Three PILs have been filed in the Supreme Court challenging the centre’s move to abrogate Articles 370 and 35A and reducing the state to two Union Territories. Since there are other states in India which enjoy special rights, how credible is the legal challenge?
By Pushp Saraf
As soon as the gates will open, our people will be out, we will fight, we’ll go to the court. We’re not gun-runners, grenade-throwers, stone-throwers, we believe in peaceful resolution.” These were the opening remarks of National Conference (NC) stalwart Farooq Abdullah in his first television appearance in Srinagar after the momentous events concerning J&K on August 5. The Union government had knocked the teeth out of Article 370 of the Constitution which guaranteed special status to J&K, scrapped Article 35A that protected exclusive privileges of its permanent residents as defined under its provisions, sent the separate constitution of the state to the archives and bifurcated the state into two Union Territories, namely, J&K with a legislature and Ladakh without a legislature. This was the first comment from a J&K leader about seeking judicial remedy for the government’s “dictatorial” diktats. Abdullah described the division of the state as our “body being carved”.
The People’s Democratic Party (PDP) is likely to follow the legal route. Its spokesperson and former legislator Firdous Tak dropped a clear hint about this when he accused the “Government of India” of turning “the entire Jammu and Kashmir into an open prison” and caging people to “steal whatever was left of constitutional guarantees made to them at the time of accession”. He described the methodology adopted by the Union government as “arbitrary”, “autocratic” and an “act of aggression on the people of this trouble-torn state”. The two main regional parties, along with most other
pro-India Opposition outfits, are likely to take a joint stand in the Supreme Court.
Legal experts in the Valley are struggling to get details of the August 5 Constitution (Application to Jammu and Kashmir) Order, 2019, and the Jammu and Kashmir Reorganisation Act, 2019, under which the political and geographical contours of J&K have been changed, downgrading it from a special status state.
Congress Leader of the Opposition in the Rajya Sabha Ghulam Nabi Azad, who belongs to J&K, said the state had been reduced to a “non-entity”. According to DMK leader TR Baalu, it was reduced to “two municipalities”. Mobile, internet and cable television services in the Kashmir region were cut off and seriously hampered in Jammu region. According to Nazir Masoodi of NDTV, which has employed satellite services, people confined to their homes in Srinagar and elsewhere may still not be aware of what has transpired. Unknown to the majority of them, their worst fears have come true.
Before being pushed behind an iron curtain along with two former chief ministers, Omar Abdullah and Mehbooba Mufti, they had seen a huge deployment of security forces, eviction of tourists even from safer places and cancellation of the Amarnath pilgrimage. In a highly volatile political society, they did sense that Article 370 and Article 35A might be in serious trouble. The official word was that security measures were necessitated as there was a terror threat from Pakistan.
It served as camouflage for a stealthily planned constitutional coup to pre-empt protests.
Political and emotional reactions apart, judicial challenges to the government’s unilateral measures are in the pipeline. At least one petition has already been filed in the apex court. This was by advocate ML Sharma who challenged the validity of the Presidential Order. Another petition by Congress activist Tehseen Poonawalla seeks withdrawal of restrictions imposed in J&K. On August 8, a bench of the Supreme Court headed by Justice NV Ramana turned down the pleas for their urgent hearing, observing that they would be heard in due course.
“There will be a spate of petitions against the government’s actions,” said Sheikh Shakeel Ahmad, well-known lawyer and PIL activist, to India Legal. Speaking from Jammu, he said: “It is going to be a battle for survival. What has happened is not in accordance with the mandate of the law and the Constitution. The constitutional position of J&K has been altered in a manner unknown to all. Nobody in Kashmir or Jammu ever raised a demand for UT. Why have they been punished? Why has our statehood character been slashed? The protection of local laws and umbrella in the shape of Article 35A has gone. Meagre job opportunities that are available would now be exposed to outsiders. There was no Constituent Assembly. There is no assembly at present. The government was in a hurry not to wait for elections to the new assembly and take into account its view as required under Article 370.”
