A Himalayan wrong has been righted by a brilliant stroke of the fearless Modi government that dared to think the unthinkable: cut Kashmir’s Gordian Knot at one fell swoop that bound the poor minority under unbearable misery
Article 370 of the Constitution of India gave Special Rights and Privileges to the state of Jammu and Kashmir but was enacted primarily for the benefit of the Kashmir valley. This provision while being introduced, was objected to strenuously by the architect of our Constitution Dr. B.R. Ambedkar who said that:
“You wish India should protect your borders, it should build roads in your area, it should supply you food grains, and Kashmir should get equal status as India. But the Government of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal would be a treacherous thing against the interests of India and I, as the Law Minister of India, will never do it.”
Even as the inception was opposed by Dr. BR Ambedkar and other nationalists, it was still sneaked into the Constitution at the instance of our First Prime Minster Jawaharlal Nehru. But due to the stiff opposition of the constituent assembly, it was decided to be a temporary measure and this was indicated clearly in the wording of Article 370 itself as it was titled “Temporary Provision, Transitional and Special Provisions”.
But unfortunately instead of abolishing Article 370, Nehru Government made it stronger by bringing The Constitution (Application to Jammu and Kashmir) Order of 1954, after the 1952 Delhi Agreement signed between Jawaharlal Nehru and Shiekh Abdulla, the then Prime Minister of Jammu and Kashmir. This Presidential order brought in Article 35A, which created two classes of citizens in J&K, Permanent Residents and others. The state legislature had the power to define who these permanent residents will be and the others had to live with discrimination and inferior rights.
The Article 35A was enacted by the Presidential Order of 1954, under Article 370 of the Constitution, without being tabled, discussed or voted upon in parliament. Our Constitution has a specific procedure for making amendments to itself, that procedure is given in Article 368 of the Constitution but it was bypassed by Nehru Government while enacting Art 35A. This bypassing was done as the Government knew that no right-thinking parliamentarian can vote in favor of a provision which essentially creates a special class in J&K to make all others as inferior, having secondary rights only.
Legally, the government had power to abolish Article 370 & 35A, which it has exercised within the constitutional norms and even on broader considerations, which a constitutional court considers, the decision of Government is sound and unlikely to be quashed by courts
This situation existed till the Government led by PM Modi scrapped Article 370 and 35A on August 6, 2019. Over the years there had been persistent opposition to the abolition of Article 370 and later 35[A] by vested interests who favoured separatism, appeasement and “aazadi” for Kashmir, they using their ecosystem and control of media had made the case that the state of J&K would cease to be part of India, upon abolition of Art 370. This is absolute misinformation, false and without any legal basis. The State of J&K became a part of India by signing the Instrument of Accession on 26 October 1947 whereas Article 370 came into operation on November 17, 1952 and 35[A] came by Presidential Order in 1954. Therefore, the merger already happened through the Instrument of Accession and these events of Article 370 and 35[A] were years post the merger and have no bearing whatsoever on the merger with India which is irrevocable and permanent.
There would be legal challenges to the steps taken by Government in abolition of Art 370 (in effect) and 35A by those vested interests, who benefitted from these Articles and laws made under them. I will explain how the legal challenges are unlikely to succeed.
Let us first examine the case of Art 35A. As explained above, it was brought in by a presidential order in 1954, which introduced Article 35A which was to be read after Article 35 of the Constitution of India. This Presidential Order was never placed on the floor of the Parliament, was never debated upon, was never voted upon and the procedure prescribed for amending the Constitution under Article 368 was not followed before introducing article 35[A]. It was done by unilateral action of the Government in power in 1954.
Since, the Article 35[A] was introduced by executive action by the Nehru government then in power, it is needless to say that it can be removed by the same procedure by the Modi Government which is in power today, because if it was legal for an elected Government to introduce Art 35A, without following procedure of constitutional amendment, then necessarily the same power is available to the Government of the day to issue a new Presidential Order to amend, modify or replace the 1954 order.
