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Article 370 repeal doesn’t enjoy protections accorded to constitutional amendments

Reducing J&K to a UT is violative of a healthy federal structure since a UT is subordinate to the Centre and doesn’t enjoy freedoms enjoyed by States in the Union. (PTI Photo)


In October 1945, the Viceroy of India, Lord Wavell had presciently observed that Kashmir would become ‘seat of political trouble’ due to tensions between Congress and Muslim League. This was exacerbated by the ‘intrigues’ of prime minister Ram Chandra Kak of Kashmir (1945-47), seen as the power behind Maharaja Hari Singh.

In 1942, the Cripps’ Mission made clear to the princely states that accession to India would not be automatic and the princes had to sign a treaty with India. When the Constituent Assembly met in December 1946, there were more than 560 princely states, provinces and Chief Commissioner’s provinces. As events transpired, the Maharaja of Kashmir did sign the Instrument of Accession with India in October 1947 (IoA), with provisions for executive and legislative supremacy remaining with Jammu and Kashmir (J&K). Thus, barring few subjects set out in the IoA, the Centre could not make laws for J&K.

The ink on the various instruments of accession had barely dried in October 1949 and Sardar Patel had to impress upon the Constituent Assembly the reasons for assurances made to princes. Recognition of princes and grant of a Privy Purse were inconsistent in a constitutional republic and Patel recognised this. However, the Constituent Assembly needed to understand these assurances helped secure the willing and voluntary signatures of the princes and Patel stated at Constituent Assembly meeting in October 1949, “we are apt to forget the magnitude of the problem which confronted us in August 1947.”

On October 17, 1949, when the draft article 306A (Article 370) concerning J&K was tabled for discussion, Gopalaswami Ayyangar explained the reasons for Kashmir’s ‘special’ status: (a) an ongoing war (b) presence of ‘enemies’ in the territory and (c) assurances made to J&K that executive and legislative powers would vest with the State in keeping with the IoA.

Addressing primacy of J&K legislature would be left to its Constituent Assembly but that assembly did not make any changes. The Constitution (Application to Jammu and Kashmir) Order, 1954 (J&K Order) made it law. The J&K Order passed by Parliament of India in exercise of powers of Article 370 (1), guaranteed supremacy of the J&K’s legislative powers over Parliament. This supremacy could not be undone, except with the consent of J&K. Patel’s assurances on Privy Purses made before the Assembly, are important in relation to Article 370.

A 1970 Presidential Proclamation sought to annul Privy Purses—a grant to the princes guaranteed under the Constitution, by de-recognising the rulers. The Supreme Court struck down the Presidential Order as being in violation of Fundamental Rights of the princes (Madhavrao Scindia v. Union of India). The judgment notes that executive power was exercised for ‘collateral purpose’ and that the Centre tried to do indirectly what it couldn’t directly, and this was a ‘fraud’ on constitutional power. In its words, “Breach of any of the Constitutional provisions even if made to further a popular cause is bound to be a dangerous precedent. Disrespect to the Constitution is bound to be broadened from precedent to precedent and before long the entire Constitution may be treated with contempt ....This is what happened to the Weimar Constitution.” It is these guarantees—incorporated in the IoA, Constitution and the J&K Order, for reasons Ayyangar stated before the Constituent Assembly, that have been undone by the repeal.

The political reality of J&K prior to the 1990s was that its CMs were seen as stooges of New Delhi and contributed to the current feeling of disenfranchisement at the extreme or disaffection at its mildest, the elections of that time being described by former J&K Governor BK Nehru as ‘farcical and totally rigged’. Of course, NDA—or even the BJP had nothing to do with this stark reality—but it is undoubtedly the fault of New Delhi.

A Union Territory (UT), constitutionally, helps the Centre retain key elements of legislative and executive power. UT of J&K won’t have primacy on all State Subjects guaranteed under List 2 of Schedule 7 of the Constitution, and, materially, law and order. President of India—i.e., Cabinet—will have veto powers on certain class of bills. Section of 32 of the State Reorganisation Act makes this abundantly clear. Article 370 was not immutable and with the prior concurrence of J&K, it could have been repealed. However, the repeal was by a Presidential Order—an executive action that doesn’t enjoy the heightened protection of constitutional amendments or, much less, legislative actions. The Presidential Order achieved this by amending Article 367—through an executive order and not a constitutional amendment. The Presidential Order was passed ostensibly without the concurrence of J&K. The reasoning that ‘State’ would include ‘Governor’ and therefore consent of Governor has been obtained exposes itself to challenge analogous to the Scindia case. Reducing J&K to a UT is violative of a healthy federal structure since a UT is subordinate to the Centre and doesn’t enjoy freedoms enjoyed by States in the Union.

Independent of Supreme Court’s adjudication on the challenges these measures do not address the concerns of Kashmiri youth and may not help disaffection among Kashmiri youth. Ladakh has been freed of the legal and political baggage, but it is Kashmir, that demands attention. Without a soothing balm, New Delhi’s control is unlikely to change ground reality.

The author is Delhi-based lawyer (Views are personal)