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KASHMIR ACTION FACES TOUGH SUPREME COURT CHALLENGE
By K Raveendran
The noise over Citizenship Amendment Bill (CAB) has turned public gaze away from the otherwise crucial hearing of the petitions challenging the Presidential orders issued under Article 370 of the Constitution, which revoked the special status of Jammu & Kashmir.
The five-member bench comprising Justices NV Ramana, Sanjay Kishen Kaul, R Subhash Reddy, BR Gavai and Surya Kant has set the ball rolling on perhaps the most epochal case after the Ayodhya dispute and there are already indications of high drama.
The crucial question before the court is whether Parliament can exercise the powers of the constituent assembly for the state by taking over the functions of the state legislature, which does not, however, have the powers vested in the constituent assembly. Unfortunately, the constituent assembly ceased to exist after J&K formally became part of the Indian Union.
The abrogation of Article 370 alters the terms of J&K’s accession to India, as it supersedes the Constitution (Application to Jammu and Kashmir) Order, 1954 and states that all the provisions of the Constitution of India shall apply to the State of Jammu and Kashmir, which means the special status conferred on the state under Article 370 stands cancelled.
It is true that by imposing President’s Rule the Centre has enabled Parliament to legislate on behalf of the assembly, but ratifying a change in the relationship between the Indian Union and the special status Jammu-Kashmir is beyond the scope of legislating. That is where the Centre’s arguments are likely to flounder.
The Centre has by implication upgraded the character of the state assembly to that of a constituent assembly, but the action is not backed by legal authority.
Senior counsel Raju Ramachandran, arguing on behalf of one of the petitioners wondered whether the mechanism for altering the relationship between J&K and the Union can be flouted when the mechanism itself is prescribed by Article 370.
He questioned the propriety of using the temporary, ameliorative and restorative power of President’s Rule to bring about an irreversible change in the federal relationship between a state of the Union and the Union and insisted that the Presidential proclamation was violative of the Constitution.
The thrust of his argument was that any change in the relationship has to be ratified by the people of the state. “The recommendation implies that a proposal to alter the constitutional arrangement must emanate from the people of J & K through their then-existing Constituent Assembly. The Union Executive has the power to issue a notification only upon such recommendation…there is no role of the Union Parliament!”
He argued that the existing constitutional arrangement as in 370 cannot be touched by the legislature of J & K. It can be changed only in the way envisaged in 370 itself, which is in the hands of the Constituent Assembly. “Now the work of the Constituent Assembly is done and dusted and the state legislature cannot do anything. That is the purport of the section”, he asserted.
He made out a strong case that Parliament was trying to exercise more power under article 356 than what the J&K assembly possessed. The assembly had no constituent power to alter the state’s relationship with the Union. How can Parliament, acting on behalf of the state legislature, exercise powers the state assembly did not possess, he wondered.
That is a solid argument. President’s Rule allows Parliament to exercise only those powers which are available to the state Legislature. There is no scope for anything more. In fact, what President’s rule does is to put the Governor in charge of all that was the responsibility of the assembly. But then the Governor cannot act as a representative of the Centre and at the same time represent the state legislature.
In effect, the state has utilised a temporary power under the garb of President’s rule to make irreversible changes to the federal relationship which exists between the state and the Union without the participation of the elected government in power, thereby altering the structure of the state and splitting into two. It calls into question whether article 370 has the mechanism for alteration of the relationship and whether the same can be flouted to make such changes.
This amounts to challenging the Centre’s authority to make such drastic changes to a state under the guise of a temporary power due to President’s rule.
The government had been making meticulous planning in the background to prepare the ground for the landmark decision. There has been a war-like mobilisation in J&K, camouflaged by a step-up in security drill in the wake of heightened incursions from across the border. Evacuation of tourists, cancellation of Amarnath Yatra due to perceived Fidayen terrorist threats, massive detailing of para-military forces and promulgation of prohibitory orders, including suspension of internet services, pointed to increased tension. Preventive detention of political leaders completed the picture.
When the government announced that the parliament session was being extended to transact ‘important’ businesses, attention was mostly focussed on the bill to amend the Right to Information (RTI) Act and the long-delayed triple talaq bill. Nobody had any inkling about such a Kashmir quake waiting to happen.
Perhaps it was the most opportune time for the government to go for the kill. The Opposition had been total disarray, with a ‘rudderless’ Congress losing its orientation while the other parties saw a trend of attrition in their ranks. The passage of the RTI amendment and triple talaq legislations exposed chinks in the Opposition armour and it became clear that the NDA floor strategy was working well. (IPA Service)