Yogesh Pratap Singh
Associate Professor, National Law University, Cuttack
The Modi government, in a strategic move, issued a presidential notification to scrap the application of the Jammu and Kashmir Order, 1954. It has been replaced with The Constitution (Application to Jammu and Kashmir) Order, 2019 which derives its legality and authority from Article 370 (3). Now, all provisions of the Constitution of India, as amended from time to time, shall apply in relation to the state of Jammu and Kashmir. The government also tabled the Jammu and Kashmir (Reorganisation) Bill, 2019 which splits the state of J&K into two union territories.
Even as the political tug-of-war on the issue will continue for some time, the government’s move has already been challenged in the Supreme Court. Let us interrogate some legal and constitutional misconceptions contiguous to this controversy.
After the dissolution of the Constituent Assembly in 1956, did the power to abrogate Article 370 vanish? Article 370 mandates accord of Constituent Assembly of J&K, which has been dissolved, and nowhere is it provided how to recall a dissolved Constituent Assembly? The intention of the drafters, perhaps, was to provide the state of J&K a special status till the Constituent Assembly of J&K was in existence. The Instrument of Accession’s relevance was confined to joining the dominion that was going to take shape on January 26, 1950. But, the continuation of this transitory provision, ie Article 370, even after the dissolution of the Constituent Assembly of J&K appeared to be a political and electoral device only. Hence, the argument that after the dissolution of the Constituent Assembly in 1956, the power of abrogation of Article 370 vanished is unjustifiable.
Can any provision of the Constitution be permanent, as it is claimed? A similar bizarre argument was advanced in the infamous IC Golaknath case (1967) where it was contented that fundamental rights are permanent in nature and cannot be abrogated by Parliament even in the exercise of its constituent power under Article 368. The only method to do so, if it is desired, is that the state must convoke another Constituent Assembly by exercising its residuary power under Article 248 read with Item 97 of the List 1 of Schedule 7, and then that the Assembly can abridge or take away the fundamental rights. Any other method must be regarded as revolutionary.
However, this view was discarded by a 13-judge Bench in Kesavananda Bharati case (1973) by saying that any part of the Constitution can be amended either by variation, addition or repeal, except the very essence of it, which was pigeon-holed as basic features of the Constitution.
The Constitution is an organic statute. It grows by its own inherent force and, therefore, constitutional provisions are couched in elastic terms. Any constitution, howsoever rigid it may be, has a provision for an amending power along with procedure so that it can, at any point of time, be amended by way of variation, addition or repeal, so long as no vacuum is left in the governance of the country.
Nehru had time and again emphasised that while the Constitution was meant to be as solid and as permanent a structure as it could be, nevertheless there was no permanence in the Constitution and there should be a certain flexibility; otherwise it would stop a nation's growth. A similar sentiment was expressed by Ambedkar while dealing with draft Article 25 corresponding to the present Article 32.
Therefore, when the most sacrosanct provisions of the Constitution can be changed, there cannot be any rationale for Article 370 to claim permanent immunity. It was crafted to deal with an extraordinary situation and with a marginal note that it is a transient provision. This should have been revoked once the extraordinary situation ceased to exist.
The Supreme Court Bench consisting of Justices Adarsh K Goel and RF Nariman had observed that Article 370 of the Constitution which provides a special status to the state of Jammu and Kashmir and limits the legislative powers of the Union Government vis-à-vis the state had acquired a permanent status through years of existence. Something which is permanent since inception and something which has acquired permanency over a period of time has a difference. The marginal note of Article 370 makes it clear that this was a temporary provision and it was only the lack of political willpower which allowed it to endure. Though a marginal note cannot affect the construction of the language used in the body of the article, but if the content is uncertain and ambiguous, as in the case of Article 370, the marginal note may be referred to. [Western India Theatres Ltd. v. Municipal Corporation Puna AIR 1959 SC 586].
Questions were also raised about the special status of J&K vis-à-vis the special status of other states. There are 10 more states which have been conferred special status under Articles 371, 371-A to 371-H, and 371-J of the Constitution. However, these states do not relish the same status as the state of J&K. The intention behind these provisions were to safeguard the interest and aspirations of certain backward regions or to protect and promote the cultural and economic interests of the tribal people or to deal with the disturbed law and order in some parts. But these states are an integral part of the constitutional framework, unlike the state of J&K.
The power of creating a state or a union territory has been vested in the Union Parliament (Article 3 of the Constitution), which extends to increasing or diminishing the area of any state and altering the boundaries or name of any state. However, two checks constrain Parliament’s power to enact legislation for the formation of new states. Firstly, a Bill calling for the formation of new states may be introduced in either House of Parliament only on the recommendation of the President. Secondly, such a Bill must be referred by the President to the state legislature concerned for expressing its views to Parliament if it contains provisions which affect the areas, boundaries or name of that state.
The Jammu and Kashmir (Reorganisation) Bill, 2019 which proposed to bifurcate the state into two union territories — Jammu and Kashmir with a legislature and Ladakh without one — which was passed by both Houses of Parliament required the consent of the government of the state but the state of Jammu and Kashmir is under Governor’s rule without any state Assembly. This may be a technical legal glitch when the matter is scrutinised by the Supreme Court. However, courts are also expected to and, indeed should, interpret, considering the expanding needs of society.
However, converting the state of J&K into a union territory is nothing but an act of political immorality. It will not only give the Central government more control over policymaking within Jammu and Kashmir, but also give it power to subvert the voice of the people of the state — at any point.