Introduction

In my tweets, I have already said that article 370 abrogation judgment was a farce. The judgment has been delivered with explicit bias towards nationalism. Certain presumptions like, “Kashmir is an integral part of India irrespective article 370”, “the objective of Art 370 was national integration, not disintegration”, etc, were made, and then reasons were filled in to achieve the desired results. As an #Anti-NationalHumanist, I am against any nationalist bias in judicial processes, but you can’t do much about it till courts, the instrumentality of state, can’t discriminate concrete reality of state from the abstract notion of nation. In this piece, I am just marking the biases and proposing alternative judgment on the same.

Sovereignty

The court held that the Instrument of Accession (IoA) dt. 26th October, 1947, signed by Maharaja Hari Singh plus the proclamation dt. 25th November, 1949, issued by Yuvraj Karan Singh for Maharaja Hari Singh, reflected the full and final surrender of sovereignty by Jammu and Kashmir, through its sovereign ruler, to India. IoA undoubtedly retained sovereignty. Even the court had to accept it — even though right-wingers would claim IoA per se surrendered sovereignty. But the court found that the proclamation by Yuvraj, however, surrendered sovereignty. However, in an earlier constitution bench judgment, Prem Nath Kaul v. State of Jammu and Kashmir, it was held as follows:

It would be recalled that by the Instrument of Accession these powers have been expressly recognised and preserved and neither the subsequent proclamation issued by Yuvraj Karan Singh adopting, as far as it was applicable, the proposed Constitution of India, nor the Constitution order subsequently issued by the President, purported to impose any limitations on the said legislative powers of the Ruler.

The above was held in answer to the question: Do the provisions of Article 370(1) affect the plenary powers of the Maharaja in the matter of the governance of the State (i.e. Jammu and Kashmir)? This court also being a constitution bench ought to have over ruled the earlier judgment with very good reasons, but it chose to distinguish it by stating as follows:

The limited question before the Constitution Bench in Prem Nath Kaul (supra) was whether the Monarch held plenary legislative powers after the Constitution of India as it applied to Jammu and Kashmir was adopted in the State but before the Constitution of Jammu and Kashmir was adopted. A decision is an authority for the proposition which it decides. The question of whether the State of Jammu and Kashmir retained sovereignty upon integration with the Dominion of India did not arise in that case.

What court is trying to say here is that the sovereignty was surrendered after the constitution of Jammu and Kashmir was adopted, not before that. THIS IS VERY IMPORTANT. The abrogation of Article 370 had the effect of annulment of the constitution of Jammu and Kashmir, and these are not my words. So, does it mean Article 370 abrogation returned the sovereignty to the people of J&K? Let me say this much that the court made the above observation in reference to Prem Nath Kaul (supra) at the end of the discussion to somehow address the earlier law after already having reached the conclusion about the surrender of sovereignty in the following terms:

Paragraph 8 of the IoA provided that nothing in it would affect the continuance of the sovereignty of the Maharaja in and over the State, the exercise of any powers, authority and rights enjoyed by him as Ruler save as otherwise provided by the Instrument and the validity of any law which was in force. With the issuance of the Proclamation, paragraph 8 ceased to be of legal consequence. The Proclamation reflects the full and final surrender of sovereignty by Jammu and Kashmir, through its sovereign ruler, to India.

The above discrepancy in the judgment is the first marker of the bias. The correct judgment should have been that it was the people of Jammu and Kashmir through the constituent assembly, not Maharaja or Yuvraj, who surrendered the sovereignty to India, by stating in the constitution of Jammu and Kashmir itself that Jammu and Kashmir was the integral part of India (subject to the provisions of Art 370 of the Constitution of India).Though this would leave the question open that whether the constituent assembly was the true representative of the will of the people or should have they expressed their will through the plebiscite which had been promised to them by India.

