Abrogation of Article 370 has to pass fiery legal test
Yes, it is a political decision. Bharatiya Janata Party has always claimed to be a party with a difference. And scrapping Art.370 had a permanent place in their manifesto. They never had the Parliamentary majority they were craving for. Let it be understood that when Art.370 was introduced into the Constitution, it was a political decision. The heated debate that was generated in 1948 in the Constituent Assembly as tucked away reveals. The cleavage in views was purely political. It happened to have a constitutional veneer because they were debating for its inclusion or not. That is all.
All those who are crying foul and alleging a murder of democracy and walked out of the Rajya Sabha as the Home Minister Amit Shah moved the bill to bifurcate the State of Jammu & Kashmir into a Union Territory with legislature and Ladakh as one too, but without a legislature, have good company. Their walkout stands exposed, as it is against the unification of India. The principled walkout indulged in by the Pitamaha of the Indian Constitution Babasaheb Ambedkar when Art.306-A (as 370 was then) was moved, was for One India, One Constitution and not the vivisection of Jammu Kashmir & Ladakh, in the bodies, hearts and minds of Indians.
How many of us have cared to find out that Dr. B.R. Ambedkar, was opposed to Article 306-A (now 370)? After hearing Sheikh Abdullah (who was referred to Babasaheb by Jawaharlal Nehru for constitutional recognition of special status) patiently - Dr. B.R. Ambedkar told him: “You want that India should defend Kashmir, India should develop Kashmir and Kashmiris should have equal rights as the citizens of India but you do not want India and any citizen of India to have any rights in Kashmir. I am the Law Minister of India. I cannot betray the interest of my country.” Ambedkar stood tall and his ground as uncompromising, in refusing to oblige Nehru, who had a soft corner for Sheikh Abdullah.
It was then Nehru approached N.Gopalasamy Ayyangar, who was then Head of the Emergency Administration in the State of Jammu & Kashmir, to draft a clause providing for special status to the State. And more importantly requested Ayyangar to 'somehow pacify Sardar Vallabhai Patel as Ambedkar's sway was only over himself and law”. To the nation's everlasting regret, till August 5, 2019, strongman Sardar yielded to Nehru's pleas and used his 'sway over the Constituent Assembly members' to get the Art.306-A incorporated. Alas, when the provision was ratified by the Constituent Assembly, the father of our Constitution and then Law Minister Ambedkar was absent. While 564 Princely States consented to join the Indian Union without any caveats, Kashmir was granted special status and a separate Constituent Assembly and Constitution too.
This in simplistic terms could be the encapsulated history of Art.370 and Art.35A which is a branch of it and therefore does not have any independent existence of its own. Jawaharlal Nehru through N Gopalasamy Ayyangar promised Sheikh Abdullah that Art.370 would be a temporary or transient provision. The Constitutional provision carried it in bold language. Most importantly, Art.370 was complained of by most Constituent Assembly members as 'alienating Kashmiris from Indians' and none other than Babasaheb Ambedkar sold that argument. He, as Law Minister at that time, refused to concede special status for Jammu & Kashmir, because they cannot concede Federal supremacy on foreign affairs, defence and communications alone.
Ambedkar said, “Just as Kashmiris were entitled to all rights as Indians, over all of India, rest of Indians too had all such rights over Jammu & Kashmir”. So, the political argument over the Modi 2.0 Presidential Notification is lost by the opponents. Art.370 was never put in place to stay. It was to be there as a transient phase. A principled political logic commends its departure.
Of course, the opposition could cry foul that Ramnath Kovind /Modi/Shah combine has played a dangerous game, keeping the nation in the dark and whole of Jammu & Kashmir under curfew and political opponents locked up in house arrest. There is no ventilation for expression of dissent and the atmosphere was stifling. The opposition can even accuse the ruling dispensation of duplicity in calling for an All Party meeting, after the demise of Art.370 had been perpetrated as a fait accompli. That is legitimate political opposition and it would be for the NDA to justify their methodology.
Be that as it may, what of the Constitutional angle? To a keen student of constitutional niceties, it is evident that the Modi Government has taken a huge gamble in taking the Notification route. They have relied upon the absence of Legislative Assembly and the Governor of the State being at the helm now. President has recognised the Sadr-i-Riyasat (Governor) as the Government of the State, which is constitutionally permissible, but 'on the recommendation of the Legislative Assembly”.
Thus far, no difficulty for the Modi Government to stand up to any constitutional challenge to the Presidential Notification, which is bound to come. While the Union would rely on Art.370 (3) reading “(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative….” the constitutional clamour will come from “Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.” Pregnant with meaning.
On reading it, it is clear that Constitution contemplates “Constituent Assembly' in the Proviso, different from “Legislative Assembly” elsewhere in the provision. There is no Constituent Assembly now in place. After the provisions of the Indian Constitution were approved by the then Constituent Assembly of Jammu & Kashmir, without abrogating Art.370, which it could have, the Constituent Assembly got dissolved. Would this then mean that Art.370 which was intended to be a temporary provision had become a permanent one? And on the dissolution of the Constituent Assembly of J&K, no such Presidential Notification could scrap Art.370 without the concurrence of Constituent Assembly which was not there?
In the Sarfaesi case (2017) Supreme Court had suggested that by passage of time and the dissolution of Constituent Assembly of J& K, Art.370 may have taken a permanent lease in the mother of all laws. That surely would be tested by a Constitution bench now, as India expects. It would be a mouth watering prospect and hopefully a peaceful India would confront it.
The Constituent Assembly debates are silent on the distinction between the Constituent Assembly and Legislative Assembly in the context of Art.306-A (now 370)? They only debated whether 'special status' ought to be given or not. Majority were against it as the debates reveal. But Sardar Patel's moral and ethical whip helped the Nehruvian blunder.
Sardar Patel is recorded to have said - as found in V. Shankar's (Nehru's Secretary at that time) Diary, 'Jawahar Royega' - “Jawahar will cry. Now, as India celebrates the integration of J&K into rest of India, would the constitutional conundrum play spoil sport before the Supreme Court in a sure to be fiery challenge?
(The author is practising advocate in the Madras High Court)
