An Illusion of Unconstitutionality : Article 370

Ameya Sharma*

INTRODUCTION

The status of the state of Jammu & Kashmir (“State of J&K”) has been amended to form two Union Territories (“UT”), leaving the former state bereft of its special provisions for governance. This was not a result of the ‘abrogation’ of Article 370, but rather by way of its ‘de-operationalization’.

The Union Government has been accused of engineering a devious mechanism of surpassing the many provisions of checks and balances that had been embedded in the Constitution of India (“Constitution”), in order to preserve the special status for the State of J&K. The piece will further substantiate on how the Centre is in direct contradiction of the basic doctrine of colourable legislation – ‘what cannot be done directly must not be done indirectly’.

After a long hearing of 16 days, the Supreme Court of India (“Supreme Court”) has reserved its verdict. The Supreme Court has extensively heard arguments of both sides but the outcome cannot be predicted. Through the medium of this article, the author aims to explain certain underlying reasons due to which the Supreme Court may not overturn the abrogation of Article 370 that may not be underscored in the judgment itself.

This piece is a comment on the excessively delayed cognizance by the Court, the likelihood of judicial validation of the abrogation and the reasons thereof which may not find a place in the judgment itself. The author shall first comment on the colourable legislation used by the Centre for the process of de-operationalization of Article 370. Following this, the factors for likely declaration of constitutionality are discussed, the article also briefly recognizes a recurrent pattern of a minimalist judiciary that is being observed in recent times. The author finally concludes by discussing the sociological disadvantages that could discourage the judiciary from invalidating the abrogation.

DE-OPERATIONALIZED, NOT ABROGATED

Article 370(1)(d) vests the powers in the President to modify and make applicable the provisions of the Constitution which were not applicable to the state J&K by default. However, the final amendment that de-operationalized Article 370 in 2019 took up the onus to end the distinction between J&K and other Indian States by diluting its special status and dividing it into two separate UTs – Ladakh and a new Jammu & Kashmir, which are now fundamentally under the control of the Union Government.

This process involved various constitutional provisions, as well as loopholes, in the laid-down procedure, briefly explained as follows; the powers of the president under Article 370(1)(d) were utilized to make Article 367 (interpretation of provisions) applicable to J&K’s special status The Parliament was allowed to reinterpret various key phrases of Article 370 and change their meanings via this insertion. For instance, the phrase, ‘Government of State’ under Article 370(1)(b)(i) was re-interpreted as ‘Governor’. Similarly, the ‘Constituent Assembly of the State’ was refurbished to mean ‘Legislative Assembly’. This insertion allowed the Parliament to interpret various imminent phrases present in Article 370. The phantom of the Constituent Assembly for the State of J&K was now replaced with the Union Government. This now signified that the special powers of the State J&K could now be rescinded, not with the concurrence of the Constituent Assembly of J&K, but of the current Legislative Assembly. Once the union government positioned itself as the competent authority to gear Article 370, it passed Presidential Orders CO 273 (“1”) and CO 272 (“2”) as well as the Jammu and Kashmir Reorganization Act, 2019 (“Reorganization Act”). Therefore, the Union Government has not erased the special powers of the State of J&K from the Constitution but has rather made them dormant by exercising indirect powers. Thus, 370 is not abrogated but de-operationalized, implying that there may be a possibility of re-invoking the powers of J&K under 370. However, it may have negative consequences which this piece elaborates upon.

UPHOLDING CONSTITUTIONALITY: THE MORE LIKELY PATH

Through its verdict, the Court may aim to pacify the issues that have resulted due to the abrogation. However, it is unlikely that it may declare the abrogation of Article 370 unconstitutional. This may be due to several factors such as legal complexity and public policy concerns, which may not have been explicitly addressed during the hearings.

This section argues that even if the Supreme Court were to disfavour the abrogation, it would only criticize the Government for abusing the scope of its powers but unable to reverse the inoperability of 370.

State to UTs: A layer difficult to be reversed

The Union Government’s core interest was met by way of the two presidential orders (1 and 2) that made the special powers for the State of J&K inoperable. This in itself was enough for the fulfilment of the Government’s objective of ‘development of the state’ (emphasis on ‘state’). It was not necessary to bifurcate this state into two separate UTs. However, in order to secure central control over the territory, a protective layer was added by demoting the status of the State to the status of two Union Territories.

Article 370 deals with provisions with respect to the State of J&K. The Reorganization Act diluted this ‘State’ into two separate UTs. Consequently, the provisions of Article 370 become inapplicable to the UTs since they no longer qualify as a ‘State’.

Some may argue that Article 367 could be used to reinterpret the ‘State of Jammu and Kashmir’ to ‘Union Territory of Jammu and Kashmir’. This contention stands invalidated due to two reasons. The judiciary is only vested with the power to interpret a particular legal provision. Equating the status of a State to a Union Territory is far outside the ambit of interpretative powers of the Judiciary. This becomes an onus of the Legislature under Article 367 as it could only be done by way of an ordinance made either by the President or Governor, as per Article 367(2).

Further, even if the Supreme Court issues an order favouring the overturn of the resolution, the procedure of reversal ultimately rests in the hands of the Legislature by way of due parliamentary process which can be delayed as per the whims and fancies of the Government, if it so desires. The parliament has constantly given its best to defy and undermine the powers of the judiciary. The Collegium system of appointment and, the Delhi Services Bill are some of the recent instances of this enduring rift.