History of cases
The centre’s moves on Kashmir have been challenged in the Supreme Court. The apex court will have to decide whether Article 370 does, indeed, give sweeping powers to the president. It might also take many months for a constitution bench of the court to allow such a challenge. Below is the history of judicial interventions relating to Kashmir.
- In Prem Nath Kaul (1959), a five-judge bench of the Supreme Court observed that Article 370(2) shows that the continuance of the exercise of powers conferred on Parliament and the president by the relevant temporary provisions of Article 370(1) is made conditional on the final approval of the Constituent Assembly of Jammu and Kashmir.
- In Sampat Prakash (1968), the apex court decided that Article 370 could be invoked even after the dissolution of the Constituent Assembly of Jammu and Kashmir. “Article 370 has never ceased to be operative,” the five-judge bench said.
- The Supreme Court in SBI v Zaffar Ullah Nehru (2016) observed that the federal structure of the Constitution is reflected in Part XXI. The court also said that J&K has a special status, and that Article 370 was not temporary. The court referred to Article 369 of Part XXI that specifically mentions the period of five years; no time limit is mentioned in Article 370. The court observed that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir.
- In Kumari Vijayalakshmi Jha vs Union of India (2017), the Delhi High Court rejected a petition that argued that Article 370 was temporary, and that its continuation was a fraud on the Constitution.
- In Santosh Kumar (2017), the apex court said that due to historical reasons, Jammu and Kashmir had a special status.
- In April 2018, the Supreme Court said that the word “temporary” in the headnote notwithstanding, Article 370 was not temporary.
Talks with a wide spectrum of the legal fraternity in J&K revealed that the Presidential Order 2019 and the Reorganisation Act may face the following legal challenges:
(a) With the elimination of effective provisions of Article 370 and revocation of Article 35A, these measures are the betrayal of a constitutional and sovereign guarantee to the people of J&K and are much like the abolition of privy pursues. There too, there was no mention of the enormous effort made to persuade the princes to be part of integrated India.
(b) Violation of Article 3 of the Indian Constitution which provides that no bill for alteration of boundary of a state “shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the bill affects the area, boundaries or name of any of the States, the bill has been referred by the President to the Legislature of that State for expressing its views”.
(c) “Illegal” and “unconstitutional” amendment through a Presidential Order of Article 367 of the Indian Constitution to introduce a new clause replacing the expression “Constituent Assembly” mentioned in Article 370 with “legislative assembly” (Article 367 deals with interpretation of the Constitution and, hence, according to critics of the Union government, can be amended only by Parliament).
(d) The manner of annulling the separate constitution of J&K.
(e) Breach of the Instrument of Accession accepted by the government of India after having been signed by Maharaja Hari Singh and the violation of the spirit behind the enactment of Articles 370 and 35A.
(f) The “brute” manner in which the Presidential Order, 2019, and Reorganisation Act were enacted and made applicable by shutting the voice of the affected population of J&K by deploying a large uniformed force, imposing restrictions on movement and cutting off communication services.
(g) Discrimination against J&K by abolishing its special status while retaining special constitutional provisions for Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh and Goa.
(h) Unprecedented downgrading of a full-fledged state into two Union Territories.
(i) Dissolution of the legislative council.
(j) Delimitation of assembly constituencies without following the due process.
The picture will become clearer only after the security blanket is lifted and the people come face to face with the legal provisions they have been asked to live with from now on. Most of their immediate queries and worries are born of the sudden taking away of the “constitutional commitment made to them”. On a wider level, they are concerned about the future of centre-state relations and the state of federalism in the country in the days to come.
Quite a few parliamentarians too have sounded alarm that the example set in the case of J&K implies that a ruling political party at the centre can unsettle any state, its land and the population where another political party it considers hostile is in power. It just has to impose President’s Rule on some pretext, dissolve the state assembly and exercise its legislative powers through Parliament where it can use its majority to change the political and physical shape of the state, they said.
