8 months on, J&K still under clampdown – not to be forgotten.
“…if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion …”
The first half of this promise by Nehru symbolises the vision he had for Jammu and Kashmir (J&K). The second proves to be a forecast of sorts, of the State as it stands today. The ones advocating for the move, herald the abrogation as a clarion call for change, enlisting the numerous opportunities that it opens for the nation’s future. This article agrees with the abrogation, in substance alone. The legality of the procedure of abrogation, however, should not be disregarded in deciding whether the Centre was indeed benevolent in deciding to revoke the special status.
The abrogation was done with the purpose of extending the scope of many progressive and egalitarian laws to the State of Jammu and Kashmir, who erstwhile enjoyed a separate Legislature. While the intention to remove the special status was a wish for national integration, it would be naive and fanatic to ignore the impact of the decision on the people of the valley. Their homeland had undergone massive demographic changes, the Constitutional autonomy granted to them was snatched, and, above all, any potential dissent was muffled by prohibiting communication.
Genesis to Abrogation – The long-winding story of 370
As a condition for India’s accession of Jammu and Kashmir, Article 370 prescribed the extent of autonomy guaranteed to it. The State was granted, amongst other allowances, a special status, by way of which it could take administrative decisions by itself. This allowance could be modified or revoked by the President, by way of Article 370(3). However, to secure the State’s autonomy, such Presidential action required accordance with the Constituent Assembly of the State.
This Constituent Assembly was dissolved in 1957, after the drafting of the State’s Constitution. After the dissolution, the continuance of the special status accorded to Kashmir was questioned. In April 2017, Kumari Vijayalakshmi Jha petitioned before the Delhi High Court, contending that Article 370 was a temporary provision which automatically lapsed with the dissolution of the Assembly. The court dismissed the petition, holding that the Article will remain permanent. It was found that the Constituent Assembly had recommended that Article 370 will be applicable with the modification that the President should be advised by the Sadr-I-Riyasat of Jammu and Kashmir before making Constitutional amendments applicable to the State. The Supreme Court, on appeal, held the same position, stating that after the dissolution of the Assembly, the President could not get the assent required for abrogating Article 370.
Subverting the above decisions, Article 367(2), was amended to read “Legislative Assembly” into the expression “Constituent Assembly” as mentioned in Article 370(3). Jammu & Kashmir, a state which did not have its government in office was vicariously controlled by the central government vis-a-vis the Governor. The phrase – “with concurrence of the government of State of J&K” was disregarded when the government opted to consult the Governor, in a rather underhand manner of consulting itself.
Tales of History Through the Prism of Article 370
The recent decision induces deja-vu, due to the uncanny resemblance that the abrogation of Article 370 bears to the passing of Illegal Immigrants (Termination by Tribunals) Bill, 1983. The Bill was initiated intending to provide protection to people caught in the anti-migrant agitation. However, it was passed without consulting the State’s citizens – the actual stakeholders – resulting in the disturbance of the intricate social fabric of the State. In the absence of their representative in the Lok Sabha and with no state assembly in force, the Parliament steam-rolled through with a large majority, against the wishes of the State’s populace. The similarity in the demolishing of Babri Masjid in 1992 and the abrogation of Article 370 in 2019 lies in the manner in which it was done – discreetly, under the guise of correcting a historical blunder. These events underscore one lesson – that democratic values must be upheld with healthy engagement initiated with the actual stakeholders of a Parliamentary move.
Route to Normalcy
It is evident why the abrogation of Article 370 is a cause of concern. The issues shown highlight the government’s insolence towards democracy and federalism, in eroding Jammu and Kashmir’s promised autonomy. At this stage, the abrogation should be divided into two aspects – substantial and procedural. The substantive revocation of Article 370 brings positive prospects.
On October 24th, 2019, two Kashmiri Pandits and the All India Kashmiri Samaj filed a petition to the Supreme Court, in support of the Centre’s decision to revoke Article 370. The petition argued that the Treaty of Accession of Jammu and Kashmir to the Republic of India was unconditional, and the State was always intended to be integrated into the Union of India. It also stated that the valley frequently faced threats of infiltration and terrorism from the neighbouring countries of China and Pakistan. Since the erstwhile State government was unequipped to resolve such matters, merging the territory with the Republic of India would ensure better security. Lastly, the petitioners contend that the President generally performs legislative functions of the State Assembly when the State is placed under Presidential Rule, as was the State of Jammu and Kashmir. Therefore, the decision of the President exercising his power in this regard cannot be implied as unconstitutional.
As is evident from the petition, the substantial aspect of jettisoning Article 370 has proved beneficial to the citizens of J&K. However, the illegality of its procedure eclipses these positives. Democratic and federal Governments should be discouraged from acting in such an authoritarian manner in bringing political reforms for a State. Article 370(3) had prescribed a federalist procedure for revocation, which was upheld by the Delhi High Court and the apex court in 2017. Allowing the petition, overlooking the paternalistic procedure of the abrogation, will only continue the theme of State decisions being taken Centrally, without consultation. In judicially reviewing the abrogation, the Supreme Court must not discount these procedural violations. It should appreciate the merits of the revocation of Article 370, but direct the Centre to obtain assent from the people of Kashmir, as prescribed by Article 370. Further, the amendment made to Article 367 by the Centre should be deleted, in the interest of federalism. Such directions will ensure that the Centre takes due precaution in future before acting parallelly to the State’s concerns, instead of concurrently.
ABOUT THE AUTHOR
Anna Jose Kallivayalil
Anna Jose Kallivayalil is a second-year law undergraduate at the National Law University, Delhi. She takes an avid interest in constitutional law and criminal law. She has also been invited to present a paper on the “Increased use of Artificial Intelligence in Criminal Investigation” at the International Conference on Criminal Justice Administration (NUJS Kolkata).
Philip Ashok Alex
Philip Ashok Alex is a second-year student at the National Law University Delhi. He takes a keen interest in constitutional law, criminal law and in the intricacies of the country’s judicial machinery. He is passionate about Public International Law and has participated in the 21st D.M. Harish International Moot Court Competition hosted by the Government Law College, Mumbai.
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