Examining the presidential proclamation on Article 370

[ S Umpo ]
Anticipating that the ‘modification’ of Article 370 might lead to serious public disorder, the central government has sought to put under house arrest not just the leading politicians of the erstwhile state of Jammu & Kashmir but the whole of Kashmiris by restricting their movement. While the rest of the country rejoices the new Kashmir, the Kashmiri people are shut out from voicing their opinions.
It is absolute truth that the special status of J&K was ‘temporary’ as the constitution explicitly stated in its heading to Article 370. Nevertheless, decades of having privileges bestowed upon by the article, which made it possible for them to have their own constitution and limited the power of the central government to legislate or to apply central laws to the state, has made the presence of this special provision a very ‘basic condition’ for ties with India. Thus, for people enjoying these privileges, it was ‘No Article 370, no Kashmir’, whereas, on the part of the rest of the people away from Kashmir, the provision of Article 370 was against the unity and integrity of the country.
Many had the belief that the provision was the root cause of secessionist movements as it recognized that Kashmir was unlike any other states of India. Therefore, there was a strong sentiment for abrogating the article. Such sentiments embedded a strong feeling in the people of the valley that India seeks Kashmir and not the Kasmiris.
It was at this juncture that the union government sought to send thousands of armies to J&K on the pretext of security challenges by terrorists as suggested by inputs through surveillance. However, there was another surprise in store, in the form of a presidential proclamation vide Constitution (Application to J&K) Order, 2019 which led to ‘demonetization of Kashmir’ by removing it from the constitutional privileges of Article 370.
Furthermore, doubling the wound, the Jammu & Kashmir (Reorganisation) Bill, 2019, was passed, which resulted in J&K being recognized as a union territory (UT) henceforth. The state was also bifurcated into two, which made Ladakh realize its long demand for being recognized as a UT.
In the process of denying the constitutional privileges of Article 370, around 164 state laws have been moved into redundancy, whereas 108 central laws will henceforth be applicable to J&K. This has been made possible after Articles 152 and 308 of the Indian constitution (which provide that the expression ‘state’ does not include J&K, thereby exempting it from the laws passed by the union government) were reduced into idleness by the presidential order of 6 August, 2019.
However, the presidential order passed in exercise of powers conferred by Article 370 (3) did declare that Article 370 shall remain operative, although with a different wording, which enables the application and imposition of laws incorporated in the Indian constitution to the state. The order has sought to declare that all the provisions of the Indian constitution shall apply to J&K, despite anything contrary contained in Article 152 or 308. Thus, any law passed by the parliament which needed to have ‘such exceptions and modifications’ so as to be enforced in the state after due ‘consultation’ or ‘concurrence’ of the state assembly now has been shoved into dismissal.
However, a Pandora’s Box has been opened with the presidential proclamation. Article 370 (3), which gives the president the power to abrogate the relevance of Article 370 itself with a ‘public notification’, puts a caveat by stating that ‘the recommendation of the constituent assembly of the state shall be necessary before the president issues such notification.’
The constituent assembly as envisaged in Article 370, whose purpose is to accomplish something specific beforehand, and in this present case duty on it being to draft the constitution of J&K, is nonexistent in the present tumultuous times. Nevertheless, it was quiet explicit that the recommendation of the constituent assembly, which is composed of members who are deemed representatives of the people, was necessary due to the expression ‘shall’. Possibly, the law requiring strict compliance couldn’t be deemed infructuous merely because the stated body was absent. It could involve an easier liberal interpretation. Thus, in the presidential proclamation added to Article 367, the expression ‘constituent assembly’ will be read as ‘legislative assembly of the state’.
However, in the present circumstances, the ‘legislative assembly’ had been dissolved. The state has been under President’s Rule since November 2018. The recommendation of the legislative assembly thus could not be taken.
The president treated the recommendation of the parliament as the recommendation of the state assembly. However, the validity of this manoeuvre seems doubtful. As the law puts it: what cannot be done directly, cannot be done indirectly. The recommendation of the parliament, it seems, would be difficult to be construed as the recommendation of the state legislature as the same would be tantamount to fraud being played on the assurances of the constitution.
One must remember that when a provision is categorically stated to be ‘temporary’ then it ought not to become a basic structure. It can’t usurp the place of unity, integrity and sovereignty of the nation. Nevertheless, as a nation ruled by a just law, we must also respect, adhere and act in accordance with the constitution. A carrot, no matter how much it resembles a radish, does not necessarily become radish. The same goes for the union legislature and the state legislature. We must learn to honour the assurances of our constitution. If we don’t stand by the assurances of the constitution, how should we expect anything from any person, of any obedience to any contracts made under statutes that are subordinate to the constitution?
What remains to be seen is whether the petitions to the Supreme Court can undo what’s done. Meanwhile, until the conclusion of the petition and even thereafter, it is crystal clear that mere political appeasement is not the requirement of the present times. The Kashmiris seek peace with development and employment, and want to be off the radar of terrorism. The citizens of the valley must also note that any person from the valley demanding protection of Article 370 is not a terrorist or antinational. Such overly jingoistic blanket observations make for bad implications.
The government must take the people of the valley into confidence. However, confidence cannot be secured at gunpoint, for every gun is a threat lurking in the immediate future. The security personnel must also understand that an injury to any civilian causes the eruption of hatred to treble, and thus must show utmost restraint. However, one also needs to acknowledge that soldiers are sacrificing their lives for an issue that they have not created and possibly have no solution to. Certainly the ball is in the court of the union government now. We being a democratic state must remember that a democracy is not all about elections, but about a state with rule of law. May just rule prevail. (The writer is Assistant Professor, Government Law College, Jote.)