Manish Tiwari of the Congress, for instance, remarked in the Lok Sabha on August 6: “This is a constitutional tragedy, all that is happening in this House today. This is not the spirit of Article 3 that Parliament assumes powers of any state assembly or legislative council and unilaterally debates and decides to alter the boundary of that state or splits it into two parts. This is not the essence of Article 3.”
Mohammad Rashid Qureshi, a practising advocate and a former J&K legislator, was quite vocal about the “tragedy” inflicted on them by the central government wrongly interpreting Article 3 and Article 367. According to him, the Union government has acted as judge, jury and executioner in this instance: “It has made a backdoor entry by isolating mainstream parties and twisting constitutional provisions. Amazingly, it has introduced the expression ‘legislative assembly’ by amending Article 367 through invoking Article 370 even though Article 370 does not empower the president to amend the constitutional provisions which are not related to J&K. Article 367 is an independent article and can be amended only by Parliament.” His argument, like that of many others in J&K, is that Article 370 is deemed to have become a permanent feature of the Indian Constitution after the Constituent Assembly of the state ceased to exist in the mid-1950s without recommending its abrogation. “What about the J&K Constitution?” he asked. Clarity about its fate is missing, he said. His interpretation of Article 3 of the Indian Constitution is a “state means a state. State can’t be made a Union Territory. The Article also provides for consultation with the state assembly, which has not been done”.
Ashok Vijay Gupta, senior advocate and a highly regarded public figure, has invited the ire of the BJP-dominated Jammu and Kashmir High Court Bar Association for having defended Article 370 and Article 35A in the historical context. The Association has suspended him for speaking contrary to its decision to support abrogation of both the Articles. Gupta has been a former president of the lawyers’ body and, ironically, was once backed by the BJP in a Rajya Sabha election. In a post on social media, he mentioned that he had not been apprised of the suspension decision and was being targeted for “legally interpreting a provision and the background in which the provision was incorporated in our constitution of India….” Talking to India Legal, he said he was possibly being hit for being “correct and truthful”. Several lawyers have expressed resentment over the action taken against him and threatened to resign en masse from the Association. The last word on this has not yet been heard.
HC Jhalmeria, an advocate known for his leftist leanings, also felt that a challenge has been posed to a rich historical background marked by several positive measures taken to pave the way for J&K becoming a part of the country. “The whole edifice,” he remarked, “has been set on fire by the Union Government to hide its failure over controlling militancy.”
Of course, the BJP is riding high.
It is adding a touch of drama to heighten the effect of triumph of its controversial ideological plank. As soon as President Ram Nath Kovind formally signed the virtual epitaph of Article 370 after the passage of a statutory resolution in Parliament, Speaker Nirmal Singh of the dissolved J&K assembly, who was formerly state BJP president and deputy chief minister, took off the state flag from his official vehicle and replaced it with the national Tricolour, declaring that “from today there will be ek vidhan (one constitution), ek pradhan (one prime minister) and ek nishan (one flag).”
Clearly, the BJP sees the latest developments as the successful culmination of its decades-old campaign based on the slogan “ek desh mein do vidhan, do pradhan, do nishan nahin chalenge (there cannot be two Constitutions, two prime ministers and two flags in one nation)”. United J&K had its own Constitution and a red flag with three equidistant white stripes representing its three regions—Jammu, Ladakh and Kashmir—and a white plough representing farmers. The flag was flown along with the Tricolour on government buildings and official vehicles of constitutional functionaries. J&K’s popular head was known as the prime minister till March 30, 1965, when the Congress through an amendment in the state constitution changed the nomenclature to chief minister. Now the other two distinct symbols—the J&K constitution and the flag—have also become museum pieces. And J&K itself as a state is consigned to history.
Unless, of course, there is a contrary judicial review.