OPINION: Abrogation of Article 370 is constitutionally tenable, long overdue

Every decision that we venture to take in our lives will have both pros and cons and the optimal method to arrive at a conclusion on whether to choose one way or the other can be ascertained by comprehending the repercussions of the intended outcome by weighing pros and cons.

If pros outweigh cons, then certainly such a decision can be regarded as a progressive one.

Let us apply this analogy to the most contentious Presidential order C.O.272 proclaimed on August 5 and the subsequent discussion on the Jammu and Kashmir Reorganisation Bill 2019 in both houses of the Parliament.

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To put the things in perspective, I would like to start with the literal interpretation of the text of Article 370 as enshrined in the Constitution of India.

Article 370 reads as follows:

370. Temporary provisions with respect to the State of Jammu and Kashmir

So, from the text it is as clear as daylight that the provision was intended to be of temporary character or temporary nature. Therefore, the proposition that it has attained the nature of permanency subsequent to the dissolution of Constituent Assembly, whose concurrence is essential as under Article 370(3) to take any decision pertaining to Jammu & Kashmir, holds no water and deserves no merit.

The second contention that was raised by those who oppose the abrogation of Article 370 was the concurrence of Legislative Assembly was not taken into consideration as the state is under President’s rule and therefore the consent or concurrence of the Governor holding a gubernatorial post cannot be regarded synonymous to the consent of the legislative assembly.

This proposition/contention is constitutionally untenable for the following reason:

Article 356(1)(a) and Article 356(1)(b) reads as follows:

356. Provisions in case of failure of constitutional machinery in State

(1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may be Proclamation

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;

So, the proposition that Governor usurped the powers vested in the council of ministers headed by the chief minister holds no ground when Article 356 is invoked and when the State is brought under President’s rule. Therefore, the concurrence or the consent of the Governor is as good as the consent of the legislative assembly or that of the chief minister and his council of ministers.

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Now, the third contention/fear that the state of Jammu and Kashmir has been downgraded to a Union Territory by the Union Government by its brute majority in the Parliament and therefore this practice could be replicated in other states at the behest of the Union Government sans consent from the state government and thereby denting the federal spirit of our Constitution.

This proposition is ridiculous for the following reasons:

1. The Constitution of India did not envisage complete federalism to states and therefore in India we follow the principle of quasi-federalism which says indestructible Union with destructible states.

2. Also, the Constitution of India through Article 3 empowered the Union government to carve out a new state from the existing state even without the consent of the state legislative assembly. Bifurcation of erstwhile combined state of Andhra Pradesh, notwithstanding the opposition for the bifurcation by the then state legislative assembly, thereby creating a new state of Telangana to satisfy the long overdue demand for a separate state bears testimony to this very fact.

Therefore, the Constitution of India categorically empowered the Union government to reorganise any state.

The principal or main objection being: whether abrogation of an Article part of the Constitution can be done by a mere Presidential order or it mandates a constitutional amendment under Article 368.

The retort to this objection lies in the Article 370(3).

Article 370(3) reads as follows:

Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification.

So, a plain reading of the aforementioned text categorically states that a Presidential Order is adequate to abrogate Article 370 and an amendment to the constitutional is unequivocally redundant. This is for the simple fact that the character of this provision is intended to be temporary.

Therefore, those who regard the recent modus adopted by the Union government to abrogate Article 370 as playing fraud on the Constitution or constitutional monstrosity were either naive in their understanding of constitutional scheme of things or cynical in their approach.

The cons can be categorised into the following:

1. No proper consultations held with the stakeholders

2. Prominent leaders were kept under house-arrest

3. Curfew imposed in predominant parts of the state.

I, for one, do not sanction the practice of detaining individuals for enacting legislations or for ensuring abrogation; no lawyer who practices constitutional law or human rights law endorse imposition of curfew in the state thereby curtailing several constitutional safeguards guaranteed to individuals; and no prudent individual considers it wise to arrive at a conclusion on any issue without taking the stakeholders into confidence. However, the abrogation of 370 cannot be looked from the prism of a conventional exercise as such a humongous task mandates dispensation to resort to some extreme steps, else it would take another 70 long years to fulfil long overdue demand of full integration of Jammu and Kashmir in the Union of India.

Umesh Chandra is an advocate practising primarily in the Andhra Pradesh and Telangana High Courts.

Disclaimer: The opinions expressed in this article are those of the author's and do not purport to reflect the opinions or views of THE WEEK.