IS ARTICLE 370 DEAD?-III

Bifurcation of Jammu & Kashmir State: Besides making Article 370 redundant vide cited Presidential Order, the Government of India passed the Jammu & Kashmir (Reorganisation) Act, 2019 first as a Bill in Rajya Sabha on 5-8-2019 which was passed by Lok Sabha on 6-8-2019 & received President’s assent on 7-8-2019 & on the same day it was published in the Gazette of India. The Jammu & Kashmir (Reorganisation) Act, 2019 bifurcated the State into two Union Territories of Ladakh & J&K. The Jammu & Kashmir (Reorganisation) Act, 2019 extended 106 Central Laws including the Central Transfer of Property Act, massively amended 7 State Acts including most important State Transfer of Property Act (ss 139 & 140), repealed 153 State Acts including significant Land Grants Act & retained less important 166 State Acts in respect of their application to the two Union Territories. Although reorganisation of States is a prerogative of Parliament under Article 3 of the Constitution, yet, the Bill is “mandatorily” required to be “referred” by the President to the “Legislature of the State” for expressing its views thereon. The word “consultation” with “State Legislature” under Article 3 does not mean ‘concurrence.’ (Ref Pradeep Chaudhary v. Union of India, (2009) 12 SCC 248 = Supreme (SC) 937, paras 12, 14 & 21) The word “concurrence” has been used in Article 370. It means “full agreement”.

As Article 370 began with a non obstante clause, “Notwithstanding……” having overriding effect upon Article 3, it meant that “concurrence” of the “State Legislature” was “mandatory” for reorganisation of the State by the Union of India. But no State Government or State Legislature existed in J&K as on 5-8-2019 when the Government of India passed the Jammu & Kashmir (Reorganisation) Act, 2019 &, naturally, no “concurrence” was obtained by the Union of India. Ex-Chief Justice of India has unambiguously cleared the position: “…the Constitution can be amended to meet the changing situations but…..even the amendment of the Constitution of India will not apply to Kashmir unless made with the “concurrence” of that government”. (Op cit A S Anand, page 63, commas mine) These important points will be surely discussed in the Supreme Court where the said Presidential Order & Parliamentary Amendment of 2019 are presently in question. See next

Before- abrogation-bifurcation: (unmissable developments)

Before 5th August, 2019 certain unmissable developments had occurred that need to be discussed here. Since abrogation of Article 370 was on BJP’s election manifesto right from beginning, the question, then arises why didn’t BJP do it during its earlier rule of India from 2014- March 2019. The answer is plain. It needed required number of seats in the Parliament and concurrence of the State Government for such a step. In its previous tenure of government, 2014 to March-2019, BJP did not have the required numbers in Parliament, although its Rule through its “nominees”, first the Governor from 20-06-2019 to 20-12-2018 & then the President of India from 20-12-2019 onwards, was already there in the State. April-May Elections of 2019 gave BJP decisive mandate in Parliament. As they got required numbers in Parliament, they took immediate steps for revoking the State’s special status.

But without “concurrence of the State Government”, passage of the Constitution (Application to Jammu and Kashmir) Order, 2019 by the President [simultaneously followed by the Parliament’s passing of the Jammu & Kashmir (Reorganisation) Act, 2019] was impossible. Wherefrom they got the required “concurrence”, or simply put, the recommendation for the revocation of Article 370? They got it from their own “nominee”, the President of India. In the context of compulsorily required “consent” for such a drastic sweeping Presidential order in respect JK’s special status after seven decades, the President cannot be equated with the “State Government” in a federally balanced Constitutional democracy. What is State Government? It is different from State under Article 12. “The Constitution itself makes a distinction between State and its Government called the State Government”. (See India today Magazine online issue dated 19-06-2017, Ram Nath Kovind is BJP nominee for President)

And, under section 3 (8) & (60) of the General Clauses Act 1897, Central government & State government are two different entities. ( Ref Goa Sampling Employees Association v. General Superintendence Co. of India Pvt. Ltd, 1985 SC, para 14) Government refers to a group of people authorised by electorate in a constitutional democracy for governing a country or a State.

