Print Friendly, PDF & Email

EDITORIAL ANALYSIS : In Article 370 hearing, the original text and spirit count

 

Source: The Hindu

  • Prelims: Jammu and Kashmir-Issue, article 370, geographic location etc
  • Mains GS Paper II: Importance of Jammu and Kashmir, security concerns, delimitation Commission etc

 

ARTICLE HIGHLIGHTS

  • The Supreme Court will begin hearing oral arguments in the case concerning Article 370 of the Constitution.

 

 

INSIGHTS ON THE ISSUE

Context

Jammu and Kashmir-Background .

  • Jammu and Kashmir, from 1846 until 1947, remained a princely state ruled by the Jamwal Rajput Dogra Dynasty.
  • Like all other princely states in India then, Kashmir too enjoyed only a partial autonomy, as the real control was with the British.
  • Hari Singh tried to negotiate with India and Pakistan to have an independent status for his state.
    • He offered a proposal of Standstill Agreement to both the Dominion, pending a final decision on State’s accession.
  • On August 12, 1947, the Prime Minister of Jammu and Kashmir sent identical communications to the Government of India and Pakistan.
  • Pakistan accepted the offer and sent a communication to the J&K Prime Minister on August 15, 1947.
    • India advised the Maharaja to send his authorized representative to Delhi for further discussion on the offer.
  • Pakistan, broke the Standstill Agreement by sponsoring a tribal militant attack in Kashmir in October 1947.
  • India assured help on condition Hari Singh should sign the Instrument of Accession.
    • Maharaja Hari Singh signed the instrument of accession with India (1947).
    • It was agreed that once the situation normalizes, the views of the people of J&K will be ascertained about their future.

 

Article 370:

  • The Constituent Assembly of Jammu & Kashmir was empowered to recommend which articles of the Indian Constitution should apply to the state.
  • The J&K Constituent Assembly was dissolved after it drafted the state’s constitution.
  • Clause 3 of the article 370 gives the President of India the power to amend its provisions and scope.

 

Article 35A:

  • It was introduced through a Presidential Order in 1954, on the recommendation of the J&K Constituent Assembly.
  • Article 35A empowers the Jammu & Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.
  • It appears in Appendix I of the Constitution.

 

Removal of Article 370:

  • It commenced with a presidential order issued nearly four years ago.
  • Amendments were made to make applicable the entirety of India’s Constitution to Jammu and Kashmir (J&K).
  • The State was also sundered into two Union Territories: J&K and Ladakh.
  • It was done when the State was under President’s Rule with no elected Legislative Assembly in place.

 

How was Article 370 introduced?

  • The Indian Independence Act, 1947: It allowed the Government of India Act, 1935, to serve as an interim constitution until the country adopted its own.
  • The statute permitted princely States to accede to India by executing an instrument of accession.
  • In the case of J&K, the instrument came with qualifications that were ultimately written into Article 370.
  • It stipulated that Parliament could legislate for J&K only over matters concerning external affairs, defense, and communications.
  • Where Parliament intended to legislate over areas otherwise provided for in the instrument of accession, it could do so by consulting the State government.
  • where it proposed to enact laws beyond the agreed subjects, it required additional ratification by the State’s Constituent Assembly.
  • After 1957, when J&K’s Constitution came into force, its Constituent Assembly was disbanded and replaced by a Legislative Assembly.
    • Article 370 remained unaltered.
  • Chief drafter Gopalaswami Ayyangar: He described the State Constituent Assembly’s recommendation, as mandated by clause (3) to Article 370, as a “condition precedent” to any effort at abrogating the provision.
    • After the Constituent Assembly was disbanded, this clause had become nugatory.

 

How was it altered?

  • Part XIX of the Constitution, Article 367 comprises a set of general rules for interpreting the Constitution.
    • Through this Article, the President’s order on August 5, 2019, amended with a view to transforming the existing status of J&K.
  • It was done by adding a new clause to Article 367: It stipulated that wherever the term “Constituent Assembly of the State” was used in Article 370, it would now refer to the “Legislative Assembly of the State.”
  • The basic thrust of Article 370 was abrogated, without complying with the precondition that Ayyangar thought obligatory.

 

Issues with the process of removal of Article 370:

  • With J&K under President’s Rule, the Governor came to act not only as the State’s Legislative Assembly but also as its Constituent Assembly.
  • The President followed his decision with a declaration under Article 370(3) that with effect from August 6, 2019, “all clauses of the said Article 370 shall cease to be operative.”
  • New Article 370 proclaimed that all provisions of the Constitution would apply to J&K.
  • The President’s order asserted that it was made with the concurrence of the “government of the state of Jammu and Kashmir.”
    • The State was under President’s Rule, and assent was made by J&K’s Governor.
  • The Union government was effectively assenting to its own decision.
  • Without so much as consulting and securing the concurrence of the State’s democratically elected representatives.

 

Petitioners’ argument:

  • Representative democracy is a basic feature of the Constitution.
  • Any interpretation of the Constitution must strive, they say, towards enhancing this value.
  • Even the framers of Article 370 viewed that any overriding of the provision can only be done through the procedure contemplated in clause (3)
    • That is with the concurrence of the State’s Constituent Assembly.
    • Once the Assembly stood disbanded, this option ceased to exist.
  • Previous presidential orders, including the order introducing the controversial Article 35A, were made without altering the text of either Article 1 or Article 370 in any manner.
  • On a conjoint reading of clauses (c) and (d) of Article 370(1) the President could make applicable to J&K, “such of the other provisions of the Constitution” e., provisions other than Articles 1 or 370 — with modifications or exceptions as deemed necessary.

 

Government’s stand:

  • This is not the first time that different provisions of the Constitution have been made applicable to J&K.
    • There have been numerous instances of presidential orders made through the erstwhile Article 370(1)(d)
    • By securing the concurrence of the State government wherever necessary.

 

Way Forward

  • No doubt, the President’s order on August 5, 2019, only alters the text of Article 367.
    • But as a consequence it upsets the existing text of Article 370
  • By amending Article 370 through changes made to Article 367, the petitioners claim that the Union has done indirectly what it could not have done directly.
  • India’s Constitution establishes a system of governance, where power and authority are divided between the Union and the States.
    • Political scientist Louise Tillin: described this balance as representing a form of asymmetric federalism
      • where some States enjoy greater autonomy over governance than others
      • A feature reflected in various constitutional provisions, especially in Articles 371 to 371J.
    • The Supreme Court has routinely described federalism as representing an essential component of the Constitution: the Court will have to be guided not only by the text of the provision’s original version but also by the spirit that pervades through the document’s basic structure.
    • The Court might want to ensure that fidelity is maintained both to these moral values and to the systems and processes that make up the administration of the country’s laws.
    • At stake in the case is not only the bare relationship that the Constitution establishes between the Union and the States but also the sanctity attached to the various subtleties in this relationship.

 

QUESTION FOR PRACTICE

The banning of ‘Jamaat-e – islami’ in Jammu and Kashmir brought into focus the role of over-ground workers (OGWs) in assisting terrorist organizations. Examine the role played by OGWs in assisting terrorist organizations in insurgency affected areas. Discuss measures to neutralize influence of OGWs.(UPSC 2019) (200 WORDS, 10 MARKS)