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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.
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*Contact: p18anuj@iima.ac.in, ashaashram@yahoo.com

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