This article has been written by Naman Verma pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho and edited by Shashwat Kaushik.
It has been produced by Rachit Garg.
Table of Contents
Introduction
The decision of the Government of India to reorganise the State of Jammu and Kashmir by altering its constitutional status invited both criticism and appraisal equally. The criticism was primarily on the grounds of the constitutionality of doing so and the consequences that followed, and the appraisal was on the grounds that a supposed historical mistake stood corrected.
Not pertaining to the majoritarian or popular view and neither to its criticism, the constitutional validity of the Jammu and Kashmir Reorganisation Act, 2019 and the process followed to even introduce the bill need to be judged solely on legal grounds. Though it has been years and counting, the Supreme Court has yet to arrive at its verdict. Meanwhile, society at large, being unaware of the legal conundrums, bases its proclivity on moral and nationalistic grounds. It wouldn’t be wrong to include such aspects in one’s opinion, but it most certainly needs rational grounds to uphold it. While some are still trying to make sense of what and how, the dust has settled for most of them. However, since the matter is still to be adjudged by the Supreme Court, the legal fraternity remains curious as to its constitutionality.
Irrespective of whether it is constitutionally valid or not, one of the significant aspects of it was the repercussions that the people of Jammu and Kashmir had to face, which raised some serious questions concerning citizen state relationships and governance. The sudden and drastic move was even met with international scrutiny and criticism, and India reverted back to the rationale of it being an internal matter, and rightly so. However, we must understand that the legality of the process can have different views and opinions, but the way or manner in which it was implemented and the rights that were abridged during this process cannot be overlooked either.
Historical retrospection
By giving a final shape to the Mountbatten Plan, the Indian Independence Act, 1947, was enacted, which incorporated the idea of two independent dominions, i.e., India and Pakistan, where the other princely states that did not come directly under the British colonial administration were given a choice to stay independent or to join either of the two dominions. Akin to many other princely states, Jammu and Kashmir acceded to India when Raja Hari Singh, after wavering between the two dominions, finally signed the instrument of accession on October 27, 1947.
However, due to the involvement of Pakistani troops in acquiring Jammu and Kashmir by force, it resulted in a war that only came to an end when the UN intervened by way of a resolution that was signed on January 1, 1949. It provided for a ceasefire in order to maintain the status quo. Moreover, it paved the way for conducting a plebiscite in J&K in order to know the will of the people, which seemed possible. However, since its first condition was never fulfilled by Pakistan, which required it to withdraw the troops from the Pakistan Occupied Kashmir region, the fulfilment of other conditions was not possible.
Considering this as a caveat, in 1954 India consequently dropped the idea of a plebiscite, and by way of negotiations between the then Prime Minister of India, Jawaharlal Nehru, and the Prime Minister of Jammu and Kashmir, Sheikh Abdullah, the Constitution (Application to Jammu and Kashmir) Order, 1954, was made pursuant to Article 370(1) of the Constitution. The consequence was that it added Article 35-A to the Indian Constitution, which, other than describing the provisions for permanent residence in the state, also talked about certain special privileges for such residents.
The dispute between the two countries did not come to an end, and since events like the 1971 war regarding East Pakistan and 1999, the Kargil ended up with bilateral settlements, namely the Shimla Agreement of 1972 and the Lahore Declaration of 1999, both upholding the cease fire regulation of the UN of 1948. And since then, there has been a rise in militancy, which often results in armed rebellions.
Conundrum of constitutional validity
On August 19, 2019, the Indian government brought an amendment to the Constitution removing the special status given to the state of Jammu and Kashmir. The manner in which this amendment was sought has been questioned since. The amendment not only scrapped Article 35-A but also took away the effect of Article 370 altogether.
It started with the Rajya Sabha bringing in the Constitution (Application on Jammu and Kashmir) Order 2019 as per the un-amended Article 370(1)(d) of the Constitution, which provided that other provisions of the Constitution shall apply to J&K as the President may by order specify. However, it provided for such an order to be in concurrence with the state government, which has been provided for in the said notification.
The order provides: Firstly, ‘with the “concurrence of the Government of Jammu and Kashmir,” all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir’. Secondly, since the government could not rely upon Article 370(3) to abrogate other provisions, it sought to amend Article 367, which is the Interpretation Clause, by using the powers under Article 370(1). The amendment so made altered the phrase “Government of the State [Jammu and Kashmir] in Article 370 to mean “Governor of Jammu and Kashmir”. Thirdly, the expression “Constituent Assembly” in Article 370(3) was altered to mean “Legislative Assembly of the State”. This order supersedes the previous Presidential Order of 1954, hence abrogating Article 35-A as well.
Another major step towards completely revoking or scrapping Article 370 was when a Statutory Resolution was passed in the Upper House by exercising the powers given to the President by way of Article 370(3), providing that all the clauses of Article 370 would cease to operate except clause (1). And finally, the Jammu and Kashmir Reorganisation Act, 2019 was introduced and passed by the Parliament, which ultimately reorganised the state of Jammu and Kashmir into the two Union territories of Kashmir and Ladakh, respectively.
On an explanatory note, Presidential Order C.O. 272 used Article 370(1) to amend Article 367, which amended Article 370(3), which replaces the term “Constituent Assembly”. It is this amendment that kicked off the Statutory Resolution by which the President eliminated Article 370 from the Indian Constitution. Those saying that this was constitutionally not valid propose that Article 370(1)(c) makes it patent that the “provisions of Article 1 and this Article (370) apply in relation to that state,” meaning thereby that the President’s power to amend provisions relating to J&K do not extend to Article 1 and Article 370 itself. Moreover, since proviso to Article 3 requires the President to consult the state legislature before altering its status, it has been argued that since the state has been under presidential rule since early 2019, it was in reality the consent of the governor rather than the state legislative assembly, and the governor is considered a representative of the centre at state. Therefore, it can be said that the Central Government gave its own consent to proceed with the amendment.
