Opinion Op Ed 12 Aug 2019 Centre is on sound l ...
The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at knbhat1@gmail.com

Centre is on sound legal footing

Published Aug 12, 2019, 4:59 am IST
Updated Aug 12, 2019, 5:02 am IST
The Constitution guarantees citizens the right to freely move throughout the territory of India and to settle down in any part of it.
A vendor sells balloons at a street in Srinagar after curfew was relaxed ahead of Id on Sunday, but there appear to be few takers. (Photo: DC)
 A vendor sells balloons at a street in Srinagar after curfew was relaxed ahead of Id on Sunday, but there appear to be few takers. (Photo: DC)

Article 370 of our Constitution was not “removed”, “abrogated”, “scrapped” “deleted” by the presidential notification of August 5, 2019, contrary to what was reported in sections of the media. All that the notification did was to supersede the presidential order of 1954, which brought in Article 35A, among other things. Its formal abrogation was done at the end of the following day. The lag was inevitable due to the need to get extricated from the legal trap of Article 370 that India was led in to.

The normal rule is that every subject of a country residing therein is bound by the Constitution and the laws thereof — no one has the option to opt out. None of the other 560 or so erstwhile maharajas either demanded or was granted such a privilege — but J&K had demanded a special status and was granted one. That gift was Article 370.

 

Article 306A — later renumbered as 370 — was introduced at a stage when the stupendous job of drafting the country’s Constitution was almost at its fag end (October 17,1949). It contained no specific assurances to J&K — hence in the Constituent Assembly there was hardly any discussion on it. It was like a blank cheque authorising the President of India (which means the Central government) to notify which provisions of our Constitution will apply and with what modifications to one of the states specified in the First Schedule to the Constitution — and whose residents are indisputably “citizens of India”.

Dr B.R. Ambedkar had strongly opposed it, and so he abstained from the day’s proceedings.

Remember — while our Constitution could be altered only through a tedious process of amendment prescribed by the Constitution itself — Article 370 authorised the Central government by executive order to alter or undo any constitutional provision in its application to J&K.

The Constitution of India was by and large thus not operative in J&K. After negotiations between the executives of India and of the state, a list of the provisions of the Constitution that would apply to the state and with what changes was prepared; and that was published as the 1954 Presidential Order, By that executive order Article 35A was added to the Indian Constitution.

The Constitution guarantees citizens the right to freely move throughout the territory of India and to settle down in any part of it. This right was denied to Indians in J&K — courtesy Article 35A.

Thus Article 370 by itself did no harm — it only permitted harmful decisions to be taken by the executive — headed in 1954 by all-powerful Prime Minister Jawaharlal Nehru (Sardar Vallabhbhai Patel had died in 1950). On August 5 this year, all that was done in the name of President Ram Nath Kovind was to annul the 1954 order by using the same Article 370(1) that was used under the name of President Rajendra Prasad.

Thus Article 370 was not dead on August 5 — it was fully alive and had still some job — to undo the initial error of 1949. Clause (3) of that provision permitted the President to order that “370 will cease to be operative” — wholly or partially.

The normal route for deleting any constitutional provision is through an amendment under Article 368; that requires the support of a special two-thirds majority in both Houses of Parliament and may invite other complications. The second route available in the case of Article 370 was through an order under clause (3), as stated earlier.

The question is — why was the 370(3) route not adopted on August 5 itself, instead of the half-measure? There were some technical difficulties like the need to have the backing of a recommendation of the Constituent Assembly of J&K (since disbanded) as a pre-condition. The August 5 order has remedied the situation by substituting “Constituent Assembly” with “Legislative Assembly”. As President’s Rule is in force in the state, Parliament takes over the Assembly’s role. Parliament recommended the deletion of Article 370, after which the August 6 presidential order was issued. With that, Article 370 “ceased to operate” — in simple terms it was “declared dead”.

The bifurcation of J&K had not much to do with the deletion of Article 370 — except that the August 5 order made the whole of the Indian Constitution as it is applicable to the state. But for this Articles 2, 3 and 4 of the Constitution that empower Parliament to reorganise states would not have been applicable to Jammu and Kashmir.

A lot remains to be done for fully integrating the state with the rest of India and for a smooth transition. Regulating the rush to acquire land and for the setting up of businesses there must be a top priority. J&K so far was just hiding behind the laws relating to permanent residents.

Every Union territory is governed under laws made by Parliament — these laws form the constitution of the UT. Legislators will surely note that the requirements of Ladakh will be different from those of J&K. The temptation to resort to the “cut and paste” technique of drafting laws will lead to disaster. The examples of states like Himachal Pradesh on the restrictions on the sale and purchase of land, and experience from the National Capital Territory of Delhi or Puducherry will be of help in order to avoid conflicts and to achieve a smooth running of the administration.

The Government of India can hereafter have no alibi for any failure to deliver what has been promised. Their actions alone will decide whether August 5 and 6 should be celebrated or rued.

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