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

132 Gujarat citizens, including IIM-A faculty, others declare solidarity with Kashmiris

Counterview Desk
A week after it was floated, 132 activists, academics, students, artists and other concerned citizens of Gujarat, backed by 118 living in different parts of India and the world, have signed a "solidarity letter" supporting the people of Jammu and Kashmir (J&K), who, it claims, have been silenced and held captive in their own land. The signatories include faculty members and scholars of the prestigious Indian Institute of Management-Ahmedabad (IIM-A).

Amit Shah 'wrong': Lack of transparency characterized bank frauds, NPAs, jobs data

Counterview Desk
India's senior RTI activists Nikhil Dey, Anjali Bhardwaj, Venktesh Nayak, Rakesh Reddy Dubbudu, Dr. Shaikh Ghulam Rasool, Pankti Jog and Pradip Pradhan, who are attached with the National Campaign for Peoples' Right to Information (NCPRI), have said that Union home minister Amit Shah's claim that the Government of India is committed to transparency stands in sharp contrast to its actual actions.

Bharat Ratna nominee ‘joined hands’ with British masters to 'crush' Quit India

By Shamsul Islam*
The Quit India Movement (QIM), also known as ‘August Kranti' (August Revolution), was a nation-wide Civil Disobedience Movement for which a call was given on August 7, 1942 by the Bombay session of the All-India Congress Committee. It was to begin on August 9 as per Gandhi's call to 'Do or Die' in his Quit India speech delivered in Bombay at the Gowalia Tank Maidan on August 8. Since then August 9 is celebrated as August Kranti Divas.

Gujarat's incomplete canals: Narmada dam filled up, yet benefits 'won't reach' farmers

By Our Representative
Even as the Gujarat government is making all out efforts to fill up the Sardar Sarovar dam on Narmada river up to the full reservoir level (FRL), a senior farmer rights leader has said the huge reservoir, as of today, remains a “mirage for the farmers of Gujarat”.
In a statement, Sagar Rabari of the Khedut Ekta Manch (KEM), has said that though the dam’s reservoir is being filled up, the canal network remains complete. Quoting latest government figures, he says, meanwhile, the command area of the dam has been reduced from 18,45,000 hectares (ha) to 17,92,000 ha.
“According to the website of the Sardar Sarovar Narmada Nigam Ltd, which was last updated on Friday, while the main canal, of 458 km long, has been completed, 144 km of ranch canals out of the proposed length of 2731 km remain incomplete.
Then, as against the targeted 4,569 km distributaries, 4,347 km have been constructed, suggesting work for 222 km is still pending. And of the 15,670 km of minor canal…

Ceramic worker dies: 20,000 workers in Thangadh, Gujarat, 'risk' deadly silicosis

By Our Representative
Even as the country was busy preparing for the Janmashtami festival on Saturday, Hareshbhai, a 46-year-old ceramic worker from suffering from the fatal lung disease silicosis, passed away. He worked in a ceramic unit in Thangadh in Surendranagar district of Gujarat from 2000 to 2016.
Hareshbhai was diagnosed with the disease by the GCS Medical College, Naroda Road, Ahmedabad in 2014. He was found to be suffering from progressive massive fibrosis. He is left behind by his wife Rekha sister and two sons Deepak (18) and Umesh (12),
The death of Hareshbhai, says Jagdish Patel of the health rights group Peoples Training and Research Centre (PTRC), suggests that silicosis, an occupational disease, can be prevented but not cured, and the Factory Act has sufficient provisions to prevent this.
According to Patel, the pottery industry in the industrial town of Thangadh has evolved for a long time and locals as well as migrant workers are employed here. There are abou…