Judicial Opinion on the Abrogation of Article 370

The history of the accession of Jammu and Kashmir into the union of India was unique due to its demographics and geographic presence. Jammu and Kashmir’s accession was in lieu of the defence of the state from the Pakistani tribal invasion. Hari Singh, the monarch of the state, signed the J&K Instrument of Accession of 1947 with special provisions and Article 370 was incorporated into the constitution of India based on the agreement. The article provided exclusive property rights and restricted application of the Indian constitution in Jammu and Kashmir. Eventually, J&K was recognized as an integral part of India and constant wars ensued between India and Pakistan. But the Kashmiri independence movement forced the mass exodus of Hindu Pandits from Kashmir valley due to targeted murders committed by the J&K Liberation front in the late 1980s, which forced the Indian people to change stance and support the revocation of 370 to allow for better interaction between communities and help alleviate anti-Indian sentiment. It was only then; the BJP government reiterated the necessity to revoke Art. 370 as to resonate to the international community that Kashmir will remain an integral part of India and as means of providing justice to the minorities of the state. The revocation was declared on the 5th of August and the state is witnessing high military presence with ex chief ministers being detained and raising possible violations of fundamental rights throughout the state.

The process in the abrogation of Article 370 began with the passing of the Constitution Order, 2019 C.O 272, wherein the reference to the government of Jammu and Kashmir was to be considered as references to the Governor which provided powers to the governor intending to help circumvent the requirement of ‘concurrence’ with the state government for amending Art.370. The President drew powers from Art. 370(1)(d) to modify Art. 367 for its applicability in the state. Moreover, the added fourth clause to Art.367, stated the expression ‘Constituent Assembly’ be read as ‘Legislative Assembly of the state’. This was in accordance with 370(3) of the constitution that provided the president with the right to abrogate this article on the recommendation of the ‘Constituent Assembly of Jammu and Kashmir.'
The next day, the President passed 2019 C.O 273 and revoked Article 370 as acting upon the recommendation of the state assembly and the parliament demoted the state into two union territories (Ladakh (non-autonomous) and Kashmir Valley (autonomous)). There has been equal rejoice and anger by different parties in regard to this decision by the government. Further reasons being the plausible human rights violations in Kashmir Valley to prevent any misinformation and high raking cross-firing with Pakistan and other separatist outfits. Many legal scholars have raised different legal faultlines regarding the scrapping of 370 and this essay to such extent will evaluate possible constitutional reasons the court might use in deciding if the abrogation is ultra vires or not.

The specification of the ‘constituent assembly’ in Art.370 was based on the powers to draft a new constitution for Jammu and Kashmir in 1951 and its dissolution was a legal hurdle in achieving the abrogation through existing provisions. While deciding on the validation of the constituent assembly, the court in Santhosh Gupta case held that, though Art. 370 was intended to be a temporary provision it had attained permanency due to the dissolution of the ‘constituent assembly’, as it was the only lawful authority to decide on the abrogation of Art.370. The Constitutional order that created the amendment to Art.367 equated the constituent assembly to be read as the legislative assembly of Jammu and Kashmir. The presidential order derived its powers from Art. 370(1) to add specifications to 367 pertaining to Jammu and Kashmir. 
Though the intent of the order was the circumvent the hurdle, the basis of the constitutional amendment progressed through Art. 370(1) was ultra vires as 370(1) does not provide the president any powers to amend the Indian constitution. But, the five-judge bench in Puranlal Lakhanpal v. President of India held that the president has the power to modify the constitution when making it applicable to Jammu and Kashmir through an order passed ‘on the recommendation’ of the state government as in Art. 370(3). The court also held that the term ‘modification’ must be given the widest effect and the president be allowed to modify such laws for better applicability. The precedent set here highlights the powers of the president to apply any specification he deems right but only with the concurrence of the state government, raising the second contention of lacking government concurrence to the extent of concurrence provided by the Governor.

Article 367(4)(c) states that the references to the state can also be considered as references to the governor acting on the council of the ministers. The concurrence necessitated by an elected government of the state was to be provided for amendments necessitated under 370(1)(d). The contention arises wherein, the state legislature was dissolved in November 2018 and put under “President’s rule”, being governed by centrally appointed state governor. The lack of an elected government meant the non-availability of the council of ministers advising the governor to suggest to the president any particular amendment. The court in Maqbool Damnoo case allowed for the insertion of Article 367(4) through the 1965 presidential order which allowed for the references to the Sadar-i-Riyasat to be read as references to the ‘Governor’ and held that this was not a back-door amendment to article 370 and that it was within the framework of the constitution. The court in the Santhosh Gupta case had further opined that ‘the parliamentary legislation in regard to the union/concurrent list would not need the concurrence of the State Government before it can apply to the State of Jammu & Kashmir under Art.370’. But the Governor has not acted on the advice of the council of ministers in deciding the abrogation. 

The courts have long opined in favour of non-interference into the validation of passing constitutional orders in regard to the state. The courts might thus also allow for the providence of governor’s reference as article 163 provides for discretionary powers to the governor to decide on matters without the advice of the council of ministers and equate his consent as that provided by the government.

            Article 1 of the Indian constitution provides for India to be a union of states and Article 3 also provides for creation of states and union territories but does not provide for the demotion of a state to a union territory. The state after the revocation of 370 has been degraded into two union territories, removing all political autonomy and stripping the privileges of being a state, questioning Indian federalism. The Supreme court in the Kesavananda Bharti case held federalism as a component of the basic structure of the Indian constitution, meaning it cannot altered by any authority. The closest precedent to the Kashmir statehood issue was Delhi. Delhi had an elected legislature from 1952 and was stripped statehood to be made into a union territory in 1956 on the recommendations of the Sitaramayya Committee. Later Delhi was made into the National Capital Region with certain powers provisioned with the centre for better governance. The reason cited for the demotion of Kashmir into a union territory was for the disturbing circumstances existing in the state and violent boundary issues. There has been no set precedent in Indian history wherein a full-fledged state was converted into a union territory raising various legal questions.

            Prominent state leaders including the Abdullahs and the Muftis have been held in detention since the announcement. The valley has been in complete lockdown and is facing a communication blackout for over a month now. The political crisis in the state is preventing the proper providence of healthcare and other basic necessities for the populace. The UN has mentioned its grave concern over violations of Kashmir and over the inaction by India. The European Union members have also called for sanctions for Human rights violations in the state. The court have been reeling with criticism for inaction against the suspension of civil rights in the state. The court will be forced to act and provide reasonable protection to the detained leader prevent any furthering of the violations. 

            In understanding the issues, the Supreme Court is most likely to allow for and uphold the abrogation of Article 370, as the scrapping has been done through conscious legal interpretation of the statutes. The court is also likely to stick with the non-interference approach in regard to the passing of presidential orders and is prominently to allow for the concurrence provided by the Governor as provided by the state. It might stall the degrading of the state into a union territory as it goes against the principles of federalism, but might still allow for the creation of the Ladakh union territory citing consensus amongst the locals without altering the federal structure. Also, the court is expected to act against the human rights violations in the state, prevent excessive military control and ask for immediate restitution of democratic functioning in the region.

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