The Permanence misconception

The Permanence misconception

Article 370

Activists and supporters of Left wing parties hold placards during a demonstration to protest against the presidential decree abolishing Article 370 of the constitution giving special autonomy to Muslim-majority Kashmir, in New Delhi on August 5, 2019. AF

The Modi government’s decision, now law, to scrap the special status of the state of Jammu and Kashmir under Article 370 and further to split the state into two Union territories – Jammu & Kashmir and Ladakh – have raised questions over the constitutionality of these changes.

Mainly, whether after the dissolution of the Constituent Assembly of Jammu and Kashmir in 1956, the power of abrogation of Article 370 vanished? Article 370 mandates the concurrence of the erstwhile Constituent Assembly of J&K, and nowhere is it provided as to how to recall a dissolved Constituent Assembly. The intention of the drafters perhaps was to provide the state of J&K a special status till the Constituent Assembly of J&K was in existence. The Instrument of Accession’s relevance was confined to joining the Dominion of India that was going to take shape as a Sovereign Republic on January 26, 1950. But, the continuation of this transitory provision -- Article 370 -- even after the dissolution of the Constituent Assembly of J&K appears to have been a political and electoral device only. Hence, the argument that after the dissolution of the Constituent Assembly in 1956, the power of abrogation of Article 370 vanished is unjustifiable.

Can any provision of the Constitution be permanent? A similar argument was advanced in the infamous I C Golaknath case (1967), where it was contended that fundamental rights are permanent in nature and cannot be abrogated by Parliament even in exercise of its constituent power under Article 368. The only method to do so, if it is desired, is that the State must convoke another Constituent Assembly by exercising its residuary power under Article 248 read with item 97 of List 1 of Schedule 7, and then that Assembly can abridge or take away the fundamental rights. Any other method must be regarded as revolutionary, it was argued. However, this view was discarded by a 13-judge bench in the Kesavananda Bharati case (1973) by saying that any part of the Constitution can be amended either by variation, addition or repeal, except the very essence of the Constitution – its basic features.

The Constitution is an organic statute. It grows by its own inherent force and therefore constitutional provisions are couched in elastic terms. Any Constitution, howsoever rigid it may be, has a provision for an amending power, along with procedure, so long as no vacuum is left in the governance of the country. Jawaharlal Nehru time and again emphasised that while the Constitution was meant to be as solid and as permanent a structure as it could be, nevertheless there was no permanence in the Constitution and there should be a certain flexibility; otherwise it would stop the nation’s growth. A similar sentiment was expressed by B R Ambedkar while dealing with the draft Article 25, corresponding to the present Article 32 of the Constitution. Therefore, when the most sacrosanct provisions of the Constitution can be changed, there cannot be any rationale for Article 370 to claim permanent immunity. It was crafted to deal with an extraordinary situation and with a marginal note that it is a transient provision. This should have been revoked once the extraordinary situation ceased to exist.

The Supreme Court bench of Justices Adarsh K Goel and R F Nariman had observed that Article 370, which limits the legislative powers of the Union government vis-à-vis J&K had acquired permanent status through years of existence. But the marginal note of Article 370 makes it clear that this was a temporary provision and it was only the lack of political will that allowed it to endure. To be sure, a marginal note cannot affect the construction of the language used in the body of the Article, but if the content is uncertain and ambiguous -- as in the case of Article 370 -- the marginal note may be referred to [Western India Theatres Ltd. vs Municipal Corporation Puna AIR 1959 SC 586].   

Questions were also raised about the special status of J&K vis-à-vis that of other states. There are 10 other states that have been conferred special status under Articles 371, 371-A to 371-H, and 371-J of the Constitution. However, these states do not enjoy the  same status as J&K. The intention behind these provisions was to safeguard the interest and aspirations of certain backward regions or to protect and promote cultural and economic interests of the tribal people or to deal with the disturbed law and order in some parts. But these states are integral parts of the constitutional framework, unlike the state of J&K.

The power of creating a state or a Union Territory has been vested in the Union Parliament (Article 3 of the Constitution), which extends to increasing or diminishing the area of any state and altering the boundaries or name of any state. However, two checks constrain Parliament’s power to enact legislation for the formation of new states. Firstly, a bill calling for formation of new states may be introduced in either House of Parliament only on the recommendation of the President. Secondly, such a bill must be referred by the President to the concerned state legislature for expressing its views to Parliament if it contains provisions which affect the areas, boundaries or name of that state. The Jammu and Kashmir (Reorganisation) Bill, 2019, which bifurcates the state into two UTs – J&K with a legislature and Ladakh without legislature, which was passed by both Houses of Parliament, required the consent of the government of the state, but J&K is under Governor’s rule, with no state Assembly. This may be a legal glitch when the matter is scrutinized by the Supreme Court. However, courts are also expected to, and indeed should, interpret, considering the expanding needs of society.

However, converting J&K into a UT is nothing but an act of political immorality. It will not only give the central government more control over policymaking within J&K, but also give it the power to subvert the voice of the people of the state at any point. The intention of the government appears to be to make J&K a ‘parasitically dependent’ department of the central government, which would have no control over effective political decision-making. By making the Lt Governor the sole and final administrator, the Union government has undermined democratic ethos and sentiments, which constitute the basic structure of the Constitution.

(The writer is Associate Professor of Law and Registrar, National Law University, Odisha)

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