The Govt Didn't Actually Scrap Article 370. A Law Professor Explains What Really Happened

The article was originally published in Huffington Post on Monday, written by Nikhila Henry

The division of Jammu and Kashmir into two union territories is the most worrying part of Monday's developments, said Prof. Faizan Mustafa, a senior law teacher and jurist of constitutional law. This bifurcation has deprived J&K of even the status of an ordinary state, said Mustafa, who is also the Vice Chancellor of Nalsar University of Law, Hyderabad.

"The problem is that Kashmir will now be ruled from Delhi. This is not good for federalism. Federalism is the basic structure of the Constitution," he told HuffPost India in an interview.

The presidential order, Mustafa clarified, does not scrap Article 370 but extends all its provisions to Jammu and Kashmir, thereby rendering void Article 35A, which gave special status to the state. This order is "constitutionally suspect" and can be challenged in the Supreme Court, but it's unlikely that the country's highest judicial body will intervene, he said. Edited excerpts from an interview:

What does the Constitution (Application to Jammu and Kashmir) order, 2019, issued by President Ram Nath Kovind mean for the state of Jammu and Kashmir?

It is being said that Article 370 of the Constitution is scrapped. The Presidential order does not scrap Article 370, which guarantees special status to Jammu and Kashmir. The Presidential order has invoked Article 370 to extend the whole or all provisions of Indian Constitution to the state of Jammu and Kashmir. As the order now extends Part 3 of the Constitution, which deals with fundamental rights to the state of Jammu and Kashmir, Article 35 A, which was part of Article 370, now becomes void. The Article had given the state exemption from fundamental rights earlier. It was under the provisions of Article 35A and the exemptions that it brought that Jammu and Kashmir had special rights (right to decide permanent residents and their right to ownership of immovable assets, special rights in government jobs, scholarships etc). When the order extended the fundamental rights to the state, the special status which gave the state autonomy became nonexistent.

Why is the order being questioned? Does it violate any existing provisions?

Article 370 of the Constitution is based on an Instrument of Accession (IoA) signed by Maharaja of Kashmir, Raja Hari Singh. This instrument assured autonomy to Jammu and Kashmir by agreeing that the state could have its own constitution and Constituent Assembly.

As per this IoA, Indian Union has to take concurrence of Kashmir's Constituent Assembly to extend provisions of the Constitution to the State. Based on this, if we read Article 370, clause (3), it specifically states that the Article can be suspended and can cease to operate only through a resolution from the Constituent Assembly of Jammu and Kashmir.

When the Constituent Assembly is not functional (it is currently dissolved), the concurrence of its successor body, the Legislative Assembly, should have been taken. Legislative Assembly of J&K is the successor body of its Constituent Assembly, just like the Parliament is the successor body of India's Constituent Assembly. A resolution withdrawing the special status should have ideally come from the State's Legislative Assembly. These democratic and Constitutional means was not adopted.

It should have been adopted because it would have been in tune with commitment that was extended to the people of Kashmir and Raja Hari Singh. Kashmir was a country by itself under the Indian independence act. When two countries draft an agreement it should ideally honour the terms of that agreement.

Jammu and Kashmir is now divided into two Union territories. What does that mean to the state which until today had special status?

This is more worrisome than the revocation of special status. If Jammu and Kashmir had remained like any other state, it would still have been fine. The division has deprived Jammu and Kashmir of even the status of an ordinary state. Now J&K has a lower status because it was reduced to a union territory. This is unprecedented as far as I know. Usually, union territories are upgraded to form States.

By dividing the State into Union Territories, the Centre has deprived Jammu and Kashmir of the autonomy which is available to other states under provisions of the Constitution. Like Delhi or Puducherry, Kashmir will now be under the control of a Lieutenant Governor and it will be a centrally administered territory.

Many Kashmiri political leaders have said that the people of Kashmir have been betrayed by this move. Have the people of Kashmir become more vulnerable now?

It is not a question of vulnerability. The problem is that Kashmir will now be ruled from Delhi. This is not good for federalism. Federalism is the basic structure of the Constitution.

In a federal polity, all states should not be treated in the same manner. Under federalism, all states must have autonomy and Kashmir has a 70-year-old history of autonomy. Giving more autonomy to the states do not weaken the centre.

I will go by the old saying, "If we risk federalism then it gives birth to secessionist sentiment. If we strengthen federalism then the country remains united and integrated".

Was this move by the centre a sudden development or was it in the offing? In 2015, a PIL was filed in the Supreme Court challenging Article 35A.

Bharatiya Janata Party and the Jan Sangh has been maintaining that Kashmir should not have special status. They have been maintaining that special status to Kashmir was only a 'temporary provision'. It was not a temporary provision. I say that it was not a temporary provision because the Supreme Court of India on several occasions made the same observation. The Supreme Court in a number of cases had said that even though the word "temporary" is used in Article 370, the provision is not temporary. Forty-five presidential orders were issued under article 370.

When NDA government was formed with Atal Bihari Vajpayee as the Prime Minister, BJP was clear that they could not insist on scrapping of special status as it was a contentious issue. With Narendra Modi as Prime Minister and the massive majority which BJP won in 2019 election, the party realized that the time was right to push this.

It should be remembered that even in the past, Article 370 has been misused. But the Article over a period of time became a tunnel between the Centre and the State. Through this tunnel, almost all provisions of the Indian Constitution were extended to Jammu and Kashmir. But the little autonomy the State had is now taken away.

Can the Presidential order and the division of Jammu and Kashmir into Union Territories be challenged?

The Presidential order can be challenged in the Supreme Court. But Constitutional questions generally get referred to the Constitutional benches and they take 2-3 years to decide. I do not foresee a quick Constitutional remedy of the Supreme Court staying the Presidential order. I am not very hopeful of it.

It is constitutionally suspect. But going by the way the Court examines an issue, I do not think the Court is going to intervene.

I am inclined to believe that the court may not interfere.

Source: Huffington Post