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A monumental litmus test

Topics covered:

  1. Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.

 

A monumental litmus test

 

What to study?

For Prelims: Overview of Articles 370, 367 and 35A, instrument of accession.

For Mains: The Recent controversy over Article 370, centre’s move and what’s the way out?

 

Context: The Supreme Court of India is all set to face a litmus test. The cases before it concern not only the validity of the government’s decision to virtually revoke Article 370 of the Constitution — and, with it, the special status that Jammu and Kashmir (J&K) enjoyed — but also the legality of the chilling limitations placed on civil liberties in the region. How the court decides these cases will have a deep bearing on the destiny of democracy in India.

 

Why the move to suspend Article 370 is being criticised?

  1. The government has achieved this not through debate and deliberation but through constitutional obfuscation.
  2. In defending its decision, the government has already offered a plethora of justifications — in this, the important and critical need to re-assimilate in J&K, Kashmiri Pandits who suffered a harrowing exodus from the State has scarcely found mention.
  3. In finding itself thwarted by these constraints, the government says, Article 367, which provides rules for interpreting the Constitution, has been modified insofar as it applies to J&K by providing that wherever the term “Constituent Assembly of the State” was used in Article 370 it would refer only to the “Legislative Assembly of the State”.
  4. The substitution, in effect, does not merely alter Article 367, but it also impinges on Article 370 itself, something which the provision, decidedly prohibits.
  5. Besides, the task has been finished when the state was under President’s Rule.
  6. Because J&K was under President’s Rule, Parliament had now stepped into the shoes of the State’s Legislative Assembly. This meant that, as a result of the newly shaped Article 367, it also acted as the State’s Constituent Assembly.
  7. The upshot of all this was that a decision of portentous significance affecting J&K’s political future was made even though the people of the State were afforded neither an opportunity to speak for themselves nor the chance to speak through their own elected representatives.

 

What Article 370 said?

  1. Article 370’s raison d’être is contained in the Instrument of Accession signed by Hari Singh, the then Maharaja of J&K, on October 26, 1947.
  2. The provision, in constitutionalising the terms of that accord, stipulated that Parliament could legislate for J&K only over matters concerning external affairs, defence and communications.
  3. Where Parliament intended to legislate over additional areas otherwise provided for in the terms of the accession, it could do so by consulting the State government.
  4. But where it proposed to enact laws beyond the agreed subjects it required not only the State government’s concurrence but also the express ratification of J&K’s Constituent Assembly.
  5. The Article, therefore, clearly envisaged the idea that J&K would have a Constitution of its own.
  6. Article 370(3) accorded the President a power to declare either the Article in full or any part of it inoperative on the recommendation of the Constituent Assembly of the State. This recommendation was a “condition precedent” to any effort at abrogating the provision.
  7. It was thus clear that once J&K’s Constitution came into force, together with Article 370, it would form a cohesive means of governing the State.

No doubt, this original arrangement was meant to be temporary. But it was temporary only in the sense that the structure of governance would eventually be elucidated by the J&K Constitution that the State’s Constituent Assembly was meant to frame. 

 

Conclusion:

Regardless of the ends of the government, what ought to be clear is that the rule of law demands that any state action is bound by the Constitution and its limits. After all, that is precisely why we have a Constitution underpinning our democratic republic.

When judges exercise their minds on the simple legality of the government’s orders it should be evident to them that the manner of quashing of Article 370 is unlawful. And that, for the court, is all that should matter.

The processes concretised by the Constitution are important because they partake in them a vow to pay heed to the consent of the governed. When those processes are allowed to be broken they strike at the understanding that sovereignty rests with the people.

 

Sources: the Hindu.

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