Article 370: Shots fired, shots missed

Jammu and Kashmir have been in the top trending terms making global headlines with the sudden revocation of Article 370, pulling the iron curtain it adorned since 1949. Numerous petitions have been filed before the Supreme Court criticising the diplomatic development so much so that Justice Gogoi, the present Chief Justice of India hinted towards visiting the valley.

In such times of political turbulence, creating waves in the geopolitical, regional and territorial dynamics of the State, almost every strata of the society had an opinion about it. This opinion was largely based on the inputs from news, social media and other forms of reporting.

For many, it was another trending topic to create memes and entertainment content while for some, it was a matter of nationalism and courage. In this whole exercise of decoding the highlighted Article 370, many chose to be lawyers, by taking sides to the situation, I would prefer to play the detective by lighting the candle from the bottom.

The politically charged situation that led to the inception of Article 370 in the Constitution of India originated due to the most influential factor of Indian politics — 'religion'.

When the rulers of the princely States were asked to accede to any one of the two dominions (i.e. India or Pakistan) by signing the 'Instrument of Accession', nobody could have imagined such a typical possibility as a third option to the situation i.e. conducting a Plebiscite to determine the fate of the State.

The fate of Jammu and Kashmir, a place attributed to be the 'Heaven on Earth' turned dark when Maharaja Hari Singh reserved his seat in the darkest places of hell, by maintaining a state of neutrality on the Instrument of Accession, 1947.

What could be tagged as the perfect political-oxymoron, the situation before Maharaja Hari Singh was nothing close to what other rulers had faced. Since Pakistan was a Muslim country, Maharaja Hari Singh being a Hindu ruler, feared for his life if acceded to merge his kingdom in the Dominion of Pakistan.

On the other hand, Dominion of India, although a country with no official religion, it chose to adopt democratic form of governance where political rulers would be elected by direct voting, hence Maharaja Hari Singh feared being thrown out of power since Jammu & Kashmir was a Muslim dominated State and he, a Hindu ruler. Being stuck in a 'cliff and fire' situation, Maharaja betted on self-interest over and above public-Interest, creating a political earthquake of statelessness and abyss for generations to suffer.

At the time of introducing Article 370 and framing the Constitution of Jammu & Kashmir, framers assumed a bona fide from both the parties to the dispute, leaving scope for only one possible solution i.e. the temporary status of Article 370 shall be revoked only after being approved by the government of Jammu & Kashmir represented through its Constituent Assembly.

However, in October 2015, the High Court of Jammu and Kashmir ruled that the Article 370 cannot be "abrogated, repealed or even amended." It explained that the Clause (3) of the Article conferred power to the State's Constituent Assembly to recommend to the President on the matter of the repeal of the Article.

Since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, Article 370 has taken on the features of a "permanent provision" despite being titled a temporary provision in the Constitution. On 3 April 2018, the Supreme Court of India gave a similar opinion declaring that Article 370 has acquired a permanent status.

It stated that, since the State Constituent Assembly has ceased to exist, the President of India would not be able to fulfill the mandatory provisions required for its abrogation. Subsequently, via the Presidential Order 2019, proviso to Clause (3) of Article 370 of the Constitution, the expression "Constituent Assembly of the State referred to in Clause (2)"was replaced with "Legislative Assembly of the State", thus allowing fresh power to the elected legislature of the State to give assent to the Governor, for "abrogating, repealing and amending" the effectiveness of Article 370.

In the case of Mohd Maqbool Damnoo Vs State of Jammu and Kashmir [(1972) 1 SCC 536], the petitioner challenged the constitutionality of interpreting and replacing the Sadar-i-Riyasat with the Governor of the State. The Supreme Court of India held that the "Governor is the successor to the Sadar-e-Riyasat and is able to give the State government's concurrence to any amendments under Article 370".

With removal of the last firewall, no special status condition was left to be entertained allowing the President of India to be in unilateral control of whole of the State. Unfortunately, this breach of mutual bona fide has opened fresh gateway to entertain the theory of deeming fiction thus resulting in one-sided decision-making authority.

Present government of India has light up the runway for future governments and leaders to take-off on the same mischief for entertaining possibilities and outcomes which may not be desired by the people of India. It further creates a situation whereby arm-twisting the sensitive States specifically the ones that boundary the territories from the East, a situation of political monopoly could be drilled in the pool of future elections.

With past instances of unfair practices by political parties and coalitions at the Centre, being excellent examples on the 'Misuse of Article 356 (State Emergency)' and Governor's role in forming State governments, aimed to gain political dominance in States, adopting such crooked ways of gaining power would only instigate concerns over the bona fide intentions attributed towards the elected representatives of - 'We, the People of India'.

On employing tools of Interpretation, Article 92 of the Constitution of Jammu & Kashmir; and Article 370 of Constitution of India, the legislative intent of the framers can be found pointing to the conclusion that last word on sovereignty of Jammu &Kashmir vests with its people i.e. the Legislative Assembly of Jammu and Kashmir.

Though it may be interpreted as mischief adopted by deeming consent from Parliament on behalf of the Legislative Assembly of Jammu & Kashmir shall amount to nothing but eyewash to the Constitution of India as the same is incongruent with the intentions of the framers.

Such bullish approach to singlehandedly crush the immunity provision of the State's sovereignty is a clever solution by-passing the prescribed solution. In my opinion, there could not have been any substitute to the consent of the Legislative Assembly of Jammu & Kashmir, in the case where the applicability of the Article 370 of the Constitution of India is concerned.

Such manufactured acceptance by Parliament followed by the resolution passed by the President, issued under Article 370 (3) rendering all clauses of Article 370 inoperative does not reflect the will of the people of Jammu & Kashmir as the same can be deemed legal only if given by the elected représentatives constituting the Legislative Assembly of the State of Jammu & Kashmir, as clearly specified in Sub Section 3 of Article 370.

(The writer is an advocate, practicing at Delhi High Court)