by Vijay Kumar
The abrogation of Article 370 of the Constitution and the promulgation of the Presidential Order dated August 5, 2019 superseding all previous Presidential Orders extending the provisions of the Constitution to Jammu and Kashmir under Article 370 (1) (d) from 1950 till date resulting in nullification of Article 35-A, which restricted the right to property to State subjects alone, followed by bifurcation of the State and converting the Valley and Jammu as Union Territory has subverted the spirit of federalism and have grave implications for constitutionalism and the very ‘idea of the India' embodied in the epithet ‘unity in diversity'. Before adverting to fateful implications, a brief reference to the historical circumstances resulting in incorporation of Article 370 of the Constitution would be in order.
The debate on Article 370 lasted for almost five months from May to October 1949 during which extensive deliberations and a series of meetings took place between Jawaharlal Nehru and his colleagues with Sheikh Abdullah, the then Prime Minister of J&K. After the enactment of the India Independence Act, 1947, the instrument of accession was signed between the then ruler of J&K and the Indian Government, clause 8 of which provided as under :
“Nothing in this Instrument effects the continuance of my sovereignty in and over this State, or save as provided by or under this Instrument, the exercise of any power, authority and right now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.”
The Government of India thereafter issued a White Paper on J&K in which it was recorded in clear and unmistakable language that “in accepting the accession, the Government of India made it clear that they would regard it as purely provisional until such time as the Will of the people of the State could be ascertained”.
The pointsman appointed by the Government of India was Shri N. Gopalaswami Ayyangar for negotiating the terms and conditions for incorporation of J&K in India. He made a statement on the floor of the Constituent Assembly on October 17, 1949 that “the Will of the people of J&K through the Instrument of Constituent Assembly will determine the constitution of the State as well as the sphere of Union jurisdiction over the State and Article 370 shall be applicable subject to such exceptions and modifications and may even cease to operate but the recommendation of the Constituent Assembly will be condition precedent”. On the basis of this authoritative statement of Shri Ayyangar, the political compact was arrived at between the J&K ruler and the Indian Government and Article 370 was incorporated in our Constitution.
The salient aspect of Article 370 was that J&K was the only State which negotiated the terms of its integration with the Indian Union and it would have its own Constitution to be framed by its own Constituent Assembly. The State Constituent Assembly was set up whose deliberations lasted from 1951 to 1956 and its Constitution came into force on January 26, 1957. Article 3 of the J&K Constitution mandated in unequivocal terms that J&K shall be an integral part of India. The other unique aspect about J&K was that the amending power guaranteed under Article 368 of the Constitution would not be used for affecting any change in the J&K Constitution and the Constitution of India can be extended to J&K by a Presidential Order under Article 370(1)(d) only with prior mandatory concurrence of the State Govern-ment. The sui generis nature of Article 370 was evident from the fact that it was a self-executing provision and provided for its abrogation vide clause (3) subject to the overarching caveat that it shall be necessary for the President to obtain the recommendation of the Constituent Assembly of the State.
Immediately after the Constitution of India came into force on January 26, 1950, a series of Presidential Orders extending the provisions of the Constitution in J&K were issued from time to time. For instance, Part-III of the Constitution which guaranteed fundamental rights was extended to J&K by a Presidential Order in the year 1954. The manner and speed with which the Nehru Government issued Presidential Orders, and thereby extended the provisions of the Constitution in J&K was interrogated by the President, Rajendra Prasad, as early as in 1952 when he wrote that “any provision authorising the executive Government to make amendment in the Constitution was an incongruity and clause 3 of Article 370 was not intended to be used from time to time as occasion required and the correct view appears to be that recourse is to be had to this clause only when the Constituent Assembly of the State has been fully framed”. Even the Constitution Bench of the Supreme Court in Premnath Kaul vs State of J&K (AIR 1959 SC 749) held that “the Constitution Maker attached great importance to the decisions of Constituent Assembly and the exercise of power by the President and the Parliament was made conditional on the final approval by the said Constituent Assembly”. Thus, it is crystal-clear that the speech of Shri Ayyangar on the floor of Constituent Assembly, the reservation expressed by no less a person than the President of India, Dr Rajendra Prasad over the frequent resort to power autho-rising the President to extend the provisions of the Constitution in J&K and ex-cathedra pronouncement of the judgment by the Constitution Bench of the Supreme Court leave no room for doubt that the recommendation of the Constituent Assembly of the State was sine qua non for repealing Article 370.