The last time an “authorised” or “elected” government in the State was the coalition government of BJP & PDP which ended on 19-06-2018 when BJP withdrew its support from its coalition-partner, PDP. The State immediately came under the Governor Satyapal Malik’s Rule of six months under section 92 of the Constitution of Jammu and Kashmir. On 21-11-2018, the PDP staked claim to form a government with its own 29 legislators and the backing of 15 National Conference and 12 Congress legislators, total 56 legislators in Jammu and Kashmir Assembly of 87 members total.

This was followed by another bid for government formation by People’s Conference party of two members who claimed support of 18 BJP legislators, which was a very weak claim on face of requisite numbers. As the Governor was “not available” & “fax machine in his office was not working”, as was reported by his office, so, both claims were sent to him on tweeter & whatsapp. Few hours later, on the same day of 21-11-2018, in response to these claims for government formation, Governor Satyapal Malik dissolved the State Assembly “abruptly”. (Ref: The Hindu dated 19-06-2018) A Public Interest Litigation /PIL challenging the dissolution of the J&K Assembly by Governor Satyapal Malik without affording the legislators opportunity of government-formation was filed in the Supreme Court. However, the PIL was dismissed by the Supreme Court on 9-12-2018 stating that it was “not inclined to interfere (with the decision of the Governor)” The Economic Times dated 21-11-2018 reported “the parties came together to safeguard the special status of the state legally and politically”, so, naturally, dissolution was seen as a preemptive measure to stymie any chance” of these major political parties with absolute majority coming together forming “a government, which could have been a political headache for BJP”. It may be noted that The Economic Times, The Hindu & The TOI, of 10-10-2018 all published the cited SC order.

The Governor’s Rule ended on 19-12-2018. So, the State was put under the President’s Rule from 20-12-2018 “paving the way for the Union Cabinet to take all policy decisions” regarding the State through the President. (Ref The Economic Times dated 10-12-2018 ; read also S. R. Bommai v. Union of India, 1994 SC and the Hindu dated 18-05-2018[What is the S.R. Bommai case, and why is it quoted often?) BJP-government at Centre took “concurrence” from the “President” which they apparently believe was equal to “concurrence of State government” in the context. But, to iterate, the Governor & the President being “nominees” or “representatives” of the Central Government itself cannot be said to the “State Government” for the purpose of giving “concurrence” for & on behalf of the State Government under Article 370(1), albeit in the past, State Governments have been arbitrarily dismissed several times by the Central Government & the Governors’ Rules applied to the State several times during which many provisions of the Constitution were “imported” or “applied” to the State but Article 370 ,as such, was never abrogated since it was the pipe connecting, not disconnecting, J&K State with India. These facts will be examined by the Supreme Court which is presently hearing the challenges made to the said Presidential Order & Constitutional Amendment. (Read next)
Present position:
The Constitution (Application to Jammu and Kashmir) Order, 2019 and the Jammu & Kashmir (Reorganisation) Act, 2019 have been challenged in the Apex Court vide a number of writ petitions. On 23-01-2020, the petitioners contended before the five judges bench of the Supreme Court that Jammu & Kashmir had not integrated or merged with India the way other States of India had. The State had only “acceded” through IOA of the Maharaja replaced by Article 370. The Attorney General K K Venugopal rebutted & argued that the State had merged & integrated as proven by Article 370. (Hindustan Times dated 28-02-2019) But Prime Minister & Home Minister, at the other end, have been publically declaring that it was the abrogation of Article 370 that enabled the complete integration & merger of Jammu and Kashmir with the Indian Union which means prior to that “integration was incomplete”. (Times of India dated 23-01-2020) The points raised here will definitely, among others, be discussed in the Supreme Court.

Lastly, considering the above cited rulings of the Supreme Court on Article 370 & political history of J&K, the Supreme Court may strike down said Order & Amendment if it is convinced that the central government’s action is conflicting with basic structure (Article 370) & otherwise against established procedure of law-making with respect to J&K as agreed by the Indian State under that provision with JK by the Constitution-makers. But, how the Supreme Court will, after hearing the petitioners & the government of India, ultimately decide the matter remains to be seen. On 2nd March, 2020, the Supreme Court declined to refer the matter to a larger bench as it did not find any conflict in its judgments in Prem Nath Kaul (1959) & Sampat Prakash (1970) cases cited above as was argued by the petitioners. It means the petitioners’ case will be now heard by the already constituted five-judge bench of the Supreme Court.
–(Concluded)