Modi-Shah surgical strike on Article 370 exposes Constitutional flaw

Narendra Modi Amit Shah - The Federal
Prime Minister Narendra Modi and Home Minister Amit Shah in New Delhi. (PTI Photo)

Finally, the BJP has had its way in doing away with Article 370 of the Constitution which gave special status to the state of Jammu and Kashmir. More than the act of neutralising the contentious piece of legislation that was part of the Indian Constitution for seven decades, the manner in which it has been done raises questions over the robustness of the scheme and whether, all along, it was this easy to knock it off the statute books.

For, all along, legal experts and analysts had said Article 370 could be abrogated only through an amendment to the Constitution. It was Article 35A that alone could be cancelled through a presidential order. But, on Monday, the BJP-led Central government simply did away with the entire Kashmir package using a presidential decree.

While the jury is out on whether the action can stand judicial scrutiny if it is challenged, on the face of it, the government interpreted key provisions of the Article 370 to its advantage to make this move. Though Article 370 was meant to be temporary and transient, its removal could be facilitated only through the permission of the Kashmir Constituent Assembly. The Supreme Court therefore ruled in a 2016 case that it had in reality become a permanent feature as the state’s constituent assembly was no longer in existence.

Also read: Jammu and Kashmir re-organisation bill passed in Rajya Sabha

But, Prime Minister Narendra Modi’s government interpreted the constituent assembly to mean the legislative assembly. Further, since the state is under Central rule and all powers of the Assembly are vested with the President under Article 356 of the Constitution, he could exercise his right in lieu of the Assembly and issue the order abrogating Article 370.

The issue is whether such interpretations are valid in law, and whether it passes the constitutional test of validity. The answers to this can only be known if the action is challenged in court, which is bound to follow from some quarter or the other.

Now that the BJP has managed to circumvent the requirement of a constitutional amendment in the case of Jammu and Kashmir, will it try something similar to fulfill its other long-standing aims — of bringing in the contentious uniform civil code and the construction of the Ram temple in Ayodhya?

The BJP progenitor Jan Sangh and its mentor, the RSS, have ever since independence questioned Article 370 and opposed it vehemently on the grounds that it prevented the integration of Kashmir into the Indian Union. Modi, as an activist, and his associate, Home Minister Amit Shah, have in the past been part of the clamour to delete Article 370 from the Constitution.

Also read: Explained: Article 370 gave special powers to Jammu and Kashmir

Now that they are in office and in a comfortable majority, they have gone ahead with it, daring the opposition or anyone else to challenge their move.

The irony is that while the retention or deletion of 370 has been bitterly fought in the country’s political space in Kashmir, it has not had any direct role to play in the state’s tumultuous history and the almost relentless violence that people in the Valley have suffered over the last seven decades.

How will the abrogation of Article 370 make a difference now to the situation in Kashmir? Will violence come down? With the state being downgraded to  a Union territory (despite the provision of a Legislative Assembly) and Delhi being in control, can the narrative be changed to bring peace to the Valley?

The logical answer is that this alone cannot usher in peace as in the first place, it was not Article 370 that was the cause of the violence, unrest and bloodshed all these years. If at all, the Article 370 was a consolation that the architects of the Constitution provided to Kashmiris as an incentive to make their accession to India comfortable and win their emotional support.

Also read: Modi’s bold decision to scrap Article 370 can lead to chaos, Constitutional crisis

The violent opposition to Indian accession has come from a section of Kashmiris who either wanted the state to remain independent or go  with Pakistan. They have undoubtedly been helped by the Pakistani state, its infrastructure and separatists groups that have used the feeling of disenchantment of a section of people  to foment trouble, uprising or at worst, an insurgency.

The insurgency-type situation has resulted in a huge number of Indian security forces being stationed in the troubled state. Along with this, the central government over time has attempted to implement democratic rule, elections and bring in an element of normalcy. This has worked sometimes (for instance, the period 1971-89) and again post-2001 until about five years ago, when violence again started to rise.

That it has been possible for Delhi to work with Kashmiris is because a large section of people there including mainstream political parties, influential families and the intelligentsia still identify with India. The howl of protests from these groups over the last few days over news that Article 35A may be abrogated indicate its importance in Kashmiri perception.

Internationally, India historically was able to muster up support both politically and morally because the world saw that Delhi was sensitive to Kashmiri aspirations and had placed the state in a unique position within the Indian political firmament, through Articles 370 and 35A of the Constitution.

Also read: Article 370: Silence in Kashmir, shock and awe in Pakistan

On Monday, the Modi government in a dramatic move not only removed just Article 35A, it knocked off the overarching Article 370 and diluted the status of the state to a Union territory.

What effect will this have on Kashmiri perceptions towards India? Has India lost the edge politically and morally as far as international opinion is concerned?

If these are some of the immediate questions that come to mind, the government’s move is replete with various other possibilities including the robustness of the Indian constitutional framework given that the entire operation to abrogate Article 370 was carried out in such a seemingly facile manner with hardly any resistance to speak of.