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Does Scrapping of Art 370 Poses A Threat to Asymmetrical Federalism In India

 The Central government has scrapped the Article 370 of the Indian constitution which was earlier conferring special status to the State of Jammu and Kashmir and the Parliament has also passed the Jammu and Kashmir reorganization bill which seeks to divide the state into two centrally administered Union territories:
1) The Union territory of Jammu and Kashmir with a legislative Assembly and
2) The The union territory of Ladakh without a legislative Assembly.

The imposition of Section 144[2]of CrPC in large parts of the state, including ‘temporary ban of all form of communication: cellular, mobile internet and landline. Leaders of the several mainstream and integrationist parties have also been detained as a preventive detention measure. The recent course of the event by the Union Government in this prolonged disputed has sparked a new debate on the status of the state.

This paper will seek to provide a comprehensive understanding of the:
1. Constitutional History and the process of Accession
2. Exploring the Constitutionality of the recent Presidential order
3. Nature of the Indian Federalism in light of Art.370
4 Conclusion

The state of Jammu and Kashmir had acceded to India in’ unique circumstances’ after independence, thus since from the inception of India as an independent country, it remains an area of discord. Article 370 of the constitution of India was a unique provision which reflects the process of integration of the state into the Union of India. The power of the Indian parliament was limited in respect to the formulation of law to the state of Jammu and Kashmir.

This Article was providing Jammu and Kashmir a separate Constitution and a separate flag with unique identity and autonomy. The state has three parts: Jammu, Kashmir valley, and Ladakh with a population of 1.25 crore[3]. Prior to the Independence of the Country, the state was ruled by a monarchy and Maharaja Hari Singh was the King of the State of Jammu and Kashmir.

The transition of State from monarchy to democracy is a significant event unlike the integration of other states availing the same special status like Manipur, Mizoram understanding the current problem. In writing this research article the author has primarily relied on the doctrinal method of research which focuses on available data on a particular topic. The research is based on the comprehensive and detailed study of the secondary sources, books, case laws, research paper, articles from various journals, Other web sources, and commentaries.

Constitutional History And Accession

The Indian Independence Act divided British India into two parts, the dominion of India and Pakistan[4]. The Princely states were given three option either to join dominion of India or dominion of Pakistan or to remain autonomous. Kashmir’s Maharaja opted to remain independent.

The course of the event changed when the Maharaja of Kashmir eventually signed the instrument of accession with the dominion of India on October 26, 1947. The decision was forced on him by the invasion of tribesmen from Northwest frontier province supported by Pakistan. Maharaja sought help from India, which sought accession in return.

Constituent Assembly And Drafting of Article 370

On May 27, 1949 representative of Jammu and Kashmir joined the Constituent Assembly of India. Article 370[5] was discussed for five months by the Prime minister of India, Jawaharlal Nehru, and his colleagues with the Prime minister of Jammu and Kashmir Sheikh Mohammad Abdullah and his colleagues from May to October 1949[6].

The representatives of the state had negotiated with the Union of India in terms of its membership with the Union. Article 370 records a solemn compact[7].

There is no liberty of any party to unilaterally amend or abrogate it, except in accordance with the terms of provision. N. Gopalaswamy Ayyangar became the chief drafter of the Art.370[8] he tried to reconcile the differences between Abdullah and Patel and after a great negotiations Art. 370 came into the picture. Article 370 embodies four special provisions for Jammu and Kashmir.

These provisions are
Article 370. Temporary provisions with respect to the State of Jammu and Kashmir
(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion The legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948 ;

(c) the provisions of Article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause ( 1 ) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such the decision as it may take thereon

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification[9].

Exploring the Constitutionality of the recent Presidential order.

Whether provision is temporary or permanent?

The government decision of scrapping the special provision of Jammu and Kashmir has posed the question of the temporal nature of this provision. The first answer of this question lies in the debate of constituent assembly where Ayyangar said Till a Constituent assembly comes into being only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangement that exists in the case of the other states.

It is an inevitable conclusion that Ayyangar made it clear that at the present moment we could establish an interim system. Art 306A[10]is one such attempt. The CAD also suggested that any presidential order under Article 370 should necessarily be ratified by Constituent Assembly.

So once the constituent assembly dissolved itself no other presidential order can be passed. The strict reading of the constituent assembly debates all presidential order post-1954 are invalid. The constituent assembly of Kashmir was supposed to sole authority to settle relationship with the Union.

The position of the constituent assembly also upheld by the judiciary in case of Prem Nath Kaul vs.State of Jammu and Kashmir[11].

The nature of the Art.370 was also observed by the Supreme Court in the case of Sampat Prakash v. State of Jammu and Kashmir[12]. that article 370 will continue to be operative and will cease to be operative only if on the recommendation of the Constituent Assembly of the state, the president makes a direction to that effect. In the present context, no such recommendation was made by the Constituent Assembly of the state.