This is what has been done by the Modi Government by the new Presidential Order in 2019 which by replacing and supplementing the Order of 1954 has legally abolished Article 35A.
Article 370 since its inception was a temporary provision and had method to terminate it, given in the Article itself. Art 370 (3) states that-
“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.”
That gave power to the President to abolish Article 370 after concurrence of the State Constituent Assembly. In law, once the state assembly ceases to exist, its powers are transferred to the State Legislature, like the framers of the Constitution drafted the Constitution but all amendments to it are carried out by the Parliament which is a body succeeding the Constituent Assembly of the Center same way the State Assembly succeeds the Constituent Assembly of the state and has the power to give permission and concurrence to the President to abolish Article 370.
Now the State Legislature in a Presidential Rule is repealed by the Governor and the Governor discharges the functions of the State Legislature. Thus, the Governor is fully competent to give sanction and to give concurrence to the President and the President acting on this concurrence can abolish Article 370 which he was in right to do so.
This position existed implicitly, but has been made explicit by The Presidential Order of 2019 which has amended the Article 367 of the Constitution and has inserted four sub-clauses which clarifies that the references made to ‘state government’ or ‘sadar-i-riyasat’ will be construed as reference made to the Governor of the State
Further our Constitutional Courts have always taken the broader perspective and been in favor of applying our fundamental rights in expansive way in giving meaning to Article 20, 19, 21, 14 etc. of the Constitution of India, because they have always held that the Constitution is a dynamic document and more and more Rights have to be given to citizens. Article 370 and 35[A] prevented the full scope of fundamental rights from benefitting all residents of J&K. It created two separate classes of citizens and in that gender justice was not done to a women who married a person who was from outside Jammu and Kashmir, as she losses all her property rights, Along with that, her children did not get any property rights and this was blatant gender discrimination prevalent only because of Article 370 and 35[A]. Further Valmiki community, which has been working there as manual scavengers have never got any rights there because they were never considered a permanent resident even though they stayed for generations yet were only eligible for post of sweeper, same was position of refugees and Gorkhas, who despite living for generations are not considered permanent residents and are not given full rights.
All these distortions were happening in J&K because Article 370, 35A and laws framed under it allowed the same. Now that it has been removed and fundamental rights have come to people the Courts would be conscience of the fact that Fundamental Rights protections have to be given to all citizens and fetters on it should not be imposed.
Not only this, the Power of the Government to issue Presidential Order(s) was always recognized and various Presidential Order(s) were issued from time to time including orders in which Head of State was replaced by Governor, Article 365 was applied despite the State’s Constitution already having provisions of the Governor’s Rule. On November 24, 1966, the Governor replaced the Sardar-i-Riyasat after the amendment of the State’s Constitution, which was in violation of Section 147 of the same, despite it being immune to amendments.
Courts in pervious judgments have already held that the power of the President to modify under article 370 exists. This has been done in the case of Sampat Prakash v. State of Jammu and Kashmir, wherein it upheld the Centre’s power to make orders despite the fact that the State’s Constituent Assembly ceased to exist.
Further, Courts are also conscience of certain issues, which they are very circumspect to enter because of National Security angles and implications. This situation involves a border area with influences coming from china, Pakistan and is complete National Security and policy and issue squarely in the Legislative domain where the Courts would be reluctant to enter.
Thus legally the government had power to abolish Art 370 & 35A, which it has exercised within the constitutional norms and even on broader considerations which a constitutional court considers, the decision of Government is sound and unlikely to be quashed by courts. There is an ancient story of “Gordian knot,”and Alexander the Great. An oracle had declared that any man who could unravel its elaborate knots was destined to become ruler of all of Asia. None could do it due to intricate and complex nature of knot, till Alexander one day just drew his sword and cut the knot in half with a single stroke.
This is exactly what PM Modi has done. Article 370 and special rights of Jammu and Kashmir were tied up in a Gordian knot by those who have always furthered the separatist agenda but PM Modi by using the law has cut the Knot and once it is cut it cannot be undone and will not be undone.
(The writer an is advocate in Supreme Court of India)