Article 370 of Indian Constitution

There was lots of discussion in the judgment on the character and purpose of article 370. The court held that it was a temporary, special provision, and its purpose was to integrate Jammu and Kashmir with India in a calibrated manner, addressing Jammu and Kashmir’s special and unique circumstances. On the basis of the above, the court held that article 370 abrogation served the purpose of fully and finally integrating Jammu and Kashmir with India. Therefore, the actions of the President of India, including the annulment of the constitution of Jammu and Kashmir, were mostly upheld.

Article 370 had three important objectives, for which three declarations were made in the article.

First Declaration in Article 370

The first declaration was that article 1 and article 370 applied to Jammu and Kashmir. The important point to note here is that even though Jammu and Kashmir was included in the states mentioned in article 1, yet it was found necessary to state in article 370 that article 1 applied to Jammu and Kashmir. The court held this to mean that the declaration under article 1 that Jammu and Kashmir was part of Union of India was irreversible.

I have completely failed to understand the logic behind such an interpretation. To me, article 370 by making such a statement makes inclusion of Jammu and Kashmir in article 1 tentative and subject to article 370, and this is my alternative judgment on this point.

Second Declaration in Article 370

Secondly, article 370 laid out the rules for extension of the law making power of the Indian parliament and the constitution of India to J&K. It laid out that those subjects which were included in IoA required consultation and, those which were not, required concurrence of the government of J&K for extension of law making power of the Indian parliament to J&K with respect to the respective subjects. Similarly, the extension of the provisions of the constitution of India required concurrence of the government of J&K. It was also provided that the concurrence was tentative subject to the final decision of the constituent assembly of J&K. In other words, the will of the people expressed through the constituent assembly was necessary for extension of law making power of the Indian parliament and the constitution of India to J&K.

Most of the constitutional orders (COs) extended the law making power of the Indian parliament and the constitution of India to J&K through presidential orders with concurrence of the government of J&K. These were the orders passed after dissolution of the constituent assembly of J&K. Article 370 was initially included under the caption of ‘Temporary and Transitional Provisions’ under the constitution of India. It was so done because the tenure of the constituent assembly was limited and article 370 was expected to either be abrogated or be modified on the recommendation of the constituent assembly, on or before the dissolution of the constituent assembly.

The constituent assembly, interestingly, dissolved without making any recommendation except the one that the government of J&K, which earlier meant person recognized by the president as mahraja of J&K acting on the aid and advice of the council of ministers, would thenceforth mean the person recognized by the president as sadar-i-riyasat on the recommendation of the legislative assembly of J&K. Basically, it took away the power of the president to unilaterally recognize the government of J&K.

An issue came before another constitution bench in Sampath Prakash v. State of Jammu and Kashmir that whether the COs issued by the president were ultra vires the power of the president under Article 370(1) after the dissolution of the constituent assembly. This basically meant that there was no mechanism to express the will of the people after dissolution of the constituent assembly as the government per se doesn’t express the will of the people. Therefore, the constitution of India and the law making power of the Indian parliament could no more be extended to J&K.

The court held that article 370 was no more a temporary provision after the dissolution of the constituent assembly. It basically held that the constituent assembly, by not recommending anything, expressed the will of the people of J&K that Indian parliament through its president may extend its law making power to J&K and that the president may also extend the constitution of India to J&K in perpetuity, by mere concurrence of the government of J&K.

The same question that whether article 370 was a temporary or a permanent provision arose before this constitution bench as well. It altered the question altogether to mean that whether the constituent assembly of J&K had unbridled power to alter the constitutional integration of J&K with UoI (by altering article 370) and whether the government of J&K could have withheld its concurrence on important COs like extending fundamental rights to the state of J&K. The court, of course, answered the above questions in negative on the basis of presumption that the objective of article 370 was to integrate J&K to UoI. Of course, this is a bias of nationalism.

With respect to Sampath Prakash (supra), it held that the question answered by the earlier bench was not whether the power under article 370(3) could be exercised by the president even after dissolution of the constituent assembly, which was the question arising in the petition under consideration. Article 370(3) literally intrepreted requires recommendation of the constituent assembly of J&K for the president to abrogate article 370. However, the present article 370 abrogration was done by the president unilaterally without any recomendation of the constituent assembly of J&K. So, the court distinguished the earlier judgment by stating that earlier the president didn’t go to the extent of abrogating article 370, and it upheld the power of the president to abrogate article 370 without the recommendation of the counstituent assembly of J&K because whatever J&K had was only a concession, not soveriegnty.

