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Retired Judge of the Madras High Court K Chandru
Retired Judge of the Madras High Court K Chandru
Politicking

Article 370 Revoked: A Legal Viewpoint

Retired Justice of the Madras High Court K Chandru says the Union Government has committed “hara kiri”

Sandhya Ravishankar

Sandhya Ravishankar

After days of suspense and tension in Jammu and Kashmir, with large troop movements to the valley, the NDA government finally broke the news – Article 370 which gave Special Status to Kashmir was revoked by a Presidential order.

The Presidential order revoking Article 370
The Presidential order revoking Article 370

Addressing Parliament, Home Minister Amit Shah also introduced a Bill that would bifurcate Jammu and Kashmir with Ladakh becoming a Union Territory without a legislature and Jammu and Kashmir becoming another Union Territory, albeit with a legislature.

In the midst of the pandemonium in Parliament, there are a number of important legal and Constitutional questions to be considered. The Presidential order needs to stand legal scrutiny as it is more than reasonably clear that it will go to the courts.

Legal experts have pointed to a December 2016 judgement on the nature of Article 370 by a Supreme Court bench comprising Justices Kurian Joseph and Rohinton Fali Nariman. This judgement stated – “Despite the fact that it is, therefore, stated to be temporary in nature, sub- clause (3) of Article 370 makes it clear that this article shall cease to be operative only from such date as the President may by public notification declare. And this cannot be done under the proviso to Article 370 (3) unless there is a recommendation of the Constituent Assembly of the State so to do,” the judgement said.

Article 370 itself states the following: “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: 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.”

The conundrum is that the Constituent Assembly was not in vogue since the state was under President’s Rule. So can the President issue such an order without the Constituent Assembly of Jammu and Kashmir recommending the same?

And can an Article of the Indian Constitution be revoked by a Presidential order, without the two Houses of Parliament agreeing?

The legalese gets thicker and more intriguing as we delve into the problem. The Lede interviewed K Chandru, retired judge of the Madras High Court who did not agree with the NDA government’s move.

This is one viewpoint. The Lede will attempt to bring to the reader many more points of view in an effort to foster debate over this controversial act by the Union government.

The questions posed to Justice K Chandru and his views are below.

What, in your view will be the fallout of this step? Is this an historical mistake being corrected or is it a dangerous step?

Justice Chandru: Ever since President Trump offered to mediate between Pakistan and India on the question of Kashmir, the Government of India was acting feverishly and was up to something.

The day a huge contingent of the Indian Army was sent with an advisory to the tourists and pilgrims to get out of Srinagar and when all the leaders of political parties were kept in house arrest and the internet connections were pulled down, everyone became aware that the BJP government is going to abrogate Article 370 of the Constitution and is going to trifurcate J&K state on religious lines.

The idea of abrogation of Article 370 was on the cards long back and even during the Vajpayee government the trifurcation idea was mooted out. When leaders like Advani went to perform Sindhu Sadan in the Leh area, this was to reinforce that the undivided Kashmir was the first step towards achieving Akand Bharat.

The fact that the last seven decades J&K was ruled by the Indian Army, the strength of the army vis-à-vis the local police is on the ratio of 10:1, one is certain that Kashmir does not enjoy any special status except that it has the reputation of being ruled by the Indian Armed Forces.

The present move is undoubtedly a dangerous move and it has international implications.

What are the likely legal complications that could arise from this? It is reasonably certain that this will go to the courts.

Justice Chandru: It was a joke that under Article 370 itself they were performing “hara-kiri” of the very special provision relating to J&K. When the Article requires the approval of the Constituent of Assembly of Kashmir for applying the laws made by the Indian Parliament by imposing President’s Rule and taking over the powers of that assembly and thereafter applying the laws without distinction to that state is nothing but cunning treachery.

Apart from starting a long drawn legal battle, the retention of army in such large numbers (more than 7 million) is not good for the economy of this country especially when it is in a serious state of decay.

Would you explain to our readers the original rationale of Article 370 and its Constitutional relevance to J&K?

Justice Chandru: The intention of providing Article 370 long after the occupation of Srinagar valley by the Indian Army ostensibly at the invitation of the then Maharaja Hari Singh of Kashmir promptly brought UN intervention.

This more or less divided Kashmir into two parts - one part (the so called Azad Kashmir) under the control of Pakistan and the other part with India. Most countries, when they publish the map of India, show the Pakistan occupied portion as disputed territory while Indian maps show it as occupied Kashmir.

Huge expenditure on maintaining the military apparatus with its own consequential incidents of human rights violations in Kashmir and several commissions of enquiries finding the government guilty and the voting percentage continuously going down (in some constituencies less than 1% vote) one should have thought there will be some political solution.

Even the offer of the Pakistan Prime Minister for bilateral talks was spurned and UN intervention was avoided stating that it is a bilateral problem for which we are yet to find a solution. In order to assure the people of Kashmir who are substantially Muslims, a so-called autonomy was created by the insertion of Article 370 and later to maintain the identity, the insertion of Article 35A in the Constitution. But the real import of these two provisions was only observed more in their breach.

Puppet governments were installed from time to time and any small protest led to the dismissal of the government and continuing President’s Rule. During President’s Rule, the power of the J&K State Assembly vest with the President and thereby the present notification was issued as if the approval of the J&K State Assembly was obtained. In effect the President is having a two-in-one role and he will be guided by the cabinet advice which in turn means BJP’s politics into play.

A state has been turned into 2 Union Territories. Does this have a precedent? Would you explain the Constitutional background to this move?

Justice Chandru: For a long time, the BJP was pushing the idea of either trifurcating or bifurcating Kashmir on purely communal lines. Therefore it is no surprise they are making two Union Territories from out of a combined state of Jammu & Kashmir. With the brutal majority which they enjoy in the Parliament, it is easy for them to get legal sanction.

The applause which they got in Parliament is nothing but the Sudeten land assured by Hitler and majority of the Germans applauding him for the same. Democracy is based on consent. If even one group is a minority, yet the democratic polity requires a government by consent and not by armed excursion.

(The views expressed by the interviewee are his alone and not necessarily those of The Lede)