Notwithstanding the earnest commitment made by Shri Ayyanger in the Constituent Assembly, the sagacious warning expressed by the then President, Dr Rajendra Prasad, and the authoritative judgment of the Supreme Court, the Nehru Government and the successive governments kept on extending the provisions of the Constitution of India in J&K with almost metronomic regularity resulting in complete dilution of Article 370 (3). As many as 260 Articles out of 395 of the Indian Constitution were extended even before the Presidential Order passed on August 5, 2019. Article 370 was considerably emasculated by successive orders issued by successive governments of all political hues. The continuous dilution of Article 370 has been critiqued forcefully and with brilliant insight, after doing extensive research, by constitutional expert A.G. Noorani in his well-known book, Article 370: A Constitutional History of Jammu and Kashmir.
Despite the systematic distortion of Article 370, the Constitution of J&K survived, and so was its autonomy in terms of degree, though not in kind. So was Article 35-A, which was incorporated by a Presidential Order issued in 1954, which restricted the right to property to State subjects alone, and it was the prerogative of the State Government to lay down the criteria for defining the State subject. Therefore, more than Article 370, it is abrogation of Article 35-A which strikes at the root of autonomy guaranteed to J&K through Article 370. The speed with and stealth by which such a momentous decision was taken strikes at the root of the very essence of a federalism.
In terms of Clause (3), Article 370 could have been abrogated only on the recommendation of State Constituent Assembly as articulated by Shri Ayyangar in the Constituent Assembly, Dr Rajendra Prasad by expressing his reservation and even the Constitution Bench of the Supreme Court in case of Premnath Kaul. The Constituent Assembly of the State finished its task after framing its own Constitution and was dissolved in November 1956. Thus, there was no Constituent Assembly existing in J&K at the time of deleting Article 370. Even if the mandatory recommendation of a State Constituent Assembly is read down, as interpretive expediency, the mandatory concurrence of the State Legislature or some loose kind of referendum reflecting wider political participation across the political spectrum must be read into the requirement. The State Legislature was dissolved and President's Rule was imposed on the State and prominent political leaders were arrested and there was complete clampdown resulting in blocking of any sort of communication. The only recommendations available before Parliament and the President was the recommendation of the Governor. The Governor under the Indian Constitution is an agent of the Central Government. The agent of the Central Government proposed the abrogation of Article 370 and the Central Government passed the order. The body which is concurring and which is passing the final order is the same body and that represents humungous fraud on the letter and spirit of the text of Article 370, nay wholesale annihilation of the fundamental postulate of fairness. The consultation envisaged under the Indian Constitution cannot be merely formal consultation but must always be effective and meaningful consultation as held by the Supreme Court in a catena of judgments in the context of the appointment of Judges and other constitutional functionaries. Therefore, the recommendation emanating from the Governor, who is the agent of the Government of India, and, consequently, the Presidential Order are non est in the eye of law. Thus, the spirit of federalism, declared as a basic feature of the Constitution by the Supreme Court, has been reduced to a mockery.
The infirmity in the Presidential Order followed by the Parliamentary Act by, first bifurcating the State, and then, downgrading its status from a State to a Union Territory is further compounded by the statement of the Prime Minister, who addressed the nation on August 8, 2019 in which he complained that Article 370 was the source of terrorism and reduction of the status from a State to a UT, would enable the Central Government to speed up the pace of development. The federalism in the Indian Constitution was never contingent on the imperative of development and the speech of the Prime Minister has set an extremely destructive precedent by affecting the federal equilibrium on the ground of development. Similarly, the threat of terrorism cannot be a ground for converting a State into a UT and if this logic is applied, many States, such as Manipur and Nagaland and part of a State, such as the Baster area in Chhattisgarh known for Maoist violence need to be demoted into a UT. Incidentally, the statement of the Prime Minister is further belied by the records as J&K is less poor than many other Indian States. If federalism is linked with development, then the Central Government is empowered to convert any backward State into a UT in the name of development. This is blatant subversion of the Constitution and the principle of federalism. The scrapping of Article 370 and vivisection of State and its conversion into a UT mark decisive steps towards growing centralisation. The outcome would be further distortion in the already asymmetrical federal arrangement.
