Was Modi govt’s move to abrogate Article 370 constitutionally unsound?

A recent book on the subject delves into detailed arguments to reach the conclusion that Modi govt’s move to abrogate Article 370 in 2019 cannot be held to be legally sound

Was Modi govt’s move to abrogate Article 370 constitutionally unsound?

Harihar Swarup

A book titled ‘Hamin Ast? A Biography of Article 370’, was launched on August 5, the third anniversary of the abrogation of Article 370 by the Modi govt. The book may well create a stir because it argues that the Centre’s move was legally unsound.

The book is authored by Jinaly Dani, Pranay Modi Kilvin James and Arghya Sengupta – founder and research director at the Vidhi Centre for Legal Policy, which published it.

It argues that the abrogation of Article 370 is unconstitutional for three reasons.

The first is to do with Jammu and Kashmir governor’s concurrence equating the Constituent Assembly with the legislative assembly. Here, it’s not so much about how it is done – though that’s an issue too – but the fact that the governor’s concurrence was given when the state was under President’s rule.

The book says: “When the governor of J&K purportedly gave his consent on behalf of the state government, he was not acting in his independent capacity, but rather as a delegate of the President…this amounted to president seeking his own concurrence…. Can such self-concurrence be deemed to satisfy the requirement of law? The short answer in no.”

The second reason is the way Article 366 was used, it says. This Article is intended to help interpret the Constitution. However, in this instance, when it was used to interpret the Constituent Assembly as the legislative assembly, it made “substantive changes to the provisions of the constitution”, says the book.

“It is abundantly clear that (was done)…. not to resolve any interpretative conflict or confusion (but) … to clothe the legislative assembly with a specific substantive power which it did not have earlier,” say the authors.

The third reason, the book says, is to do with the proclamation of President’s rule in Jammu and Kashmir. This declared that all powers of the assembly would be excercisable by Parliament “unless the context requires otherwise”. The context is, therefore, the determining factor.

What was this context? The book says it was “the historic compromise between Jammu and Kashmir and Union of India, which was embodied in the text of Article 370”. In turn, this means “the terms and conditions of Jammu and Kashmir’s constitutional relationship with India would be determined by the representatives of Jammu and Kashmir jointly with the representative of the people of rest of India”. This context “required two hand to clap before any change could be made to this constitutional relationship”. The second hand is missing.

The book’s point is simple, but stark: “Even though the powers of the legislative assembly…..had been taken over by Parliament as a consequence of the imposition of the President’s rule, the terms of proclamation …. prohibited Parliament from exercising those powers on behalf of Jammu and Kashmir legislative assembly in context of Article 370.”

Now, the book could be said to be just an opinion of the Vidhi Centre, but it, as well as Arghya Sengupta, are highly regarded and widely acknowledged authorities on the Constitution. Their views matter and the fact that such a book has been published makes it all the more significant. They wouldn’t have done that if they weren’t convinced of their case.

Of course, the Supreme Court is yet to take up petitions challenging the Centre's move. So far, it has postponed doing this, probably in the belief that, if necessary, the clock can be turned back. However, most people believe that after three years, such a development is highly unlikely.

The book, on its part, suggests that it would be a constitutional travesty if the abrogation of Article 370 becomes a fait accompli.

(IPA Service)

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Published: 13 Aug 2022, 9:00 PM