigrate and demonize minorities in India, particularly Muslims and Christians. They have spewed hate and divisiveness through their venomous speeches; incited people to violence and have effectively used officialdom to further their vested interests. The results are there for all to see: greater polarisation of the majority community in a country which prided itself for its pluralism and diversity. Their meticulously planned agenda is in order to gain absolute power of the country in the 2024 national elections. More so it is also a roadmap towards 2025 when the Rashtriya Swayamsevak Sangh (RSS) will complete one hundred years of its existence.

Upholding labour rights, Nehruvian scientific temper, Rajni Patel opposed Emergency

By Harsh Thakor*  Rajni Patel, who died 40 years ago, whatever his flaws, had one great quality: his human touch to offer selfless service and ability to galvanise or influence human beings from all walks of life. Few people would ever go out of the way to help someone or serve as selflessly without aim of personal gain. Rajni championed Nehruvian secular ideas and scientific temper. As a master in public relations he revealed utmost humility. As a barrister, he never appeared against the trade unions or workers. A Fabien Socialist he opposed liberal capitalism and radical socialism. Unlike most lawyers, he did not succumb to the lure of amassing wealth. Rajni was born in Sirsa, in Gujarat, on the very day Gandhi set foot on Indian soil, on 9th January, 1915. He gained his baptism through one of Gandhi's speeches calling for the boycott of foreign goods, which was the virtual turning point of his life. Rajni toed Gandhi to organise boycott of foreign goods. Rajni was able to cros

Whither climate goal? Increasing reliance on coal 'likely to worsen' India's power crisis

By Shankar Sharma*  Recent news articles, How to shock-proof India’s power sector and Power minister points finger at states for worsening electricity crisis , have highlighted a few current problems for the ongoing power sector issues as in April 2022. However, there is a lot more to it than a few temporary solutions as indicated in the articles. It should also be emphasised that it is techno-economically impossible to completely shock-proof a highly complex and geographically wide-spread vast power network, such as the one in India, which is only getting more and more complex with the passage of each year due to some irrational policies/ practices in the sector. A business-as-usual (BAU) scenario, wherein more and more of conventional technology power plants, including coal power plants, will be added in the near future, will also necessitate the increased complexity in the integrated national grid, and as a result the instances of power shortage/ disruptions can only escalate for

This varsity succumbed to extra-academic mobocracy, 'ignored' Hindutva archives

By Shamsul Islam* Open letter to Sharda University vice-chancellor Sub: Discarding a Question on Linkages of Hindutva with Nazism/Fascism is blatant Academic Dishonesty! Dear Professor Sibaram Khara Saheb, Namaskaar! According to your esteemed University’s portal: “The name of University, 'Sharda' is synonymous to 'Goddess of knowledge and learning-Saraswati'. She is identified with 'veena', an Indian musical instrument and the ‘lotus’, where she resides. The lotus in our logo symbolizes the seat of learning that the University is created for.  "Variety of colours signify the variety of disciplines the university offers and the overlap between petals creating new colours demonstrate the ethos of collaboration between students and teachers of different programme, nationality, creed and colour working towards creating new knowledge…the University's cherished mission to provide education beyond boundaries and to facilitate the students and faculty to achie

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

A former Modi ally, Prashant Kishor wanted to enter Congress 'on contract, as trader'

By Anand Sahay*  The Congress Party and the election campaigns specialist Prashant Kishor, whose company has done strategic communications for a host of political parties across ideology, should both count themselves lucky that they could not reach an agreement for Kishor to join the party. News reports suggest that the Congress rejected Kishor’s terms. This is not wholly unexpected. People join a party because they are attracted to it, and wish to serve it in any capacity that the party may see fit. But that isn’t Kishor at all. He gave the impression of entering into a contract, as a trader might. If news reports are to be believed, he sought freedom to report directly to party chief Sonia Gandhi, and sought untrammeled control over party communications. When such ideas did not find favour, the consultant withdrew. It is clear he has no particular love for the Congress, and its ideas, ideology and politics. In contrast, look at the key personae in G-23. They

A Marxian trend that queries undemocratic customs and traditions of capitalism

By Bhabani Shankar Nayak*  A very well-meaning comrade called me a pluriversal Marxist with a wild smile full of English irony, while chairing my book release function in the Marx Memorial Library, London. I dedicate this piece to her… There is no other philosopher who is more abused and misunderstood like Marx. There is no other philosophy like Marxism which is more demonised on a regular basis. The mindless vilification campaign against Marx and Marxism continues without any form of reason. The propaganda and portrayal of Marxism as a devilish doctrine signify its importance as a philosophy of human emancipation from the very forces who demonise it. Marxism is a philosophy of praxis which helps us to understand the centrality of creative power of labour in producing socially meaningful value. It helps us to analyse the laws governing production, distribution, consumption, exchange, market, profit, pricing and private property in the development of class-based society. As a humanist p