Impact of amendment on the constitutional rights of people
Ever since the amendment was put in motion, the government has put various restraints on the rights granted to the people by the constitution. One, the government did not hesitate to put major political leaders in Jammu and Kashmir under house arrest and detention, thereby restricting freedom of movement. Moreover, internet services and communications had been banned in the state, and much later, after the Supreme Court’s intervention, they were restored. Hence, freedom of the press was even taken away in this process. Second, the government imposed Section 144 of the Code of Criminal Procedure (1973), thereby restricting the movement of people in the state. All offices, public gatherings, schools, and such were shut down.
So, in a way, all the freedoms guaranteed under Article 19 of the Constitution were abridged under the garb of national security and reasonable restrictions. Whether such restrictions were reasonable or not can, of course, be a matter of debate for some, but the question remains that when less restrictive measures were available, instead of abrogating Article 370 in one instance, other provisions of the Constitution of India could have been applied gradually as they have been done in the past. Also, the right to internet access has been held as a fundamental right under Articles 19 and 21. In Minerva Mills Ltd. and Ors. vs. UOI and Ors. (1980), it has been held that fundamental rights can be suspended in uncommon circumstances, and such suspension should not come at the cost of human freedoms.
It was indeed the need of the hour that Article 35-A should have been altered to make Jammu and Kashmir more accessible to the rest of India, but to make it happen more constructively, an organised strategy could have been adopted instead of making witty amendments by finding loopholes in the law. A welfare state has an obligation towards its citizens to protect their rights and should not resort to inappropriate measures merely to achieve its purpose at the cost of its citizens.
Conclusion
India has been described in the constitution as a union of states. The constitution makers refrained from using the word ‘federation’. The word ‘Union’ was preferred because it bolstered the idea that the Union of India is not the outcome of an agreement among the old provinces, the result being that it was not open to them to secede from the Union on their volition.
However, it would be wrong to say that the signing of the Instrument of Accession was a free choice actually given to the independent princely states. Though the idea as enshrined in the Indian Independence Act, Section 7(1)(c), provided for the princely states to join either of the two dominions with conditions, when it genuinely came into play, the two dominions didn’t shy away from using political sway or force on these independent states. In many such instances, the princely state of Junagadh had signed an instrument of accession in favour of Pakistan. It was when India realised that the state was a Hindu majoritarian state and that joining Pakistan would result in communal tensions that it forcefully occupied Junagadh. Another such incident was in Hyderabad, where the Nizam of Hyderabad and the Government of India had signed a standstill agreement for one year to give the state some time to choose. Before the limitation period of the agreement even came to an end, India sent its forces to acquire the state.
Similarly, there was no such nationalistic ideology that determined the choice of states to join either side. Each state weighed its benefits and losses before picking a side. For instance, Jodhpur initially had an inclination towards joining Pakistan in the advent of a better quid pro quo. It was only when better terms were provided by India that the state agreed to join the dominion of India. Similarly, Bhopal and Travancore wanted to stay independent and join neither of the two countries, but only due to wavering circumstances and better terms of the agreement that they chose to pick up a side. So, the choice of such decisions was clearly not ex gratia. It was what, in today’s time, we call a contract. Similar was the situation in Kashmir, where an agreement was signed and the basic principle of contract law in terms of rescission provided that in case of any breach of agreement, the parties would be restored to their original position as if no such contract had ever been signed. Would that mean that if the amendment constitutes a breach of contract in the eyes of the Hon’ble Supreme Court, the status of Kashmir would be restored to its novel state, i.e., the Independent State of Jammu and Kashmir?
The point in consideration is that if, in originality, everything is initiated as a contract between two independent territories, the instrument of accession being a treaty between the two states, can its breach by one result in something that most of us are not ready to assimilate? Hence, if proved constitutionally invalid, would the Hon’ble Court go further to decide on the status of the contract? But then again, how would it be nationalistic? Be that as it may, the plight of people is of utmost significance, and irrespective of the status of a piece of land on earth, it is the basic human rights that prevail above all. How this amendment has affected the lives of people in Jammu and Kashmir needs to be considered, and if the territorial aspect is kept aside along with the political manoeuvres that the world resorts to, the least we can do is restore the nature of life of the affected people and compensate them for the losses that they suffered during this tussle.
References
- https://blogs.loc.gov/law/2019/10/falqs-article-370-and-the-removal-of-jammu-and-kashmirs-specialstatus/
- Life in Kashmir after Article 370 | ORF (orfonline.org)
- Ministry of Law and Justice, The Constitution (Application to Jammu and Kashmir) Order, 2019, C.O. 272 (Notified on August 5, 2019)
- https://www.bloombergquint.com/opinion/the-article-370-amendments-key-legal-issues
- https://blogs.cuit.columbia.edu/rightsviews/2019/12/11/erosion-of-the-right-to-freedom-in-kashmir-how-indiaviolated-established-principles-of-constitutional-and-international-law/
- https://www.theleaflet.in/is-the-blanket-ban-on-internet-restrictions-aninessential-order-in-jammu-kashmir/#
- https://www.legislation.gov.uk/ukpga/1947/30/pdfs/ukpga_19470030_en.pdf
- https://www.thestatesman.com/india/independence-day-1947-challenge-accession-princely-states-1502673137.html
- Government brings Resolution to Repeal Article 370 of the Constitution (pib.gov.in)
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