FALI S NARIMAN WRITES: WHERE THE SUPREME COURT WENT WRONG ON ARTICLE 370

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THE CONTEXT: The Supreme Court of India recently unanimously upheld the actions of the Indian government.  Though, abrogation of Article 370 can be held politically correct, concern arises as it lets the Centre get away with violating the constitution and federal principles.

MORE ON THE NEWS:

• The decision has been upheld, in three judgments, one main and two concurring of the Constitution Bench of five judges of the Supreme Court which has facilitated a complete integration of Jammu and Kashmir into the Union of India.
• The unanimous judgment would have been welcomed but this is not all that happened as is facing criticism because of below mentioned reasons.

ISSUES:

• Against constitution and federal principles: Actions taken by the Centre was neither according to the provisions of the Constitution, nor in accordance with well-settled principles of federalism which is a basic feature of the Constitution.
• Diminution without consent of state assembly: Under Article 370 of the Constitution, Article 3 was applied to the erstwhile state of Jammu and Kashmir. It came with a condition that its area would not be diminished by the executive nor by Parliament, without the consent of the J&K State Assembly. However, contrary to this assurance, a very substantial diminution of the area of the State of J&K held without the consent of the inhabitants of Jammu and Kashmir.
• Change of status quo: Recent judgments led not only diminution of the area of the state of Jammu and Kashmir but its status too was unilaterally altered from state to Union Territory a situation not justified by any provision in the Constitution.
• Threat to Federalism: The powers of the Union government with respect to states seem to be enhanced by the verdict, which could be politically unstable. As it could lead to threat to federal principles.
• Concerns of Parliamentary Sovereignty: There are concerns that the  Union can impose the President’s Rule first and then substitute parliamentary approval in place of the Assembly even for highly divisive issues like the splitting of a state.
• Powers of the President under Article 370(1) (d): The President’s power under the Article was not a “constituent power” but merely a power to apply provisions with “modifications and exceptions.”  Thus, abrogation of Article 370 without the consent of State’s Constituent Assembly is not right.
• Violating constituent assembly: Another important safeguard for the state of Jammu & Kashmir had been set out in Article 370 (3) itself as enacted in1950. It states power of the President under Article 370 to declare the entire Article 370 inoperative can come into effect only if the precondition was fulfilled the recommendation of the Constituent Assembly of the state of Jammu & Kashmir. Disregarding this,
• Wrong interpretation by the court: The conclusion of the Court that the recommendation of the Constituent Assembly is not binding on the President was based on the Court’s erroneous interpretation of Article 370 (3) as being in two separate parts. The court wrongly states that the power under Article 370 (3) did not cease to exist upon the dissolution of the Constituent Assembly of Jammu and Kashmir.

THE WAY FORWARD:

• Revisit judgment: SC should act proactively and revisit its judgment of upholding the abrogation of Article 370 by the centre which was done without consulting state legislature.
• Restoring normalcy: There is a need of restoring normalcy in the region for trust-building. It can be done by fostering dialogue and engaging local leaders for peaceful conduction of democratic elections and restoration of the statehood of J&K.
• Ensuring Governance: There is a need for inclusive governance for addressing diverse aspirations of the region.
• Economic development: The imminent focus of the government must be on promoting inclusive economic development of the region by effective implementation of the affirmative policies of the government.
• Establishment of Truth and Reconciliation Commission: Justice Kaul, in his concurring opinion, suggested the establishment of a Truth and Reconciliation Commission in Jammu and Kashmir. This commission would be tasked with acknowledging and addressing alleged rights violations in the region, indicating a commitment to justice and reconciliation. It should be established as soon as possible.

THE CONCLUSION:

The present decision of the Supreme Court upholding the centre’s decision is not constitutionally correct. It undermines federalism and democratic processes in the region. There should be a collective action to ensure good governance in the region upholding the constitutional provisions.

PREVIOUS YEAR QUESTIONS

Q.1 To what extent is Article 370 of the Indian Constitution, bearing marginal note “Temporary provision with respect to the State of Jammu and Kashmir”, temporary? Discuss The future prospects of this provision in the context of Indian polity. (2016)

Q.2 The banning of ‘Jamaat-e-islaami’ in Jammu and Kashmir brought into focus the role of over- ground workers (OGWs) in assisting terrorist organizations. Examine the role played by OGWs inassisting terrorist organizations in insurgency affected areas. Discuss measures to neutralize the influence of OGWs. (2019)

MAINS PRACTICE QUESTION

Q.1 Critically examine the constitutional implications of the SC judgement upholding the centre’s decision of abrogation of Article 370 of the Constitution.

SOURCE: https://indianexpress.com/article/opinion/columns/supreme-court-verdict-on-article-370-fali-s-nariman-abbrogation-of-article-370-jammu-and-kashmir-9072109/