The dust is still flying around on Article 370 and the Narendra Modi government’s actions in Jammu and Kashmir. During the Lok Sabha debate on the subject, others spoke of our serious doubts about the constitutionality of the draft Bill – Jammu and Kashmir Reorganisation Bill 2019 – and the resolution abolishing Article 370. The Modi government made its predictable counter-arguments. Since I am not a lawyer, I decided to leave the debate to the courts and confined myself, in the limited time available, to the dangerous consequences of the government’s actions – to tourism, to the economy, to national security and to India’s international standing.
But it has become clear in the course of the week that the public, which has largely applauded the outcome, has been willfully misled about the process – and that the Modi government has successfully elided the entire issue of its own legal sleight of hand to bring about its objectives. By focusing on its goal of ending “one country, two Constitutions, two flags” (for which it won broad support) the government has danced around its legislative tricks and chicanery in playing fast and loose with the Constitution and with the rule of law.
Basic facts about Article 370
A few basic facts: Article 370 was conceived as a temporary measure until the Constituent Assembly of Jammu and Kashmir was formed, and it was left to the Constituent Assembly of J&K to determine the constitutional relationship between India and the state. It is because the primacy in such matters lies with the people of J&K, that Article 370 (3) states that Article 370 can only cease to exist through a Presidential order after obtaining the recommendation of the Constituent Assembly of J&K to end the operation of the article.
The Constituent Assembly of J&K enacted the Constitution of J&K, whose Article 147(c) places a bar on the legislative assembly from affecting the constitutional relationship with India, as provided in the Constitution of India. So, they accepted Article 370 as the permanent constitutional relationship between the Union and the state, an interpretation upheld in successive Supreme Court judgments.
The permission of the people of J&K through an elected body is a condition precedent to interfere with its special status under Article 370. Clause 3 of Article 370 makes it clear that you cannot amend the article without the recommendation of the Constituent Assembly.
How Modi govt bypassed legalities
The Modi government has tried to be clever, by amending Article 367 to indirectly amend Article 370, saying that the Constituent Assembly shall mean the legislative assembly. What was the purpose of this amendment? Because it can then argue that due to the operation of President’s rule in the state, the role of the legislative assembly has devolved upon Parliament in New Delhi – which can give the recommendation instead of the legislative assembly, because the assembly has been dissolved.
However, the government has completely ignored the well-established position in law that whatever you cannot do directly, you cannot achieve indirectly. You do not have the right to amend Article 370 without obtaining the consent of the people; you cannot indirectly amend it in the absence of their consent.
The Supreme Court has recognised that while something can be formally legal, the substance of it can be a fraud on the Constitution. It is entirely possible to argue from this set of facts that this entire exercise is a fraud on the Constitution of India and a betrayal of the promise our founders made to the people of J&K.
There is another important point to be noted here. The Modi government also claims that the concurrence of the government of the state of Jammu and Kashmir has been received. However, Jammu and Kashmir has been under President’s rule for many months now. So, the consent of the state is that of the governor, who is in fact the appointee and representative of the Centre. In other words, the Centre has taken its own consent to carry out its agenda. The consent of Kashmiris is irrelevant to the government.
It is well known that President’s rule is a temporary mechanism, meant for situations in which there is a breakdown of constitutional machinery and meant to cover exigencies that may arise during the period before fresh elections are held and a new assembly constituted. Yet, permanent measures are now being taken under the cover of President’s rule – in the absence of a state government and a legislative assembly, New Delhi is using its powers to split the state and downgrade it into a union territory. It has completely ignored the letter and spirit of Article 3, which requires the government to consult the state assembly on such matters. Again, the claim is that since Parliament is, for all practical purposes, “the legislature”, the legislature is being consulted. But the spirit of Article 3 was clearly intended to involve consultation with the elected legislature of J&K, who represent the people of that state. The government might yet be able to persuade the Supreme Court that they have adhered to the letter of the law, but its action has betrayed the spirit of the Constitution.
An ominous move
In short, the Modi government has changed the basic constitutional relationship of the people of Jammu and Kashmir to the Republic of India without consulting them or their elected representatives. This blithe disregard for Article 370(3) and Article 3 is a breathtaking betrayal of our democracy and nothing short of legislative authoritarianism.
By claiming that the concurrence of the state of Jammu and Kashmir has been obtained, when it is under President’s rule; by translating “State” to mean the Governor they themselves have appointed; and by interpreting “legislature” to mean Parliament in New Delhi rather than the body elected to represent the views of the people of Jammu and Kashmir, our government has acted in utter contempt of the people of the state and of the value of democratic decency that is meant to animate our political culture. And the general public, in careless disregard of all this, has applauded our “bold” and “decisive” Prime Minister Modi for his actions. The precedent it sets for our democracy is ominous and worrying. Let no one say we have not been warned.
The author is a Member of Parliament for Thiruvananthapuram and former MoS for External Affairs and HRD. He served the UN as an administrator and peacekeeper for three decades. He studied History at St. Stephen’s College, Delhi University and International Relations at Tufts University. Tharoor has authored 18 books, both fiction and non-fiction; his most recent book is The Paradoxical Prime Minister. Follow him on Twitter @ShashiTharoor. Views are personal.
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