Jammu and Kashmir - Whether Hon. Supreme Court will accept smart and fast decision of Govt. ? : Adv. Rohit Erande. ©

Now the J&K issue shall be decided by Hon. Apex Court .

Adv. Rohit Erande

Pune.  © 

In the historic and what it is called as courageous decision of Modi Government, #Art.370 & #Art.35-A have been abrogated or in other simpler words J&K is now covered by Indian Constitution. Previously  J&K was the only state having separate Constitution, separate Flag. Even though Modi govt. has succeed in Rajasabha and will Succeed in Loksabha too, the matter will be finally settled in Hon. Apex court. 

The Govt. called it as 'quick and fast' decision and the opposition is calling it as 'hasty' decision. The Art. 370 was inserted as  a "temporary provision" in the year 1950 by the Presidential order, but it lasted for almost 70 years and as an addenda thereto Art.35-A was inserted in 1954 by another Presidential order which gave power to J&K Govt. to decide who are its permanent citizens and it precluded any other persons than permanent citizens from holding property in J&K.

Lets see in brief what are the legal objections and how they will be dealt in hon. Supreme Court.

1. Art. 370(3) itself gives power to Hon. President to revoke Art.370 or to dilute its application with such "Modifications". The rider here is that for the said purpose, recommendation of J&K assembly is necessary. This will be the main ground of challenge in Hon. Apex Court as to whether this provision has been followed or not. It has two aspects or arguments as the Scholars would argue.

2.  The Govt. has played a very smart move. As it could not directly repeal Art.370, it amended Art. 367. It stated that since there is no Constituent assembly in function, all its decisions are being taken by the the Governor as per new amended provisions of Art.367(4). It provides for important changes  that reference to the Govt. of J&K and reference to Sadar-i-Riyasat  (elected head of State) shall be construed as a reference to Governor of State of J&K. It also made pivotal amendment in Art.370 and stated that reference to "Constituent Assembly of J&K" shall mean Legislative Assembly of J&K. 

3. Now the Govt. has come out of the clutches of Art.370 smoothly and of course it will be challenged. Now the hon. President issued a Order, since there is no legislative assembly in power, there is a presidential rule and all the functions of assembly are vested in Governor, his assent has been obtained as envisaged under Art.370(3). Let's hope it's not declared as colorable exercise of power..

4. However some legal experts have two opinions on it. It's been said that it would be a misnomer to say that Art.370 has been abrogated, but it's been amended. In the famous case of Puranlal Lakhanpal V/s. the President (AIR 1961 SC 1519), the Constitutional Bench of hon.Supreme Court held that the word "modification" under Art.370(3) must be given the widest meaning and word "modification" means partial alteration too. The Interpretation of this Judgement will be again the crux of the matter.

5. In comparatively recent judgement of Hon. Apex Court in the case of State Bank of India V/s. Santosh Gupta (2017) 2 SCC 538, it was held that SARFAESI Act is applicable to State of J&K and it's been observed that Art.370 is in usage till today and it can be abrogated only when specified event in art.370(3) will take place. However in my humble opinion, this judgement has been wrongly interpreted by some to mean that Art.370 has become permanent and it cannot be abrogated at all

6. Reliance is also placed in the case of Samapat Prakash V/s. State of J&K , (1969) 2 SCR 365, wherein the Constitutional bench held that Art.370 shall cease to have its effect when J&K Constituent Assembly shall give its consent. The Constituent Assembly of J&K was dissolved long back in the year 1954 or so. Now whether the policy applied by the Govt. while dealing with art.370 is  a smart legal move or it's a mischief in terms of law will be decided by Hon. Apex Court.  

7. Fundamental rights : One more argument against abrogation of Art.370 is that it shall affect fundamental right of the J&K residents and this decision of Govt. will not be able to withstand the Basic Structure Doctrine laid down in Keshavanand Bharati case. But to counter that it's been said that, the provision was temporary so as to affect fundamental rights and moreso as Indian Constitution is made applicable to J&K, fundamental rights guaranteed therein are also automatically made applicable.

8. Whether Art.368 will be applicable ?

One more argument challenging the Govt. decision is whether provisions of amendment of Constitution as envisaged under Art.368 will be applicable ? Whether Art.370 was temporary of not, it was a constitutional provision and thus its abrogation or alteration will attract Art.368. But against that it's been said that power to amend Art.370 has been envisaged in that article itself and thus Art.368 will not be applicable and even if it is presumed that it is applicable, then the Govt. has the required 2/3rd majority to pass it.  Previously also the Govt. easily pass constitutional amendment which allowed 10% reservation on to economically weaker class, to come out of the clutches of  Indra Sawhney judgement. In the said judgement the contention of giving reservation on Economic condition was rejected since there was no such provision in the constitution. 

9. In recent years if we see the important judgements of  the Hon'b'e Apex Court like Sec.377 of IPC, Adultery-Sec.497, Shabrimala,  Right of privacy etc., the trend is  to go with the changed circumstances. Let's wait and watch now and see what Hon'ble Apex Court decides, whether it accepts the smart and fast decision of the Govt. or brush it aside as colorable legislation ?. 

Thanks and Regards,

Adv. Rohit Erande

Pune.  ©