Dilution of Article 370: Constitutionality

Photo credit: Tapas Ranjan

Dilution of article 370 is being scrutinized on the ground of Constitutionality. Previously, article 370(3) enunciated that the President could not abrogate or modify the provision without prior recommendation of Constituent Assembly of J&K, which was dissolved in 1957 leaving an enigma over its functionality. With introduction of C.O.272, Constituent Assembly of J&K is to be interpreted as Legislative Assembly of J&K. At that Juncture, J&K being under President’s rule, article 356(1)(b) went on to accredit all the powers of the aforesaid legislative assembly to the Parliament, with recommendation of whom article 370 was modified. Further article 370 acted as a special provision for modification or amendment of the Constitution in its application to J&K. This power of the President under article 370(1)(d) were to be invoked with consultation or concurrence of Government of J&K i.e. Governor of J&K acting on advice of his Council of Ministers. Due to President’s rule, the aforesaid power was invoked without seeking the ministerial advice given that the Council of Ministers stood dissolved. In India, power of the governors are such that no provision require them to act only on the advice of their ministers. The courts cannot declare an act of governor as invalid merely on the grounds that he acted without seeking, or in nonconformity with, the ministerial advice. This remains a question of political complexion. Sir Ivor Jennings regarded such obligation on the governor, to act only on advice of his ministers, as a mere convention.

As regards assertion of article 370 as a permanent provision, the marginal note of article 370 clearly characterizes it as a temporary provision. It is worth pointing that marginal note cannot affect the literal construction of the body of the article but for uncertainty and ambiguity in its content. Such ambiguity was evidential in case of article 370, thus marginal note must be taken into consideration. Although, the apex court of India observed article 370 to be a permanent provision in the SARFESI case and numerous other verdicts, it is submitted that interpretation of article 370 as a permanent provision, heavily relied on precedents instead of changing socio-economic conditions, is rather a cockeyed approach.

Constitutional validity of reorganization of J&K remains a separate question altogether. In this regards, center’s compliance to the procedure enunciated under article 3 of the Constitution would be taken into account.

In light of above arguments, dilution of article 370 seems to be constitutionally valid though it remains a constitutional sleight of hand given the manner in which the dilution was conducted. Still, a prognostication, at this juncture, as to the legality of this move would be premature. Rather, it should be left at the discretion of the Supreme Court of India. It is, however, submitted that acts like conversion of J&K into a UT, detention of the local political leaders, indefinite shutdown of internet in the valley are acts of gross iniquity. It violates the democratic ethos of the constitution and should not be condoned by anyone. It would be interesting to see what the Apex court opines on these issues as well, given that it has already observed, in the Anuradha Bhasin case, that exercise of fundamental right under article 19(1)(a) and 19(1)(g) over the medium of internet is constitutionally protected.

With passage of time, article 370 became counterproductive causing problems like corruption, socio-economic impediment, unemployment, terrorism, exodus of Kashmiri Pandits to name a few. Rather than serving the proletariat, it became a machinery for fulfillment of covetousness of the politicians and the proprietariat. Thus, a more sanguine assessment of this entire issue would suggest that dilution of article 370 could be used to bring about socio-economic reforms in J&K and to truly integrate it with rest of India provided center evinces the political commitment to do so. Eventually, time is going to tell as to what good this move holds for the people of J&K and the nation.

Reference: A.S. Anand, Constitution of Jammu & Kashmirits development and comments.

10 thoughts on “Dilution of Article 370: Constitutionality

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