Modi-fication of Jammu and Kashmir: Masterstroke or Misadventure?

On 5 August 2019, Home Minister Amit Shah announced in the Rajya Sabha that a Presidential Order would be issued to abrogate Article 370 of the Constitution of India, which provides special status to the state of Jammu and Kashmir. He further said that Jammu and Kashmir would be bifurcated into two Union Territories: Jammu & Kashmir (with legislature) and Ladakh (without legislature). A resolution to this effect was passed by the Rajya Sabha on the same day.

The Build-up

Ahead of this announcement, the Union Government sent additional troops to the state to ‘maintain peace and order’ in the wake of an ‘intelligence input’. They went to the unprecedented extent of of suddenly cancelling the Amarnath Yatra. Mainstream political leaders like former Chief Ministers Omar Abdullah and Mehbooba Mufti were placed under house arrest, communication services were withdrawn and curfew was imposed (curbs remain even a year later).

What is Article 370?

Article 370 was inserted in the Constitution to provide special status to the state of Jammu and Kashmir. It allowed the state to have a separate Constitution and mandated the consent of Legislative Assembly with regard to application of laws made by Parliament in the state. This Article was in accordance with the Instrument of Accession executed on 26 October 1947 by the ruler of the state, Maharaja Hari Singh.

Clause 7 of the Instrument of Accession states: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.”

Clause 8 states: “Nothing in this Instrument affects the continuance of my sovereignty in and over this state, or, save as provided by or under this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this state or the validity of any law at present in force in this state.”

The Instrument of Accession documented that while the state of Jammu and Kashmir acceded to the Union of India, it was in exchange for autonomy in some administrative areas. Article 370 spelt out the details.

Is Article 370 Temporary or Permanent?

The title of the Article is explicitly clear: Temporary provisions with respect to the state of Jammu and Kashmir. A plain reading suggests that this was not meant to be a permanent provision. Moreover, the Article provides for a procedure to abrogate it. Clause 3 of the Article states that: “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 Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

However, the Jammu and Kashmir High Court in October 2015 ruled that the Article 370 cannot be “abrogated, repealed or even amended.” It explained that clause (3) of the Article conferred power to the State’s Constituent Assembly to recommend to the President on the matter of repeal. Since the Constituent Assembly did not make such a recommendation before dissolution in 1957, Article 370 has taken on the features of a “permanent provision” despite being titled a temporary one.

The Supreme Court has also expressed a similar view in the SBI vs. Gupta Holding case. It essentially reiterated that as the State Constituent Assembly has ceased to exist, the President of India would not be able to fulfil the mandatory provisions required for its abrogation.

The Glitch

Article 370 (3) requires that only the Constituent Assembly of Jammu and Kashmir recommend repeal of the Article. The High Court and Supreme Court have ruled that since there is no Constituent Assembly now, this provision cannot be satisfied. However, the Article cannot be repealed even if we are to assume, as the Presidential Order of 2019 does, that the Constituent Assembly must be construed as the Legislative Assembly.

The State Legislative Assembly was suspended when President’s rule was imposed in December 2018. Since Article 356 is in force, contended Amit Shah, the power of the Legislative Assembly is vested with Parliament and therefore Parliament can pass a resolution to repeal Article 370. This argument is fundamentally flawed. The Legislative Assembly reflects the will of the people of that State. Under President’s Rule, Parliament must only exercise powers that deal with basic governance issues.

Exercising other powers would be a gross abuse of Constitutional morality. The nature of our Constitution is largely federal, in the words of Dr Ambedkar, “The Draft Constitution is, Federal Constitution in as much as it establishes what may be called a Dual Polity. This Dual Polity under the proposed Constitution will consist of the Union at the Centre and the States at the periphery each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution… The Draft Constitution can be both unitary as well as federal according to the requirements of time and circumstances. In normal times, it is framed to work as a federal system. But in times of war it is so designed as to make it work as though it was a unitary system.” Concurrence of the Assembly is therefore a must.

The Timing

This decision has been taken at a time when the situation in Jammu and Kashmir is grim. It can be gauged by the fact that participation in the recently concluded general elections was abysmal. Insecurity and civilian casualties are at an all time high (in peacetime) under the Modi Government. There is no elected government in the state. A decision of this magnitude should not have been taken without consulting mainstream political parties in the state, civil society (not separatists) and Parliament.

Furthermore, there is no logical explanation for the state being converted into two Union Territories; there should have been consultation at least on the bifurcation. I am reminded of what Jayaprakash Narayan had said in 1966 on Kashmir: “If we continue to rule by force and suppress these people and crush them or change the racial or religious character of their state by colonization, or by any other means, then I think that means politically a most obnoxious thing to do”.

The method of implementing this decision is nothing short of a Constitutional coup. The statutory resolution and the reorganisation bill were circulated while the Home Minister was moving it. The Supplementary List of Business in the Rajya Sabha was circulated after Mr Amit Shah moved them. Even the emergency had a constitutional cover; this Government could not manage even that.

We are a parliamentary democracy, Dr Ambedkar said “Democracy is not merely a form of government. It is primarily a mode of associated living, of conjoint communicated experience. It is essentially an attitude of respect and reverence towards fellow men.” 5^th August 2019 will be recorded as a day when parliamentary democracy was murdered. That it was done in the Parliament House which is 92 years old is a matter of shame.

Conclusion

The debate on Article 370 is being reduced to binaries. It has been co-opted to build a cult around Prime Minister Modi and engender a feeling of hyper-nationalism. While presenting the draft Constitution in November 1949, Dr B R Ambedkar had warned us of this danger too: “There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But… no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty.

This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti… plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world… [I]n politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.”

No Article in the Constitution can be classified into the binaries of good or bad. Let me turn to Dr Ambedkar again: “…however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.“

So is the decision to abrogate Article 370 a masterstroke or misadventure? Only time will tell, but the methods used are definitely a travesty of all principles of democracy.