Many scholars have questioned the constitutional validity of Narendra Modi government’s decision to scrap Article 370 that gives special status to Jammu & Kashmir. They have asked if Article 367 of the Constitution could be amended to include a new provision without constitutional amendment or if Article 370 could be scrapped only with the President’s consent and not that of the state assembly.
ThePrint asks: Will Modi govt move on Kashmir’s Article 370 stand the scrutiny of Supreme Court?
Supreme Court knows scrapping of Article 370 is a matter of national security & will not intervene
Before we debate on whether the Modi government’s move to scrap Article 370 will stand the scrutiny of the Supreme Court, it is important to understand what changes the government has introduced.
First, it has scrapped the 1954 Presidential order on Article 35A and replaced it with a new one, thereby abolishing the article. Second, it has bifurcated the state and created two union territories, out of which Jammu and Kashmir will have elections as and when the situation permits, and Ladakh will not have elections. And third, while on paper Article 370 still stands, in actuality, it has been nullified.
Even if someone does challenge the abrogation of Article 370, I doubt the Supreme Court will entertain such a challenge because Article 370 was always supposed to be a temporary provision. Second, the government has abolished Article 35A in the same way it was introduced – by a presidential order. So, if the abolishment is not recognised, neither will its introduction be, by the same reason. And finally, the Supreme Court also knows that the scrapping of the provision is related to issues of national security and territory, and, therefore, will not intervene in the matter.
Even if Modi govt had repealed Article 370 as per procedure, it still would be a direct attack on the Constitution
Alok Prasanna Kumar
Senior Resident Fellow at Vidhi Centre for Legal Policy
The question of whether the manner of the repeal of Article 370 will withstand scrutiny in the Supreme Court is independent of the legal and constitutional correctness of the same.
Legally and constitutionally, the ‘repeal’ of Article 370 is of questionable validity. The Modi government has attempted to amend the Constitution without following the procedure laid down in Article 368. Even if it had repealed Article 370 following proper procedure, I’d still argue that it is a direct attack on the basic structure of the Constitution, specifically on federalism. Even though it has attacked only Jammu and Kashmir, the assertion of power is a direct assault on the idea of shared sovereignty between the Centre and the states.
However, I do not expect the Supreme Court to strike down the legal measures in this context. Thanks to the actions of recent and current CJIs, the Supreme Court has no credibility left to uphold the Constitution in the face of the government’s actions. It will find ways and means to justify the illegalities committed by the government. One only needs to see the majority opinions of the Supreme Court in ADM Jabalpur v Shiv Kant Shukla case to see the cowardice with which the court will approach any constitutional challenge to the ‘repeal’ of Article 370.
Modi government’s repeal of Article 370 is perfectly legal
B. V. Acharya
Former Chief Public Prosecutor
The Modi government’s repeal of Article 370 is perfectly legal. This is because everything has been done as per the law. In view of sub-article 3 of Article 370, which empowers the President to decide the limit of the jurisdiction of the Indian Constitution over the state, the abrogation has been issued.
Moreover, a separate bill has been introduced in Parliament. This bill, called the Jammu and Kashmir Reorganisation Bill, essentially bifurcates the state into two union territories—Jammu and Kashmir, and Ladakh. The former will have a legislative assembly, like Delhi and Pondicherry, and the latter will not.
If anyone does challenge this bill, it will not stand.
Of course, if it does go to the Supreme Court, it will agree to hear the matter. This is because it involves some substantial questions. However, in my opinion, the Supreme Court, in the end, will uphold the bill that essentially ends the special status given to Jammu and Kashmir.
Legally, Supreme Court should not stand by Modi govt’s decision to scrap Article 370
Fellow, Centre for Internet and Society
In the first case regarding Article 370 (Prem Nath Kaul v. State, 1959), the Supreme Court underscored the importance of the Jammu & Kashmir constituent assembly’s role. But in two other cases (Sampat Prakash v. State, 1968, and MM Damnoo v. State, 1972), it differed without even citing the 1959 case.
Some might argue that given the number of presidential orders passed under Article 370, starting with the Nehru government, there is little left to protect in the article. That’s partially true, but it is also true that Article 370 symbolises a contract between the state of Jammu & Kashmir and the Indian Union, which was negotiated as a condition of its accession to India. It doesn’t allow for the President to unilaterally abolish the article without the recommendation of the constituent assembly of the state. Monday’s presidential order will not stand judicial scrutiny. That’s why, despite the constant erosion of Article 370, it is still politically and legally unacceptable.
If this is allowed by the Supreme Court, then the federal nature of the country will cease to be, along with its democratic nature.
The way it has been carried out reeks of an authoritarian and undemocratic state action.
By Revathi Krishnan and Taran Deol