LEGAL ISSUES IN THE REVOCATION OF J&K SPECIAL STATUS: AN EXPLAINER

-Devapreeti Sharma |

India today is riveted on the recent revocation of the special status of Jammu and Kashmir (“J&K”). Opinions on the move are divided. One thread of opinion lauds the Government for what it believes has resulted in the full integration of India. Another thread condemns the Government for what it believes has amounted to a violation of Indian constitutional ethos. The fall-out of this move has also attracted international attention. Thus, J&K currently represents a vacillating zone of national and international laws, demanding a nuanced legal appraisal independent of political, cultural, strategic and socio-economic motivations.

Any legal account of the special status of J&K must begin with the philosophical undercurrent of ‘asymmetrical federalism’ permeating through the Constitution of India. At a conceptual level, asymmetrical federalism denotes a rational bargain of unequal distribution of powers between different units of a common body politic. In 1947, the newly formed Indian nation-state represented a major asymmetry between Princely States and British India, wherein the integration of the former depended on their relative bargaining strength. All but one princely states gave up their sovereignty in exchange for a guaranteed stream of revenue called the ‘privy purse’ (which was later abolished by 26^th Constitutional Amendment in 1971). The sole exception was J&K which, historical reasoning apart, successfully brokered for itself a unique position limiting the Centre’s jurisdiction in the state to foreign affairs, communication and defense alone – a position recognized by the erstwhile Article 370, granting to J&K its ‘special status’. This special status was revoked using four legal instruments – 1) Presidential Order C.O. 272 dated 5^th August; 2) a Statutory Resolution introduced in the Rajya Sabha on 5^th August; 3) Jammu and Kashmir Reorganization Bill, 2019; and 4) Presidential Order C.O. 273 dated 6^th August. Another point worth noting is that J&K has been under Presidential Rule since 19 December, 2018. This, in three carefully calculated steps, played a crucial role.

At Step 1, is the Presidential Order C.O. 272, issued under Article 370 itself. Under the Article 370 (as it stood before its recent amendment), the President could issue Orders for J&K but only upon the recommendation of the J&K Government. However, C.O. 272 was recommended in fact by the J&K Governor, since during a President’s Rule, the powers of a state government devolves on its governor. Now, C.O. 272 amended Article 367 (which contains various tools with the help of which other provisions of the Constitution are interpreted) by adding a new provision – that the words ‘Constituent Assembly’ appearing in Article 370had to be understood as referring to the J&K ‘Legislative Assembly’.This was done because Article 370 contained a procedure for its own amendment. It mandated that in order for this Article itself to be amended, a recommendation of the Constituent Assembly of J&K was necessary. Thus, the effect of C.O. 272 was that an amendment to Article 370 itself required the recommendation the J&K Legislative Assembly. At Step 2, there is Presidential Order C.O. 273 accepting a recommendation of amending i.e. abrogating much of Article 370. Following the effects of C.O. 272, this recommendation should have come from the J&K Legislative Assembly, but it in fact came vide the Statutory Resolution (again, due to the President’s Rule wherein the powers of a state legislature devolves on the Parliament). At Step 3, the Parliament also approved the J&K Reorganisation Bill, which bifurcates J&K into two Union Territories. All of this was done simultaneously with the deployment of troops and communication lock-out in the state – which is permissible for the purposes of maintaining security and public order. Thus, formally, the moves were and continue to be within the bounds of legality.

Prima facie attribution of formal legality however, does not, by itself negate all challenges to it. Firstly, it is argued that the move at Step 1 i.e. C.O. 272 itself is illegal since this Order, by amending Article 367, indirectly amended Article 370 and therefore violated what is called the ‘Doctrine of Colourable Legislation’. This doctrine mandates that one cannot do indirectly what one cannot do directly. Secondly, this Order was made under the recommendation of not the J&K State Government (as required) but under that of the J&K Governor. Furthermore, there are assertions of mala fides, given the circumstances in which the moves were made. Since a petition has been instituted in the Supreme Court, it now upon the Judiciary to decide on the merits of these arguments alleging illegality. If the first step through C.O. 272 were adjudged illegal, then, the steps following it would inevitably become void.

In any event, J&K will have long-term implications for India, for better or for worse. Such implications will be of particular importance for North East India since they, among other issues, also raise the question of the Centre’s legal ability (notwithstanding its political willingness) to unilaterally revoke the special rights enjoyed by the NE states under Article 371.