The decision to abrogate Article 370 was taken amid high tension, lockdown, rumour-mongering and the echo of jackboots in Jammu and Kashmir
The process of abrogation of Article 370 has been as controversial as the provisions of the Article itself. In its bid to reshape the political landscape of Jammu and Kashmir, the Modi Government, buoyed by the massive mandate it received to return to the seat of power for a second term, scrapped the special status granted to the volatile state by the Constitution of India.
As is the case with most decisions taken in a democracy, unsavoury or otherwise, in a matter of minutes a political slugfest ensued, following the announcement. While some, mostly those occupying the Treasury benches in the House, saw it as a “glorious day” for India, others called it a “dark day” for parliamentary democracy.
Nonetheless, the decision to abrogate Article 370 was taken amidst high tension, lockdown, rumour mongering and the echo of jackboots in J&K. The Centre restricted public movement by imposing Section 144 of CrPC and several important political leaders of the state were detained and put under house arrest. The Amarnath Yatra was suspended early, tourists were asked to leave and all forms of communication channels were paralysed, isolating the state from the rest of the country, ironically, all in the name of promoting better integration.
Article 370, which granted special status to J&K and Article 35A that empowered the state legislature to define the “permanent residents” of J&K and their special rights and privileges, has long been under the shadow of controversy. It has been a contested constitutional question whether the provisions of Article 370 were that of a temporary nature and was the Parliament ever empowered to abrogate it.
If we revisit history, it becomes evident from clause 7 of the Instrument of Accession signed by Maharaja Hari Singh that the state could not be compelled to accept any future Constitution of India. Furthermore, J&K was well within its rights to draft its own constitution and to decide for itself what additional powers to extend to the Central Government. Article 370 was designed to protect these special rights agreed upon under the Instrument of Accession.
Though Article 370 of the Constitution states that the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify, however, provisio to Article 370 clearly states that recommendation of the constituent Assembly of the state referred to in clause 2 of Article 370 shall be necessary before the President issues such a notification. But, since the J&K constituent Assembly later created the State’s constitution and dissolved itself without recommending the abrogation of Article 370, the Article was deemed to have become a permanent feature of the Indian Constitution.
The Supreme Court (SC) as well as High Courts of states on several occasions have specifically stated that Article 370 of the Constitution is not a temporary provision. In Kumari Vijayalakshmi Jha vs. Union of India (2017), the Delhi High Court rejected a petition claiming that Article 370 was temporary. In 2018, the SC stated that Article 370 is not a temporary provision. Similarly the apex court in SBI vs. Zaffar Ullah Nehru (2016) held that J&K has a special status and that Article 370 is not temporary.
On the other hand, Article 3 of the Indian Constitution empowers the Parliament to amend the Constitution by a simple majority to change or alter the boundaries of a state but only when the Bill concerning the same is first referred to the state Assembly concerned for its opinion. But, the decision to create two new Union Territories, J&K and Ladakh, was taken by Parliament without referring the same to J&K Assembly.
As the Assembly was dissolved by an order under Article 356, there was no constitutional body to make the recommendations either under Article 370 (3) or under Article 3.
In such a context, a shortcut was found in the provision of Article 356 (1) (b) that allowed the President to declare that the powers of the state legislature shall be exercisable by or under the authority of the President while President’s Rule was in operation in a state.
In the process, perhaps for the first time in the history of state reorganisation in India, a state was converted into two Union Territories, reversing the hitherto existing trend.
Needless to say that Indian federalism became the biggest casualty of our political leaders’ desire to create history in one stroke. With the Valley being under lockdown and an unprecedented number of boots on the ground to maintain peace, one is tempted to question the hurried need for abrogating Article 370 without taking the people and the political leaders of J&K into confidence. Can the Centre justify the manner in which all this was done? In law, especially in Constitutional law, procedure is as important as the outcome. It may be recalled that the 1971 election of Indira Gandhi was declared null and void by the Allahabad High Court on grounds of a procedural illegality.
More than the act itself, what is worrisome, is the manner in which it has been dealt with and the subsequent lockdown of the Valley that put curbs on the liberty of citizens of the state.
Such a sensitive matter certainly needed political maturity on the part of the powers that be, who, would have done well to focus on confidence building measure, by way of discussion with key stakeholders.
Unfortunately, neither was the spirit of a deliberative democracy respected, nor was any consensus building attempt made in the frenzied hurry to abrogate Article 370.
The whole episode, therefore, not only undermined the very spirit of democratic functioning but also demonstrated the centralising tendency compromising the framework of asymmetrical federalism that the Constitution of India envisaged.
When the democratic State starts behaving and functioning like a majoritarian and authoritarian one, not only does the constitutional promise get shattered, the future prospects of unity and integrity look bleak.
This, therefore, should be a moment of introspection and not that of celebration. Looking at the lockdown in the Valley and the virtual imprisonment of its people in blatant disregard of their rights in the name of greater integration and the so-called development of the region, one is prompted to ask whether India has pushed Kashmir to the point of no return.
The answer is probably blowing in the wind in the bleeding Valley.
Unfortunately, we have no access to read the writing on the wall of the Valley, with the region being virtually cut off from the rest of the country and both the free movement of the fact finding teams to the state and reporting from the Valley being restricted to a great extent.
However, one can safely assume that in yet another bid to write history in one stroke, the country is going to learn the historic lesson that the project of national integration promoting greater unity and integrity calls for moving beyond the desire of over-centralisation and the idea of forced integration by focussing more on sharing of political power and simultaneously pursuing policies of greater accommodation.
(Pankaj Sarma is an Assistant Professor of political science at Kirori Mal College, University of Delhi, and Popimoni Sharma is a former Guest Lecturer of GB Law College, Guwahati)
Writer: Pankaj Sharma Popimoni Sharma
Courtesy: The Pioneer