This was a foreseeable move by the Central Government for the Abrogation of both, Article 370 and 35A, which was a very clear point included in BJP’s 2019 election manifesto. It is also important to consider the farce chances of implementing this solution. Since the Reorganization Act was made and passed with the very objective of undoing the special powers for the State of J&K. It is improbable and irrational to assume that the Legislature would be willing to grant back the special powers merely because the State has now been diluted to a Union Territory.

Further, the process of centralization of power in the State of J&K did not only concern its reduction in status but also its bifurcation into two UTs- Jammu & Kashmir and Ladakh. Hence, hypothetically, even if the Parliament were to insert Article 367 and interpret ‘State’ as ‘Union Territory of Jammu and Kashmir’, it would have limited applicability to only the territory of present-day Jammu and Kashmir. This application of 370 would be unfair to the citizens of UT of Ladakh, who were formerly eligible to claim the benefits under the special provisions under Article 370. If the special provisions were only to apply to the UT of Jammu & Kashmir once again, a proposal to include the UT of Ladakh in the scope of Article 370 would be a prerogative of the Legislature, which is unlikely to gain popular support in the Parliament, given the history of popular support to abrogate the special powers. Though this question has already been posed before the Supreme Court, it is unlikely that it will be able to enforce the reversal, if granted, due to the previously discussed system of parliamentary process.

Furthermore, there has been a recurrent pattern in recent Supreme Court rulings wherein they have accepted indirect acts of the legislature as fait accompli, due to its exceedingly late cognizance, the bench recognizes the illegal aspects but allows them to escape from the folds of Law and Order. This could further be substantiated by connecting it to the concept of minimalist judiciary. It is a concept wherein courts address only that which is deemed to be necessary and anything beyond it is overlooked. This pattern is akin to one that can be seen in the Indian courts currently. Addressing 370 Abrogation or Demonetization as isolated incidents is not enough, we require a broader view wherein these recurrent patterns of harmful legislative autocracy are confronted and solutions addressed.

Practical Hurdles in the Reversal

The revocation of 370 is not confined in its effects. The ramifications will be multiple in nature, one of which is discussed in this section.

Rescinding Article 370 implies an erosion of Jammu and Kashmir’s exclusive powers over their land as well as employment opportunities due to another provision. Article 35A was an extension of 370 which granted a sui generis nature of rights and exclusivity to the citizens of Jammu and Kashmir. It restricted outsiders from buying land or gaining employment. Following this, there has been an upsurge in land purchase agreements in the Union Territory, primarily by the ‘outsiders’.

This is yet another hassle that comes in the way of the reversal of the abrogation. If the Supreme Court favours the unconstitutionality of the abrogation, it would automatically mean a revival of Article 370 as well as 35A. In such a case, these new owners would lose their property rights overnight. Alongside, the ‘outsiders’ who have settled themselves in the Union Territories and have acquired employment for their survival would be displaced.

The practical ramifications of the repeal have had four years to take effect and a reversal now would create a fait accompli. Therefore, it is argued that the judiciary has lost its ability to defy the abrogation since a disagreement would result in great disarray for the common folks and could potentially lead to great upheaval, violence and disputes reminiscent of the 2019 saga.

CONCLUSION

A batch of nearly 25 petitions was filed urging the Supreme Court to take cognizance of the amendment that prima facie digressed from the procedure laid down in the Constitution four years ago. As mentioned earlier, the abrogation was a part of the BJP-NDA-led government’s manifesto. Hence, those in mourning of Article 370 and 35A could not place excessive faith in the Parliament for disapproval of the Reorganization Act or dissent against the presidential orders. Thus, all hopes of expedited action were placed on the shoulders of the Supreme Court.

Unfortunately, the excessively delayed cognizance after four years indicates that the conviction placed in the Supreme Court may have been misplaced. The hearings, however extensively elaborated and recorded, cannot do a lot to undo the changes that have seeped in due to the removal of Article 370, in the humble opinion of the author. Even if there is a possibility to do so, it would lead to making the residents of the two new UTs who are now better off and putting them through the turmoil once again. The welfare and public-oriented approach of the Judiciary would not permit them to allow such a reversal. Further, as already explained in the previous sections, the legal complexity and elaborate parliamentary procedures are impediments to the reversal of the abrogation.

Lastly, it is important for this author to clarify that this piece is not to be construed as a pessimistic outlook of the pending verdict on the constitutionality of Article 370. Rather, it is a letter to the Judiciary for efficient and faster cognizance of matters as imminent as the constitutional validity of an article of the Constitution. Further, it is a foresight into the practical considerations that may influence and impact the final verdict which could not be laid down explicitly in the judicial pronouncement itself. The delayed cognizance, for example, is a falter on the part of the Court which it may not necessarily highlight. Similarly, the unamicable relations between the parliament and the judiciary along with political considerations are certain externalities that may not explicitly be addressed by the bench.

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* Ameya Sharma is a 2nd-year law student, pursuing B.A., LL.B. (Hons) from the National Academy of Legal Studies and Research, Hyderabad.

The views expressed above are the authors' alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.