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Abrogation of Article 370: Some Questionable Aspects

Article 370 can be found in part 21 of the constitution of India. This article gave freedom of drafting its own constitution to J&K and a separate flag too. The tenure of the legislative assembly is 6 years. This article limited the legislative powers of the parliament on the matters of J&K. The central government, through a presidential decree, set in action the repeal of Article 370 on august 5, 2019, resulting in a major constitutional and political upheaval in India.

This was followed by a bill declaring the state of J&K to be defunct. Although this move was quite daring, the process followed to revoke is quite questionable. The issue of article 370 is still relevant because even after almost 3 years of revocation of this article as we can still witness its repercussions. This paper talks about the questionable aspect of this move.

How Was The Article 370 Abrogated?

The state of J&K was under the governor's rule for six months and then the president's rule was issued on the 20th of December 2018. The president's rule is issued under article 356 of the Indian constitution. Under president rule, the whole state of J&K came under the president and the operations of the state were to be executed by a centrally appointed governor.

Firstly, coming on the abrogation part, it is quite questionable whether article 370 can be abrogated or not. In the Prem Nath Kaul case, the supreme court held that the special status of J&K cannot be revoked since it is permanent in nature. However, in multiple cases including the recent one i.e., State Bank of India vs Santosh Gupta Anr, the supreme court held that article 370 has acquired a permanent status, irrespective of the words "temporary" written in the act.

However, there is a legitimate way to abrogate this article given by the drafters of the constitution. Article 370 can be abrogated by using article 370(3). Clause 3 of article 370 that the president can cease the operation of article 370 through a presidential order but only after concurrence with the constituent assembly of the state. However, it was dissolved in 1957 and there was a vacuum in the position of giving concurrence. So, there was a question about the future of article 370. But the central government uniquely bypassed this loggerhead.

Article 370(1)(d) allows the other constitutional provisions to apply to the state of J&K, through a presidential order, but only after concurrence with the state government. The central government, through Presidential Order C.O. 272 (order 1), added a clause in article 367 i.e., the interpretation clause of the constitution.

The order replaced the word 'constituent assembly' in article 370(3) with the 'legislative assembly of the state'. Now the concurrence of the constituent assembly was not required. And the state of J&K had been under the president's rule for months. So, there was no elected government established there. The concurrence of the governor was taken, as the governor was looking after the operations of that state during the president's rule. The order also superseded all the past presidential orders related to J&K.

Then Presidential order C.O. 273 (order 2) was issued which applied all the provisions of the constitution on J&K. Therefore, order 1 only weakened article 370, it was order 2 which abrogated article 370.

Questionable Aspects

Violation Of Basic Structure Doctrine:

As discussed earlier, as J&K was under the president's rule at that time, the concurrence of the governor was taken in place of an elected state assembly to revoke the article 370. The Governor is elected by the president and is a representative of the union. Taking the consent of the governor would mean that the union government has taken its own consent to revoke the article 370. Equating the consent of the governor with that of the state assembly violates the tenets of federalism and democratic principles.

There was no consideration of the people of J&K when this abrogation happened. Basically, the union bypassed the people of J&K and revoked the special status. The constitution of India allows the democratic form of government in which the will of the people is represented. However, this move was undemocratic in nature.

In Kesavananda Bharti vs State of Kerala, the importance of basic structure was emphasized, and it was reiterated that the basic structure of the constitution can't be amended. There was a violation of both federal and democratic principles by the union and both principles form part of the basic structure.

Doctrine Of Colourable Legislation:

This doctrine basically means when one does not have the power to do it directly, one can't do it indirectly. This doctrine was discussed in K.C. Gajapati Narayan Deo vs. State of Orissa. In the present case, the union has done something similar. The union could not amend article 370 directly as it required the concurrence of the constituent assembly (as discussed above). So, they gave themselves the right to amend article 370 by amending article 367. This is tantamount to doing something indirectly that they could not do directly.

Moreover, article 370 (1)(c) is also important here. It says that article 1 is applied to J&K. This means that schedule 1 also applies to J&K. Schedule 1 uses the words 'State of J&K'. This means we can't use the state reorganization act to convert it into union territory as it would lead to a violation of schedule 1. Article 370 acted as protection for article 1.

But through order 2, government abrogated the article 370 and then came up with Jammu and Kashmir state reorganization act 2019, so as to change the state to a union territory. This exercise can be termed as colourable.

Doing This Move During Emergency:

In June 2018, BJP broke the alliance with PDP. This led Governor Satya Pal Malik to dissolve the legislative assembly as no party was there to form a majority responsive government. Since there was no state machinery, as per section 92 of the J&K constitution, the governor's rule was imposed (a peculiar example of the special status of J&K). For the first six months, the state was under the governor's rule but after the exhaustion of this period, the president's rule was imposed in the state.

There was further extension of this presidential rule time by time. The reasoning behind the president's rule was to make the environment conducive for the election commission to hold the state elections. However, what the union did was they bought changes to the state which altered the state permanently. The rationale behind the imposition of emergency was to make the environment conducive to holding state elections but what the union did was very remote to what the rationale was.

It is against constitutional ethics, and morality to bring permanent changes during the president's rule. During the president's rule, the state administration is carried on by the governor of that state who will be representing the president- the head of the state. The will of the people is not represented during this tenure as the governor is not elected by the people but appointed by the president. Therefore, it is wise to not take any policy decision during this tenure as those decision is bound to affect the people of the state.

Why The Compliance With The Legitimate Way Was Essential?

The history of article 370 is very rich. It was drafted by N. Gopalaswamy Ayyangar to respect the cultural identity and uniqueness of the state of Jammu & Kashmir. Ayyangar drafted article 370(3) and inserted that the concurrence of the constituent assembly is necessary.

In my opinion, it meant that Ayyangar wanted the will of the people to prevail as an abrogation of the special status will affect the interests of the people of J&K. The union government should have taken the consideration the will of the people because it is the citizens of that state only whose life would be affected.

The thing which is problematic is not the revocation of this article but the procedure which was followed for it. The procedure on the face of it looks legally sane but on close evaluation, in my opinion, is against our constitutional values. Perhaps, the union could have resorted to other legitimate ways to scrap articl3 370.

They could have used article 368 of the constitution or would have waited for the establishment of a properly elected government of J&K, which represents the will of the people, so as to take their concurrence.

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