By Urvashi Sharma, Law Center II, University of Delhi.
Professors and researchers from a wide range of backgrounds have expressed their perspectives regarding the recent Article 370 ruling, which has become a central topic of discussion as the legal landscape undergoes revolutionary changes. But given the outpouring of criticism from several scholars, it is crucial to critically and thoughtfully consider the reasons put forth by those who oppose the cessation of Jammu and Kashmir's semi-autonomous status.
Having said that, the author would now take the liberty to respond to a few statements by Ph.D. scholar, NALSAR, Mr. Burhan Majid on the special status of Jammu and Kashmir. The author firmly believes that the judgment does not dismiss constitutional values, instead, it represents a recalibration of the balance between regional autonomy and national integration.
Mr Majid asserts that the SC has granted the political executive the power to unilaterally abrogate the semi-autonomous status of J&K, allowing the President to do so even after the dissolution of the 'Constituent Assembly'- which he opines is the foundation of the special constitutional arrangement between J&K and the Indian Dominion. He pointed out that the Court adopted a convenient ‘pick and choose’ method, citing the absence of a reference to sovereignty in J&K’s Constitution to substantiate the claim and also forgot its precedents.
The Author’s Differential Perspective
The author respectfully disagrees with his assertions and believes that the Court's decision is based on the constitutional authority granted by Article 370 and does not imply an unrestricted power for the President. As a living text, the Indian Constitution acknowledges the necessity of flexibility in response to evolving conditions. The Court's recognition of the President's power is consistent with the larger constitutional ideas that permit the amendment of sections in reaction to changing circumstances.
Let’s closely examine some judgements and legal provisions:
The State Bank of India v Santosh Gupta 2017 (2) SCC 538 case highlights the adaptability of constitutional provisions, stating that Article 370(1)(b) does not limit Parliament's power, as the Constitution of India applies to Jammu & Kashmir via the 1954 Presidential Order. The language of Article 370(1) provides for the President's authority to issue orders in consultation with the Government of the State. The absence of the Constituent Assembly does not preclude the President from exercising this power.
While Prem Nath Kaul v State of J&K, 1959 AIR 749 may have highlighted the role of the Constituent Assembly, legal interpretations can evolve. Legal interpretations are not static, and they must adapt to changing circumstances.
Here is an example where the apex has upheld the spirit of dynamic legal interpretation:
In Joseph Shine v. Union of India 2019 (3) SCC 39, the Supreme Court revisited its earlier judgment by Former Chief Justice of India Y V Chandrachud which upheld the act of adultery as a crime in the case of Sowmithri Vishnu v. Union of India (1985) (Section 497 of the Indian Penal Code). The Court, in the later decision, declared Section 497 unconstitutional, recognizing the individual autonomy and equality of women in marital relationships. However, decriminalized Article 497.
This is indicative that while the Court respects the doctrine of precedent, it also acknowledges the need to reinterpret the law in light of changing circumstances, ensuring justice and aligning legal principles with contemporary values and issues.
Yuvraj Karan Singh's proclamation in November 1949 was part of the process to align Jammu and Kashmir with the constitutional principles of the Indian Union. It signaled the transition from the legal framework provided by the Government of India Act, of 1935, to the adoption of the Indian Constitution. The Instrument of Accession allowed Jammu and Kashmir to accede to India with certain conditions, and Article 370 was incorporated into the Indian Constitution to grant the state special autonomy. Under this provision, Jammu and Kashmir had its constitution, a separate flag, and greater legislative powers. Residual legislative powers cannot be equated to residual sovereignty as it reflect the value of federalism and the federal underpinnings of the Constitution.
This arrangement is a reflection of the asymmetric nature of federalism, where one state had distinct privileges not enjoyed by others. Article 371, Sixth Schedule Area and Article 329 of the Indian Constitution are more examples of such flexibility present within the purview of the Indian Federal Structure and Constitution.
So, if the position of Jammu and Kashmir is deemed sovereign by Article 370, the other states getting the edge of this flexibility with the Union will also possess sovereignty.
Furthermore, the assertion made by the professor that Article 370 was intended to be permanent as neither J&K’s Constituent Assembly made a recommendation nor the President issued an order declaring that the Article shall cease to be operative.
The Auhtors’ stance on this argument is Article 370 itself is described as a "temporary provision" within the Indian Constitution. The temporary nature is explicitly mentioned in the heading of the article, suggesting that it was not intended to be a permanent feature. The accession of Jammu and Kashmir to India was facilitated by the Instrument of Accession signed by Maharaja Hari Singh in 1947. Article 370 was included in the Constitution to provide a special transitional arrangement for the state. The drafting history of Article 370 suggests that it was conceived as a temporary and transitional provision. It was expected that the special status granted under Article 370 would diminish as the state integrated further with the Indian Union.
In conclusion, the judgment prioritizes national interest, recognizing that constitutional provisions must be interpreted and applied in a manner that serves the greater good. Critics may overlook the imperative of balancing regional autonomy with national interest, a delicate task that the apex seeks to accomplish. It seeks to promote national unity, redress historical inequities, and adapt to the changing legal landscape within the framework of democratic government and constitutional empowerment. Changes in the geopolitical and constitutional context over the years may have influenced the Court's decisions. The evolving circumstances in Jammu and Kashmir, especially considering the geopolitical and security landscape, may have played a role in the Court's approach.
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Wow 😍
Excellent and insightful..
Great read!
Navigated the intricacies of the legal debate with subtlety, offering a well-balanced perspective that demonstrates a commendable depth of knowledge and research.
Impressive 👍