Modi govt's legal manoeuvring on Article 370

The Narendra Modi government's sudden moves amounting to nullification of the contentious Article 370, which gave Jammu and Kashmir a kind of autonomy not enjoyed by other states in the country, carry immense political significance, fulfilling a longstanding item on the BJP's 'to-do list'. However, politics apart, the decision has come across as an intricately designed legal project that is being variously described as either smart or legally questionable.

Article 370 has not been abrogated, contrary to popular perception. Rather, the provisions of the very same Article have been used by the government to render ineffective its very essence, which was to give Jammu and Kashmir autonomy in all matters except for areas of Defence, Foreign Affairs and Communications.

The Presidential order of August 5—The Constitution (Application to Jammu & Kashmir) Order, 2019—was issued under Clause (1) (d) of Article 370, and it stated that apart from Articles 1 and 370, all the other Articles of the Constitution will apply to the state subject to the exceptions and modifications made by the President. This, for all practical purposes, negates the basic purpose of Article 370, which was to provide the state with a special status.

The government did not take recourse to Clause 3 in the same Article which carries a provision for repealing it. However, a Presidential order under Clause 3 can be issued only acting upon a recommendation from the Constituent Assembly of Jammu and Kashmir, an entity that ceased to exist in 1956.

Also, the Presidential order has amended Article 367 using Article 370(1)(d), to the effect that any reference in the Constitution to the 'Government of Jammu & Kashmir' or 'Sadr-i-Riyasat' shall be construed as a reference to the 'Governor of the State'. This took care of the requirement for the Presidential order to have the concurrence of the state government.

Senior Supreme Court lawyer Lalit Bhasin described the J&K notification as a “clever move” since Article 370(1) has been used to nullify Article 370. “It will be difficult to challenge it in court. The rule empowers the President to issue necessary orders. So the government has achieved nullification of Article 370 through an administrative route,” he said.

As suspense built up over what the government was planning to do with regard to Jammu and Kashmir, even the lawyer-politicians in the opposition parties were not expecting this kind of a legal manoeuvring to be attempted on Article 370. “At best, we thought the government was planning to issue an order on Article 35A,” said a senior Supreme Court lawyer who doubles up as a Congress leader.

Attorney General K.K. Venugopal and Solicitor General Tushar Mehta played a big role in the drafting of the legal aspect of the government's Jammu & Kashmir initiative. And this line of action, said a senior government functionary, was drawn up knowing well enough that there would be another view on it.

Senior lawyer K.T.S. Tulsi, who is a Rajya Sabha member, said the Presidential order was a “brilliant move”. While the Jammu and Kashmir order has promptly been challenged in the Supreme Court, Tulsi said he doubted if the judiciary would want to enter a political thicket of this kind.

However, questions are being asked about the democratic propriety of the legal strategy adopted by the government. The Presidential order is being criticised for negating the requirement of a nod from the elected leadership of the state, and the point being raised is that the Governor cannot be a replacement for a government chosen by the people.

“This is totally unconstitutional. The Centre has vested upon itself powers that is not theirs. It is undemocratic, unilateral and patently illegal,” said senior Supreme Court advocate Mahalakshmi Pavani.

The bifurcation of the state into two Union Territories is also being questioned. It is being said that the move goes against the spirit of federalism. And the specific point being highlighted here is that the splitting of the state and the decision to create two Union Territories out of it were carried out acting on the recommendation of the Governor, rather than following the norm of first getting a resolution passed to the effect from the state assembly.

“If Jammu & Kashmir can be declared a Union Territory by Parliament, then any state or all states together can be declared so by it. This assumed power of Parliament hits at the federal structure, one of the basic features of the Constitution,” said Pavani.