Drawing an analogy it would mean that Sampath Prakash held that a man who was raping his wife with the consent of her parents could do so perpetually after the death of her parents if they didn’t stop him from doing so before death. But the question now is whether a man could just enslave the same wife after the death of her parents and obviate the question of could rape or could not rape. The court held that the man could do so because he is the man and wife is anyways his slave by the order of society.

This is the most ridiculous reasoning I have found in the judgment. I am surprised something as silly as this could be written in the judgment. In my tweets, I have said this is a judgment as bad as Ram Mandir judgment with a difference that the Ram Mandir judgment was at least better chicanery.

This time, my alternative judgment is not even Sampath Prakash (supra). I would rather opine that the inaction of the constituent assembly in not recommending anything with respect to article 370 before its dissolution was a fraud played upon the people of J&K. Therefore, a new constituent assembly should be constituted or plebscite should be held giving direct decision making power to the people of J&K.

Third Declaration in Article 370

Thirdly and most importantly, article 370 gave the power to the constituent assembly to abrogate Article 370 altogether or to modify it. The question whether article 370 could now be abrogated or modified when the constituent assembly has ceased to exist had already been answered in Sampath Kumar (supra) by calling article 370 permanent. UoI acted clever-by-half by surreptitiously introducing an amendment to article 370(3) through article 367 vide CO 272. The amendment substituted ‘legislative assembly’ for ‘constituent assembly’. This was followed by passing resolutions in lok sabha and rajya sabha recommending article 370 abrogation. And this was further followed by passing of CO 273 by the president of India abrogating article 370.

These resolutions in lok sabha and rajya sabha were substitutes for the recommendation by the legislative assembly of J&K during president’s rule, which legislative assembly, as stated above, was itself a substitute for the constituent assembly of J&K. This is like a cop first imprisoninf young kids, then writing children park outside the prison, and then finally declaring himself to be the guardian of the kids.

This was not the only method adopted by UoI to abrogate article 370. It also extended all the provisions of the constitution of India to J&K vide CO 272, after seeking concurrence of the union government instead of the state government during president’s rule, which, as held by the court, was equivalent to article 370 abrogation.

Let us see how the court upheld these COs. Well…the court didn’t allow the prison to be called children park, but allowed everything else including the appropriation of the guardianship by the cop. The court quashed the amendment of Art 370(3) substituting ‘legislative assembly’ for ‘constituent assembly’. But, it allowed extension of the whole of the constitution of India to J&K on the premise that the president didn’t require the concurrence of the state government to extend the constitution of India to J&K anyways; so, there is no mala fide in taking the concurrence of UoI (on behalf of the state government). Thus CO 272 was upheld.

Further CO 273 was also upheld again on the same premise that president didn’t require the recommendation of the constituent assembly anyways to abrogate article 370 (therefore, the amendment substituting ‘legislative assembly’ for ‘constituent assembly’ was useless and irrelevant). And, to the question of exercise of power by the president abrogating all other clauses of article 370 except article 370(1), which has been amended to state that the whole of the constitution of India applies to J&K, was mala fide, the court stated that the effect of previous COs for last seventy years had been to integrate J&K with UoI and CO 273 only culminated that process of integration; therefore, it can’t be called mala fide.

But, to me, everything that has been done to J&K from IoA signed in 1947, to various COs issued over seventy years, to its full and final acquisition in 2019, to the corroboration of the acquisition by the supreme court in 2023, is mala fide.

Conclusion

In my tweets, I have said it is very difficult to separate law from politics, but when the question involved is that of nationalism, there is not even a need to create an illusion of application of law. Of course, I reiterate it here. The article 370 abrogation judgment is the perfect example of such an application of politics in law.