Moreover, J&K is not the only State which has been conferred with special status. Article 371 (a to j) confers special status to many North-Eastern States, and even developed States like Andhra Pradesh, Karnataka and Goa. Again, Sikkim was integrated in India in 1975 through the 36th Amendment of the Constitution, which incorporated the understanding of then Prime Minister, Indira Gandhi, and the resolution passed by the Sikkim Assembly that two seats would be reserved for Buddhist Sangha and would be filled up through the electorate comprising only the members of the Monastery. When the constitutionality of 36th Amendment was challenged on the ground of seats being reserved in the Assembly on the basis of religion, the Constitution Bench of the Supreme Court in R.C. Poudyal vs Union Of India (1994 suppl. 1 SCC 324) repelled the challenge by holding that the treaty entered into between the Government of India and the integrating States must be honestly observed and implemented and “historical considerations and compulsions do justify inequality and special treatment”. Thus, the selectiveness in the approach adopted by the Modi Government in respect of only the Muslim-majority State in India is all too evident and comment to this effect made by Chidambaram can hardly be taken exception to.
Further, the BJP is not even consistent in respect of the solemn pact arrived at between the Government of India and Integrating Princely States immediately after Independence. After the States were integrated, a solemn commitment was made in the Constitution for the payment of privy purse to the erstwhile Princes and their successors (Article 362), the quantum of which would have become pittance today. But the Indira Gandhi Government, acting under the pressure of the Communist Party of India, abrogated the Article 362, which guaranteed the Prince to receive privy purse, by the 26th Amendment of the Constitution in 1971 after the quashing of the executive order abolishing privy purse by a 11-Judge Constitution Bench Judgment. When Privy Purse was abolished, it was the Jana Sangh (predecessor of the BJP), which was in the forefront of opposing it on the ground of breach of solemn commitment. Today, the BJP has breached the earnest commitment made to J&K by our founding rathers in a most brazen manner.
The Presidential Order abrogating Article 370 and the Parliamentary Act bifurcating the State and thereafter downgrading it by con-verting it into a UT has been done by political sleight of hand. It is an assertion of raw power (as per Bhanu Pratap Mehta: The Indian Express, August 6, 2019) in an extremely crude and unethical manner. The division of J&K has long been an agenda and it could have been done by obtaining the consent of the State Legislature and after extensive debate in the widest possible political spectrum lasting for a considerable time. The arbitrary decision, apart from being vulnerable on the touchstone of the Constitution, is also politically damaging and will undermine democracy. The consent of the governed is the most basic postulate of democracy, and since the consent of the affected party, that is, the people of J&K and their representatives were ignored with all the arrogance, disdain and hubris at the command of the Modi Government a la in the manner of Humpty Dumpty (Lewis Carrol: Alice in the Wonderland), it is democracy which has become casualty. Even the pretence of representation and consent of the affected was not taken recourse to. Any liberal will find herself compelled to concur with the comment of Bhanu Pratap Mehta that “the only currency for this Government is raw power” and the decision “will make a mockery of democracy and deliberation” and most crucially “humi-liation of a Muslim-dominated State rather than integration” and “this will result in Indian democracy descending into majoritarianism without safety valve” (The Indian Express, supra).
One of the most erudite Chief Justices of country, M.N. Venkalatachaliah, in a Foreword to the book, The Constitution of Jammu and Kashmir: Its Development and Comments, written by Dr A.S. Anand, another quondam Chief Justice, wrote that “the Constitution experiments in India — of which the integration of Indian States into the mainstream of Indian constitutional system was a noble effort—are a saga of statesmanship, faith and hope, and had their own sublime moments”. The rash, arbitrary and undemo-cratic nature of the Presidential Order and parliamentary enactment of August 5, 2019 have reneged on the statesmanship, faith and hope and represents the descent from the sublime to the bathos.
The author is an Advocate of the Supreme Court of India.