Bifurcation of Jammu and Kashmir will not stand legal scrutiny

The attack on Article 370 — the most contentious and sensitive article of the Constitution of India — was complete when the Modi government on Monday, August 5, 2019 introduced in the Parliament a draft resolution recommending to the President its abrogation along with a bill to reorganise the state of Jammu and Kashmir. It did not give the MPs adequate time to study and critique the proposals.

This finally explained the puzzle behind the government’s move to put several mainstream political leaders of the state under house arrest at midnight, suspending mobile and internet services and imposing curfew-like restrictions in several parts of the state after cancelling the Amarnath Yatra.

Notably, the conditions under which Jammu and Kashmir acceded to India had led to the formation of Article 370 of the Constitution of India, which bestowed a special status on the state. It limited the Centre’s ability to enact laws on the subjects apart from those acceded to India by the erstwhile Kingdom. This was a temporary provision in the Constitution to govern the state’s relationship with the rest of the Union till such time as the Constituent Assembly of Jammu and Kashmir met to determine the exact nature of the relationship.

Eventually, the Constituent Assembly of Jammu and Kashmir enacted the Constitution of Jammu and Kashmir, which accepted the state’s position as an integral part of India while retaining the special status provided under Article 370. It placed a bar on the future Legislative Assembly from interfering with the constitutional relationship between the state and the Union.

The special constitutional status of the state is an example of asymmetrical federalism in India for it is very much possible to be an integral unit of the Union while retaining special powers.

In fact, Article 370 (3) states that the article can cease to operate if the President issues a notification to this effect, provided the recommendation to make it inoperative is obtained from the Constituent Assembly of the state. The latter requirement exists so that the residents of the state can determine the nature of their status in the Union.

But the President invoked modification powers under Article 370 by issuing the Constitution (Application to Jammu and Kashmir) Order, 2019 to substitute the Constituent Assembly of the state with the Legislative Assembly of the state, thereby removing the constitutional requirement to convene a newly elected Constituent Assembly to determine the future of Article 370.

Since President’s rule under Article 356 is in operation in Jammu and Kashmir, the government has argued that Parliament can act as the Legislative Assembly of Jammu and Kashmir while recommending the abrogation of Article 370, thereby meeting the Article 370 (3) requirement.

When a State is under President’s rule, Article 356 (1) (b) empowers the President to vest the powers of the Legislative Assembly of the state with the Parliament. But these powers are an interim arrangement for the enactment of laws till a new Legislative Assembly is elected, so that the state is not adversely affected due to the absence of an Assembly.

The consent required under Article 370 (3) is not routine legislative power. It is a constituent power which determines the nature of the constitutional relationship between Jammu and Kashmir and the rest of India. Article 370 (3) protects the interests of the people of Jammu and Kashmir by letting its residents determine their status. Thus an elected body of representatives of Jammu and Kashmir must be convened, to clearly express the views of the people of the state. For Parliament to arrogate such powers to itself, flies in the face of the purpose of this provision. This is not only unconstitutional, but also grossly undemocratic.

Pertinently, there are two forms of modification powers under Article 370. The modification power under Article 370 (1) (d) is in relation to the modification of other provisions of the Constitution of India vis-a-vis its application to the State of Jammu and Kashmir, whereas the modification power under Article 370 (3) is wide enough to modify the text of the article itself.

However, to exercise the modification powers under Article 370 (3), the consent of the Constituent Assembly is required. This is why when Article 370 was modified to insert an explanation to state that the Government of the State shall mean the Sadar-I-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, it was modified only after obtaining the recommendation of the Constituent Assembly of Jammu and Kashmir in November 1952.

Therefore, the presidential order substituting the term “Constituent Assembly” with the term “Legislative Assembly” appears void as it modifies the text of Article 370, without meeting the requirement under Article 370 (3). Thus, the resolution placed in the Parliament of India in furtherance of the presidential order, recommending the deletion of Article 370, itself looks unconstitutional.

The powers of the Legislative Assembly as provided under Article 370 of the Constitution of India and under the Constitution of Jammu and Kashmir cannot be interfered with as long as the “special status” of the state continues to stand. Therefore, the Jammu and Kashmir Reorganization Bill, 2019 which bifurcates the state into two Union Territories, is unconstitutional as Article 370 has not ceased to operate as the government failed to satisfy the requirements under Article 370 (3).

Questions are already being asked over the government move to amend Article 370 through the provisions of the same article besides the presidential decree that ignored the requirement of getting the approval of the Constituent Assembly of Jammu and Kashmir and the way the draft resolution was brought to the Parliament without prior notice to its members.

The government’s decision to abolish special status of the state could not have come at a worse time when the region is steeped in alienation. One can only hope and pray that this does not encourage the bullet over the ballot in the Kashmir Valley in the days to come.