The special of J&K under Article 370 had become a permanent feature and tinkering with it can have disastrous consequences
The manner in which special status of Jammu and Kashmir under Article 370 of Constitution of India has been dealt a severe blow, it shows that BJP has made J&K a theatre of its militarist and muscular Hindutva nationalism. Abrogation Article 370 was adopted by the right wing party in script previously and after 2014, when it gained power, in performance. With a highly militaristic approach to separatism and shunning political process in entirety since 2014, the BJP has now delivered on a promise, it made to the masses in the rest of the country, through a combination of executive and parliamentary measures. Moreover, for the first time in the history of India, J&K has been downgraded and divided into two Union Territories from a State. The mechanism adopted by the government to propagate and extend its retrograde ideological to J&K through Rajya Sabha was both hasty and stealthy.
This move will not only strain India’s social in its impact on the State but also portents it holds for federalism, parliamentary democracy and diversity. It is no surprise that the BJP-led government has undermined parliamentary authority in many ways since 2014, but the passing of legislation as far-reaching as dismembering a State without prior consultations has set a new low. The founding fathers of the Socialist, Secular and Federal Republic favoured a strong Centre, but they were also prudent in seeking the route of persuasion and accommodation towards linguistic and religious minorities in the interest of national integration. The centralization of power trend started in the following decades, but Hindu nationalists always argued for stronger unitary provisions and viewed all particular aspirations with suspicion. For them, J&K’s special constitutional status was an impediment, not an instrument, for the region’s integration with the rest of the country.
The entire exercise of getting Article 370 effectively abrogated has been marked by executive excess. The first step was to declare by a presidential decree that the ‘Governor’ – without regard to the fact that he has no Council of Ministers now to aid and advise him – can speak for the State government and give his concurrence to any modification in the way the Constitution of India applies to J&K. Secondly, on the basis of this ‘concurrence’, the latest Presidential Order scraps the previous one of 1954, abrogating the separate Constitution of Jammu and Kashmir. Thirdly, the fact that the State is under President’s Rule has been used to usher in a new dispensation under which J&K becomes a UT with a legislature and Ladakh another such territory without a legislature. In total, a purported process to change the constitutional status of a sensitive border State has been achieved without any legislative input or representative contribution from its people. The bifurcation of States in the past cannot be cited as a binding precedent as, under Article 3 of the Constitution, the President seeks the views of the legislature of the States concerned, even if concurrence is not mandatory. In the present scenario, J&K has been represented by an unelected Governor appointed by the Centre, while Parliament has ventured to ratify the conversion of a State into two UTs without any recommendation from the State.
In the event, there is a legal challenge to these measures, it would centre around whether such far-reaching steps could be achieved in the absence of a representative government by assuming that its gubernatorial administrator is constitutionally capable of using his consent as that of the entire State. Moreover, there is a self-enabling aspect to the Presidential Order. It hops over the requirement of the State government’s consent by declaring that the Governor is the State government. It steps over the need for aid and advice by the ministerial council by saying the Governor’s opinion is enough. It jumps over the fact that there is no Constituent Assembly now by merely reading the term as ‘legislative assembly’, and letting Parliament perform the role of the State legislature. Now, the President’s power under Article 370 has been used both to create an enabling provision and to exercise it immediately to modify the Order, thereby dispensing with the role envisaged for the State Assembly. It cannot be forgotten that in 1961 the Supreme Court upheld the President’s power to ‘modify’ the constitutional provisions in applying them to J&K, it is a moot question whether this can be invoked to make such a radical change: a functioning State has now been downgraded and bifurcated into two UTs. It is unthinkable that any State legislature would ever recommend its own demotion in status. There is no doubt that J&K’s special status could be brought to an end, but only with the concurrence of its people.
The Centre’s abrupt move took away their right to do so on a matter that directly affected their life and sentiments. It is intriguing that this was done after a massive military build-up and the house arrest of senior political leaders, and the communications shutdown and reveals a cynical disregard to democratic norms. It appears that the NDA-government values J&K for its demonstrative impact before the rest of the country, as a place where a strong nation and its strong leader show uncompromising political will. But that may have other unintended consequences. Geographically and metaphorically, J&K is the crown of secular India a Muslim majority region in a Hindu majority country. Its people and leaders had chosen secular India over Muslim Pakistan, a fact that Islamists never reconciled with. Whatever be its intent in enabling the full integration of J&K with India, August5, 2019, decision to alter the State’s status could have unintended, dangerous and disastrous consequences in the future.