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

Impact of state repression? Kashmir's 65% people prefer independence: Cambridge study

By Rajiv Shah 
Even as the Government of India’s controversial move to abrogate Article 370 of the Constitution and bifurcate Jammu and Kashmir (J&K) into two union territories is not only refusing to down die but has acquired international dimensions, a recent study, published by the Cambridge University Press, has claimed “pro-independence attitudes” among that 65% of Kashmiris, warning, this sentiment worsens when the state machinery resorts “repressive violence”.

Dholera 'inundated': Gujarat govt tries selling low lying area as top smart city site

Counterview Desk
Even as the Dholera Special Investment Region Regional Development Authority (DSIRDA) of the Gujarat government was busy organising a junket for Gujarat-based journalists for the area sought to be sold as an ideal special investment region (SIR) for industrialists, well-known farmers' activist Sagar Rabari has wondered why no investor has so far agreed to put in money in an area situated in Ahmedabad district along the Gulf of Khambhat.

Congress' anti-democratic laws led to Modi govt's 'Constitutional' changes: Scholars

Counterview Desk
A large number of academics* said to be belonging to several Indian and international institutions, even as taking strong exception to the Narendra Modi government's alleged move to amend the Constitution through "illegitimate" means, have taken strong exception to their colleagues in academia who we have become "all too accustomed to adopting a calculated silence in the face of such indignities."

Hindus to be 'sent' to Kashmir? Despite Israeli settlements, peace eludes the region

By Anand K Sahay*
Curfew, news and communications blackout, transportation shut-down... News reports from Kashmir are worrying. So are the views relayed through the media, especially television. Old-fashioned repression seems to be consorting comfortably with expressions of concern “for our Kashmiri brethren”. We are looking at Orwell’s 1984 in the making.

Kashmir normal? Schoolboys, teenagers being arbitrarily picked up, detained: Report

Counterview Desk
A four-person team, consisting of Jean Drèze, well-known development economist; Kavita Krishnan, who is with the Communist Party of India (Marxist-Leninist); Maimoona Mollah of the All India Democratic Women's Association (AIDWA); and Vimal Bhai of the National Alliance of People's Movements (NAPM), back from a five-day fact-finding mission (August 9-13) from Kashmir, has said that people they spoke to “expressed their pain, anger, and sense of betrayal against the Government of India.”
In a report, “Kashmir Caged”, released along with a short eight-minute film, they said, the abrogation of Articles 370 and 35A, dissolution of the state of Jammu and Kashmir (J&K), and bifurcating it into two Union Territories, is not being supported by anyone they met, except for BJP spokesperson on Kashmir affairs Ashwani Kumar Chrungoo, who claimed 46% vote share in J&K.
Excerpts from the report: When our flight landed, and the airlines staff announced that passeng…

Modi's Gujarati mind? Why govt move to 'sell-off' defence PSUs isn't in national interest

By Sandeep Pandey*
The Standing Committee on Defence, 2017-18, of the 16th Lok Sabha highlights the idea of Buy Indian-IDDM (Indigenously Designed Developed and Manufactured). The Committee expressed concern over the import content of equipments produced and developed by Defence Research and Development Organisation (DRDO), Ordnance Factories (OFs) and defence Public Sector Undertakings (PSUs) because of the dependence it creates for military hardware on foreign suppliers.

Central Gujarat effluent channel 'releasing' highly polluted industrial wastewater: PM told

Counterview Desk
Senior environmentalists of the Paryavaran Suraksha Samiti (PSS), Vadodara, Rohit Prajapati and Krishnakant, in an open letter to the Prime Minister, the Gujarat chief minister, the Gujarat chief secretary, and senior Government of India and Gujarat government officials dealing with environment, pollution and climate change have said that the authorities’ response their pleas to take action against the leakages and flow of polluted wastewater from the effluent channels of Central Gujarat industrial areas has met with complete inertia.

Can't go to court with RTI information, rule Ahmedabad authorities: Kankaria accident

By Pankti Jog*
In a shocking reply to an application filed by me, the Ahmedabad Municipal Corporation (AMC) authorities have said that the information provided under the Right to Information (RT) Act should be used in court or in a judicial process. The Act is known to be a major tool that enables citizens to seek certified copies of documents, records from any public authority of state and Central government within 30 days, as per provisions of the Act.

Quit India Movement 'betrayal' and dubious role of Hindu Mahasabha, RSS leaders

By Shamsul Islam*
After the recent guillotine of Article 370, Hindutva ideologue Ram Madhav, while celebrating the occasion stated that it was honouring of the sacrifices of Dr Shyam Prasad Mukherjee and thousands others who laid down their lives for its removal. It is to be noted that Dr Mukherjee was a cadre of RSS and was groomed into a Hindutva leader by another Hindutva icon, VD Savarkar.

Strategy for united struggle against Hindutva 'fascism': Ideological silence is 'no option'

By Dr Bhabani Shankar Nayak*
Electoral alliance and opportunism of national and regional political parties, neoliberal economic marginalisation and soft secular Hindutva line pandering to Hindu majoritarianism laid the foundation of Hindutva fascism in post-colonial India.