There could not have been any substitute to the consent of the Legislative Assembly of Jammu & Kashmir where the applicability of Article 370 was concerned, says advocate Nishchaya NIGAM, Delhi High Court
The Union Territory of Jammu and Kashmir has been a top news trend with the sudden revocation of Article 370. Numerous petitions have been filed before the Supreme Court criticising the development so much that Ranjan Gogoi, the present Chief Justice of India, hinted he would visit the Valley to assess merits himself. In such times of political turbulence, creating waves in the geo-political, regional and territorial dynamics of the UT, almost every strata of the society had an opinion about it. For many it was another trending topic to create memes while for some it was a matter of nationalism and courage. In this whole exercise of decoding Article 370, many chose to be lawyers, by taking both sides of the equation. I will try to be rational.
When the rulers of the princely states were asked to accede to any one of the two dominions — India or Pakistan — by signing the Instrument of Accession, nobody could have imagined a third option to the situation, i.e. conducting a plebiscite to determine which way they would go. Before continuing further, a quick digression towards Alighieri Dante, the renowned Italian poet, shall be helpful in setting the correct backdrop. In his famous work, The Divine Comedy, Dante described a close reflection of hell with his famous design — a funnel-shaped structure with layers depicting stages of hell. In describing so, Dante quoted, “The darkest places in hell are reserved for those who maintain their neutrality in the times of moral crisis.” The fate of Jammu and Kashmir, a place attributed to be heaven on earth, was sealed when Maharaja Hari Singh maintained a state of neutrality on the Instrument of Accession in 1947. In what could be tagged as the perfect political oxymoron, the situation before Maharaja Hari Singh was nothing close to what other rulers had faced. Since Pakistan was a Muslim country, Maharaja Hari Singh, being a Hindu ruler, feared for his life there. On the other hand, India, although a country with no official religion, chose to adopt a democratic form of governance where political rulers would be elected by direct voting. Hence Maharaja Hari Singh feared being thrown out of power since Jammu & Kashmir was a Muslim-dominated state. Being stuck in a “cliff and fire” situation, the Maharaja prioritised self-interest over and above public interest, creating a political earthquake of statelessness and an abyss for generations to suffer.
On plain reading, the Constitution of Jammu & Kashmir had focussed how the last man to provide a representation for state of Jammu and Kashmir in times of failure of the Constitutional machinery would be the Governor, duly aided by the Cabinet Ministers of the Legislative Assembly of the State. In situations of President’s rule, the “theory of Deeming Fiction” would come into play, allowing the Parliament to discharge the functions of the State Assembly of Jammu and Kashmir. However, on arriving at this stage, a mischief was played which made way for the Government of India to unilaterally outlaw the Constitutional Sovereignty of the State of Jammu and Kashmir. It cannot be the case that the anticipation of framers never reached this possibility of mischievous unilateral shift in power towards the Union of India.
To end the confusion, at the time of introducing Article 370 and framing the Constitution of Jammu & Kashmir, framers assumed a bona fide from both the parties to the dispute, leaving scope for only one possible solution, i.e. the temporary status of Article 370 shall be revoked only after being approved by the Government of Jammu & Kashmir, represented through its Constituent Assembly. However, in October 2015, the High Court of Jammu and Kashmir ruled that Article 370 cannot be “abrogated, repealed or even amended.” It explained that the clause (3) of the Article conferred power to the State’s Constituent Assembly to recommend to the President on the matter of the repeal of the Article. Since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, Article 370 has taken on the features of a “permanent provision” despite being titled a temporary provision in the Constitution.
On April 3, 2018, the Supreme Court of India gave a similar opinion declaring that Article 370 had acquired a permanent status. It stated that since the State Constituent Assembly had ceased to exist, the President of India would not be able to fulfill the mandatory provisions required for its abrogation. Subsequently, via the presidential order 2019, proviso to clause (3) of article 370 of the Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” was replaced with “Legislative Assembly of the State”, thus allowing fresh power to the elected legislature of the state to give assent to the Governor, for “abrogating, repealing and amending” the effectiveness of Article 370.
In the case of Mohd Maqbool Damnoo vs State of Jammu and Kashmir [(1972) 1 SCC 536] the petitioner challenged the constitutionality of interpreting and replacing the Sadar-i-Riyasat with the Governor of the state. The Supreme Court of India held that the “Governor is the successor to the Sadar-e-Riyasat and is able to give the State Government’s concurrence to any amendments under Article 370.” With removal of the last firewall, no special status condition was left to be entertained, allowing the President of India to be in unilateral control of the territory. Unfortunately, this breach of mutual bona fide has opened fresh gateway to entertain the “theory of Deeming Fiction”, thus resulting in a one-sided decision-making authority.
The present government has made way for future government and leaders to entertain possibilities and outcomes which may not be desired by the people of India. It further creates a situation where, by arm-twisting the sensitive states, one can ensure monopoly. With past instances of unfair practices by political parties and coalitions at the Centre, examples being the misuse of Article 356 (State Emergency) and Governor’s role in forming State Governments, this too, runs antithetical to democracy.
Article 92 of the Constitution of Jammu & Kashmir and Article 370 of the Constitution of India clearly show the legislative intent of the framers that the last word on sovereignty of Jammu &Kashmir vests with its people i.e. the Legislative Assembly of Jammu and Kashmir. In the light of recent developments, it would be criminal to ignore the difference in the words “under Article 370” and “on Article 370.” While in the former case, the President can pursue unilateral decisions under Article 370, the latter does not allow the President, acting in the shoes of Sadar-e-Riyasat of the State, to iron out the very legality of Article 370. This would completely frustrate the pious agreement of sovereignty noted in the Instrument of Accession dated October 26, 1947. Clause 7 of this Instrument of Accession, signed by Maharaja Hari Singh, declares that the State could not be compelled to accept any future Constitution of India, i.e. neither India nor the State of Jammu and Kashmir can unilaterally amend or abrogate Article 370, except in accordance with the terms of the Article 370, complying all the provisions contained in it.
Art370(3): Notwithstanding anything in the foregoing provisions of this article, 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.
Provided that the recommendation of the Legislative Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
Such bullish approach to single handedly crushing the immunity provision of the state’s sovereignty is a clever solution bypassing the prescribed solution. In my opinion, there could not have been any substitute to the consent of the Legislative Assembly of Jammu & Kashmir, in the case where the applicability of the Article 370 of the Constitution of India was concerned. Such manufactured acceptance by the Parliament, followed by the resolution passed by the President, issued under Article 370(3) rendering all clauses of Article 370 inoperative does not reflect the will of the people of Jammu & Kashmir.
