Zaid Deva on Article 370

A law student named Zaid Deva has a quite well-written but wholly fatuous  article here titled 'The Constitutional Siege on Article 370.'

He commences thus-

'On August 5, India revoked Article 370, a controversial provision in the Indian Constitution, which happened to be the only link between the State of Jammu & Kashmir and the Indian Union.

Article 370 has not been revoked. It has been amended and rendered inoperative on the basis of that amendment. The link between the territory and India arose out of the intervention of the Indian army, at the invitation of the Sovereign, to repel a Pakistani invasion. The links between that area and India are military, political, legal, commercial and on the basis that J&K is, constitutionally, an integral part of India without any vestige of sovereignty.

No one questions the de jure and de facto nature of Indian sovereignty though some terrorists and Pakistani military men may try to challenge it. But they are killed when they do so.

This is not a controversial matter. It may be that the Muslims of the Valley- who constitute half a percentage point of the Indian population- are unhappy but their unhappiness would be greater if left to their own devices.

After its revocation, the Union parliament passed a bill to reorganise the State into two federally administered Union Territories, a move which some have labelled as “illegal occupation” of the State.

Those people are now, quite legally, incarcerated. How long will it take for them to change their tune?

Technically speaking, the recent Presidential Order used Clause 1 of Article 370 to amend the Indian Constitution as it applied to J&K.The amendment replaced the required concurrence of the Constituent Assembly by that of the Legislative Assembly. Since there was no Legislative Assembly functioning at the time of the order, the Governor's concurrence was used to validate the amendment of the Indian Constitution.  The President then used  Clause 3 of the amended Article to render it inoperative.

Our student lawyer next avers-

T he State of Jammu & Kashmir is essentially an associate state of India and not one of its constituent units.

The concept of associated state was developed to describe post colonial relations between a strong and a weaker power- e.g. US and Puerto Rico. By contrast, J&K is constitutionally an integral part of India. It has been a constituent part of India for much longer than Sikkim. It is not a Protectorate nor has it enjoyed even a vestige of sovereignty de jure or de facto.

The Indian territory that exists today consists of the former British Indian territories, which were directly ruled by the British and, the princely states, over which the British acted as suzerain. While the latter territories merged into India after effecting a number of instruments and covenants in favour of the Indian Union, the State of Jammu & Kashmir (J&K), through an Instrument of Accession (IoA), only transferred law-making powers in respect of three subjects to the contemplated Union of India.

All Princely States (save 3) initially signed instruments of accession such that only powers over Defense, Foreign Affairs and Communications were surrendered to the Center. Subsequently, all states surrendered more and more powers and relinquished sovereignty. Hyderabad and Junagadh were invaded. Kashmir called in Indian troops to defend itself against Pakistani aggression and signed the original type of Instrument of Accession. Most States had Constituent Assemblies but by 1949, speaking generally, it was accepted that the Indian Constituent Assembly would frame a Constitution which all would adopt. Kashmir was an anomaly because a portion of it was occupied by Pakistan and there was some hope that the entire State would come to India in accordance with the wish of its sovereign. This did not happen. However by 1954, the Kashmiri Constituent Assembly had fully acceded to India on the same pattern as other Princely States, though with some cosmetic differences.

Unlike Sikkim or Bhutan, Kashmir had no sovereignty. It was not a protectorate or 'associated state'. Sikkim was annexed by Indira Gandhi. Bhutan was left alone.

As elaborated in the White Paper on Indian States issued by the Government of India in 1950, this procedure was a “halfway house” between complete separation and full integration. This arrangement ensured that the sovereign nature of J&K would continue since the accession only transferred public functions and not sovereignty. All the powers that the union would exercise were still derivable from J&K.

The 'halfway house' ended after the Constituent Assembly voted unanimously to accede to India in 1954. Had it not existed, the Ruler could have acceded by his own sovereign will. At that time, the Constitution of 1950 treated Princely States as 'Class B' with a ten year provision for Central control over administration. The need for this disappeared so the 1956 Constitution dispensed with this provision.

The learned author quotes a speech of Sheikh Abdullah's made in 1952.He does not mention that Abdullah was toppled and thrown in Jail the very next year! Bakshi Ghulam Mohammad ran the State as Delhi's vassal-  he was considered an able administrator who was toppled by the foolish Kamraj plan. Had he continued in office J&K might now be a very different place.

The author quotes A.G Noorani who would have us believe the Constituent Assembly was elected by adult suffrage. The fact is only National Conference candidates were allowed to stand and thus they were elected unopposed. Naturally the Jammu Praja Parishad was disaffected because they were not allowed to stand for election. Similarly, G.M Karra's group was not allowed to present even the cosmetic appearance of 'loyal opposition'.