The supreme has extensively discussed the issue of nature of the special status in the case of State Bank of India vs. Santosh Gupta[13]and has reiterated that Jammu and Kashmir enjoys a special position in Union of India for some historical reasons, and though the Art.370 was intended to transitional or temporary has become a permanent feature of the constitution for the reasons mentioned in Art.370(3) of the constitutions that says without the recommendation of the constituent assembly Art.370 can not be abrogated.

In Kumarivijayalakshmi vs UOI Delhi high court distinguished Art. 370 from Article 369 by remarking that temporariness in Article 369 [14]arises from the time limit of five years mentioned in the article in itself.

Presidential Order Is An Instance of Colourable Legislation

The doctrine is based on the maxim that” which cannot be done directly cannot also be done indirectly. Supreme court in the case of K.C.Gajpati vs state of Orissa[15] propounded the doctrine by stating that The idea conveyed by the expression is that although apparently, a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by, what appears on proper examination, to be a mere presence or disguise.

It is evident from the manner in which the executive has abrogated the Art.370 in absence of the consent of Constituent Assembly that the order of president is an instance of colorable legislation. Using the power of the Governor to consent to a presidential order that changes the character of a state is merely an act of subversion of a democratic process which lies at the core of our constitutional scheme. If we go by the notion that the government has tried to show in abrogating Art.370 it means then the people would be governed by laws made by the executive, not the law made by the legislature. The author humbly submits the opinion that this amounts to fraud on the Constitution.

Nature of Indian Federalism In The Light of Article 370

India is not a classical federal state which treats its constituent units equally and provide some guarantee that they will not be treated unequally, and hence, unfairly in relation to each other[16]. The state of Jammu and Kashmir has witnessed this and the states of the northeast [17]like Manipur, Mizoram etc are witnessing the asymmetrical character of Indian federalism, thus the Indian constitution permits the Union to treat some states especially.

In earlier Political science or the scholar who coined the term asymmetrical federalism gave it a negative Connotation, focusing on its secession potential[18], however, in more recent other scholars have given it a positive connotation by considering politics that subscribe to this concept as those which in order to hold together their great diversity in one democratic system had to embed in the Constitution Special cultural and historical prerogatives for some of the member units[19].

The author is in the opinion that the removal of the special status of the Jammu and Kashmir has revealed the fragile character of Indian federalism and also violates the principle of equality [20]as it places the states of similar in nature( all these states signed the instrument of accession) in the unequal position since still the states like Nagaland, Mizoram is enjoying a special status.

Conclusion
The test of time will define the success of the decision of the government despite a lot of hues and cry that this prolonged dispute has been resolved. The international aspects will also come into picture when the USA will withdraw its troops from Afghanistan and Pakistan will be having more say in the matter of Afghanistan due to its support to the Taliban. Whether there is a matter of Constitutionality the ball is in the court of Supreme court that how it interprets the consultation to the constituent assembly. The author is in the opinion that the government should release the mainstream leader and start a political outreach program to connect the people from the core of the nations, as Maulana Abul Kalam Azad said: “ India is always nation in making.”

End-Notes
[1] Art.370, Constitution of India
[2] Section, 144 Criminal procedure code
[3] Census,2011https://www.census2011.co.in/census/state/jammu+and+kashmir.html
[4] Indian Independence Act: An Act to make provision for the setting up in India of two independent Dominions, to substitute other provisions for certain provisions of the Government of India Act, 1935, which apply outside those Dominions, and to provide for, other matters consequential on or connected with the setting up of those Dominions.- .T J18th July 1947.
[5]See supra note.1
[6]A.G.Noorani, Article 370, A Constitutional History of Jammu and Kashmir P.NO-1
[7] A.G.Noorani, Article 370, A Constitutional History of Jammu and Kashmir P.NO-1
[8] See supra note.1
[9] See Provisions of Art.370 Constitution of India https://indiankanoon.org/doc/666119/
[10] Draft Art .of Art.370.
[11] AIR 749, 1959 SCR.
[12] AIR 1970 SC 1118.
[13] See https://indiankanoon.org/doc/105489743/
[14] Article 369, Constitution of India see more-https://indiankanoon.org/doc/1915616.
[15] AIR 1953,Ori 185.
[16] Arun K Thiruvengadam, The Constitution of India, A Contextual Analysis P.NO- 89
[17] Article 371,Constitution of India.
[18] Charles Tarlton,’ Symmetry and Asymmetry as Elements of federalism: A Theoretical Speculation(1965)27(4) Journal of Politics 861-74.
[19] Alfred Stepan, Juan Linz, and Yogendra Yadav, Crafting State Nations ( Baltimore, MD, John Hopkins, University Press,2015).
[20] Art.14,Constitution of India 1950.

Written By: Rajesh Ranjan
IIIrd Semester Student At National Law University Jodhpur

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