Article 370: Shots Fired, Shots Missed

State of Jammu and Kashmir has been in the top trending terms making global headlines with the sudden revocation of Article 370, pulling the iron curtain it adorned since 1949. Numerous petitions have been filed before the Hon’ble Supreme Court criticizing the diplomatic development so much so that Justice Gogoi, the present Chief Justice of India hinted towards visiting the valley. In such times of political turbulence, creating waves in the geo-political, regional and territorial dynamics of the state, almost every strata of the society had an opinion about it. This opinion was largely based on the inputs from News, Social Media and other forms of reporting. For many it was another trending topic to create memes and entertainment content while for some it was a matter of nationalism and courage. In this whole exercise of decoding the highlighted Article 370, many chose to be lawyers, by taking sides to the situation, I would prefer to play the detective by lighting the candle from the bottom.
The politically charged situation that led to the inception of Art. 370 in the Constitution of India originated due to the most influential factor of Indian politics -‘Religion’. When the rulers of the princely states were asked to accede to any one of the two dominions (i.e India or Pakistan) by signing the ‘Instrument of Accession’, nobody could have imagined such a typical possibility as a third option to the situation i.e. conducting a Plebiscite to determine the fate of the state. 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 of ‘Map of Hell’ – 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”. Fate of Jammu and Kashmir, a place attributed to be Heaven on Earth turned dark when Maharaja Hari Singh reserved his seat in the darkest places of hell, by maintaining a state of neutrality on the Instrument of Accession, 1947. 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 if acceded to merge his kingdom in the Dominion of Pakistan. On the other hand, Dominion of India, although a country with no official religion, it chose to adopt 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 and he, a hindu ruler. Being stuck in a ‘Cliff and Fire’ situation, Maharaja betted on Self-Interest over and above Public-Interest, creating a political earthquake of statelessness and abyss for generations to suffer.
On a plain reading, the Constitution of Jammu & Kashmir spotlight on the fact that the last man to provide a representation for State of Jammu and Kashmir in times of failure of Constitutional Machinery shall be the Governor of the State duly aided by the Cabinet Ministers of the Legislative Assembly of the State. In situations imposing President’s rule, 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 cut the confusion, at the time of introducing Art.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 the 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 3 April 2018, the Supreme Court of India gave a similar opinion declaring that Article 370 has acquired a permanent status. It stated that, since the State Constituent Assembly has 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] 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 whole of the state. Unfortunately, this breach of mutual Bona Fide has opened fresh gateway to entertain the theory of deeming fiction thus resulting in one-sided decision making authority.
Present Government of India has light-up the runway for future governments and leaders to take-off on the same mischief for entertaining 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 specifically the ones that boundary the territories from the East, asituation of political monopoly could be drilled in the pool of future elections. With past instances of unfair practices by political parties and coalitions at the Centre, being excellent examples on the ‘Misuse of Art. 356 (State Emergency)’ and Governor’s role in forming State Governments, aimed to gain political dominance in states, adopting such crooked ways of gaining power would only instigate concerns over the Bona Fide intentions attributed towards the Elected Representatives of – ‘We, the People of India’.
On employing tools of Interpretation, Article 92 of the Constitution of Jammu & Kashmir; and Article 370 of Constitution of India, the legislative intent of the framers can be found pointing to the conclusion that last word on sovereignty of Jammu &Kashmir vests with its people i.e. the Legislative Assembly of Jammu and Kashmir. In the light of the 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, President can pursue unilateral decisions under Article 370, latter case does not allow the President, acting in the shoes of Sadar-e-Riyasat of the state, to iron out on the very legality of Article 370, for this would completely frustrate the pious agreement of Sovereignty noted in black, in the Instrument of Accession dated 26th October 1947. It is Clause 7 of this Instrument of Accession signed by Maharaja Hari Singh which declare 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.
Though it may be interpreted as mischief adopted by deeming consent from Parliament on behalf of the Legislative Assembly of Jammu & Kashmir shall amount to nothing but eyewash to the Constitution of India as the same is incongruent with the intentions of the framers.Such bullish approach to single handedly crush the immunity provision of the state’s sovereignty is a clever solution by-passing 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 is 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 as the same can be deemed legal only if given by the elected représentatives constituting the Legislative Assembly of the State of Jammu & Kashmir, as clearly specified in Sub Section 3 of Article 370.
(The author is advocate, Delhi High Court)