The supine nature of the Constituent Assembly is shown by its failing to protest Abdullah's incarceration and the alacrity with which it passed what was required of it by Delhi in 1954. It dissolved itself on the resolution of the Congress leader in the region and its authority passed to the Legislative Assembly.

The author states 'The problem with the 2019 Order is that, passed under amendatory powers, it seeks to supersede the Basic Order. This would be equivalent to enacting a new constitution under amendment powers.'This begs the question, did J&K have a separate Constitution with equal or greater authority than the Indian Constitution? If it did, it must have had some degree of sovereignty.

The Supreme Court verdict in SBI v Santosh Gupta (2016) states that it is 'clear that the State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India.'

The Indian Supreme Court alone can say what is or isn't the correct interpretation of the Indian Constitution. In this case a slight amendment of the Indian Constitution has been made. It is by no means a new Constitution or a violation of 'Basic Structure'. Nor is it a 'backdoor' attempt to subvert the constitution because  Damnoo vs State of J&K (1972) clarified that the Order making the Governor of the State equivalent to the former Sadar-i-Risayat was not a 'backdoor' way of changing Article 370.

The judgment reads 'Clauses  (aa) and (b) of article 367(4) as  substitutedby C.O. 74 of 1965 (The Constitution Application to Jammu and Kashmir) Second Amendment Order, 1965 cannot be said to be an amendment of Article 370(1) by back door. The Explanation had become otiose and references to the Sadar-i- Riyasat in other parts of the Constitution had also become otiose. There were two alternatives, first, either to leave the courts to interpret the words "Government of the State" and give it its legal meaning or secondly to give legal meaning in a definition clause. What has been done is that by adding clauses (aa) and (b) a definition is supplied which the Courts would have in any event given. Accordingly, it must held that the amending Act was validly assented to by the Governor.'

The learned author concludes as follows 'The court failed to acknowledge that the Puranlal case was decided in the context when the constituent assembly was functioning and in the Sampath Prakash case the question pertained to the post-constituent assembly phase, i.e. the power of the State was in question.'
I don't understand this. Puranlal was decided some years after the Constituent Assembly dissolved itself. The Sampath Prakash case merely confirmed that 'temporary' measures could be extended indefinitely. The fact that the Constituent Assembly had dissolved itself long ago had no legal significance whatsoever.
The Sampath Prakash case dates from 1968. It is bizarre to suggest that anybody is relying on it as a precedent. The author says-
 'In light of this, reliance on the Sampath Prakash case as a precedent is questionable and hence the need for a review to accept a doctrine of implied limitation'.
Sadly no 'review' is going to accept that some supine Assembly, created by vote rigging, which dissolved itself long ago can have magical powers for all eternity. The doctrine of implied limitation is a two edged sword. Clearly, some long vanished Assembly was not in a position to envisage subsequent developments- e.g. Pakistani sponsored Terrorism in the Valley. Thus, limitations apply to that Vanished Assembly's previsions. By contrast, the Governor and the President- who are apprised of current conditions- can use the doctrine to establish limitations such that fundamental rights of affected citizens receive better protection.

What is the truth of the matter? Did J&K have special status? The answer is- because of Nehru's blunder- it did have special status. Had Sheikh Abdullah not been toppled and jailed, he could have- with full legal justification- declared independence or acceded to Pakistan. The question was, would the masses follow him? The answer was- no. The Valley remained quiet while 'the Lion' was caged. After Abdullah's fall (he was only to return to power in Kashmir as a vassal of Indira Gandhi in the Seventies) the de facto position was Kashmir had zero sovereignty. The Governor- previously the Crown Prince Dr. Karan Singh- could always dissolve the Legislature and agree to anything Delhi wanted. A number of Supreme Court decisions confirmed this was also the de jure position. Yes, there was some sort of cosmetic 'special status' but it militated for lower, not higher, rights for Kashmiris. Indeed, Sheikh Abdullah, on returning to power, passed draconian 'preventive detention' laws which, because Kashmir was so special!, meant Kashmiris could always be locked up by New Delhi.

Why was J&K treated so badly? The answer is two fold- firstly it was constantly under threat by Pakistan and secondly it has had corrupt, incompetent, leadership of a factionalist and dynastic type. Blame for this outcome should be divided between Nehru and his friend Abdullah. Two dynasties have presided over the shambles that is the Valley. Now, a non-dynastic party- the BJP- has cut the Gordian knot which represented a nuisance simply. Facts will now have to be faced- even by law students like Zaid Deva- once the Supreme Court will pronounce its judgment on this issue.