Author: Arvind Lavakare
Publication: Rediff on Net
Date: June 5, 2002
URL: http://www.rediff.com/news/2002/jun/05arvind.htm
While the separatist psyche generated
in Jammu & Kashmir by Article 370 has been pernicious, its constitutional
effects have been perverse -- an aspect which no one, it appears, has detected,
leave alone debated.
But even scrapping Article 370 does
not require Parliament's consent! Clause (3) in the article says, "Notwithstanding
anything in the foregoing provision of this article, the President may,
by public notification, declare that this article shall cease to be operative
... Provided that the recommendations of the Constituent Assembly of the
State ... shall be necessary before the President issues such a notification."
Note that the President's order abrogating Article 370 doesn't need the
sanction of a parliament democratically elected by the people of India
but demands the push by a J&K institution that's been moribund since
the first state assembly election took place in 1957! Can anything be more
absurd in the constitutional working of any self-respecting nation?
Start off with the fact that reportedly
the longest constitution in the world -- ours -- is not exhaustive enough
to show the whole constitutional framework of the Indian nation. This is
not an irresponsible statement.
Buy a standard book on the Constitution
of India and you will find that the constitution of J&K state is not
mentioned in it although, it will be recalled, such a separate constitution
was enacted on November 17, 1956, because the state was entitled to it
under the terms of the Instrument of Accession. The absurd result is that
the lay Indian reading his national constitution will not know just what
its relation is with the state that is 'an integral part' of his country.
Next, a note of 'explanation' in
Article 370 says, 'The Government of the State (of J&K) means the person
for the time being recognised by the President as the Maharaja of Jammu
and Kashmir acting on the advice of the Council of Ministers...' Since
the J&K Constituent Assembly abolished hereditary rulership in 1952,
what, pray, is the 'maharaja' doing in the Constitution of India in 2002?
A constitutional counsel will stand
up and say the 'maharaja' was replaced by 'sadar-i-riyasat' in a presidential
order issued under the mandate of Article 370. True, but how can the 'sadar-i-riyasat'
be acceptable to the reader in 2002 when there is no such authority but
only its equivalent, viz the state governor? Another expert will then tell
you that in November 1952 the word 'governor' did, in fact, replace the
phrase 'sadar-i-riyasat'. Fine, but why doesn't 'governor' figure in Article
370 of our Constitution that's read in 2002? And do you know who issued
that order of replacement? It was the ministry of law! Which country allows
a major dignitary of state to be re-named in its constitutional document
by a mere bureaucratic fiat?
There's more -- and it's not cosmetic.
Under Article 370, the President has issued, by last count, 43 orders,
each known as 'The Constitution (Application to Jammu & Kashmir) Amendment
Order'. Some of them have brought about significant changes in certain
provisions of the Indian Constitution in their application to J&K.
The list is too long to be detailed here, but the following are two examples
from the order that repealed the one of 1950 and came into effect from
May 14, 1954:
* An addition to Article 3 specifying
that 'no Bill providing for increasing or diminishing the area of the State
of Jammu & Kashmir or altering the name or boundary of that State shall
be introduced in Parliament without the consent of the Legislature of that
State'.
* Addition after Article 35 of a
new article providing that none of certain specified laws pertaining to
J&K's 'permanent residents' (defined in section 6 of the state constitution)
shall be void on the ground that 'it is inconsistent with or takes away
or abridges any rights conferred on the other citizens of India by any
provision' of the Indian Constitution's Part III dealing with fundamental
rights.
Do you know that both these far-reaching
exceptions to the country's constitutional framework just do not figure
in the officially published Constitution of India? In fact, none of the
contents of the said 43 constitutional orders of the President form part
of the official Constitution. Why? The answer will stun you.
In July 2000, this writer purchased
The Constitution of India with selective comments by P M Bakshi, a former
member of the country's Law Commission. It was the book's fourth edition,
published in January 2000 by the reputed firm of Universal Law Publishing
Co Pvt Ltd, New Delhi. I wanted to understand the constitutional procedure
for bringing about the much talked about demand for trifurcation of J&K.
Actually, I was seeking corroboration
of what Dr A S Anand, a former chief justice of India, had stated in the
1998 edition of his book on the J&K constitution. He had mentioned
that, with respect to Article 3 of the Constitution of India, 'the status
of J&K markedly differs from that of the other states. In the case
of other states,' he wrote, 'only the views of their legislatures are ascertained
by the President before recommending introduction of a Bill relating to
these matters [of altering the boundaries or name of a state], but in the
case of Jammu & Kashmir no such Bill shall be introduced unless the
legislature of the state consents.'
Imagine my shock when Bakshi's book
did not show the above exceptional provision mentioned by Justice Anand.
A letter to that effect was sent to Universal Publishing. The reply dated
July 15, 2000, of a director of Universal Publishing was unbelievable.
It said: 'No change can be made by us in Article 3 of the Constitution,
as parliamentary amendment is necessary for amending it. It has been taken
from the Constitution of India published by the Government of India. Article
3 in our book is OK.'
A little reflection brought home
the above reply's horrifying revelation: the exception to the article mentioned
at 1 above had NOT been approved by the country's Parliament! An examination
of the 43 constitutional orders issued by the President showed that none
of the changes/exceptions made for J&K by orders in his name find a
place in the official Constitution of India -- not even in the March 2002
economy edition of Bakshi's book. Clearly, none of them had been approved
by Parliament.
Clearly, what had transpired was
that each ruling government in Delhi had simply dealt with the ruling regime
in Srinagar and brought about orders signed by the President of India under
Article 370(1)(d) that permits him to specify 'exceptions and modifications'
in the provisions of the nation's Constitution in their application to
J&K. And all these exceptions and modifications have been in vogue
without a green signal from Parliament. In effect, the great, supreme Parliament
of India has been hijacked for 50 years and more!
The horror is not over, readers.
The first sentence of Article 368(2)
says, 'An amendment of this Constitution may be initiated only by the introduction
of a bill for the purpose in either House of Parliament...' But the President's
Constitutional (Application to Jammu & Kashmir) Amendment Order, 1954,
added the following to Article 368(2): 'Provided further that no such amendment
shall have effect in relation to the State of Jammu & Kashmir unless
applied by order of the President under clause (1) of Article 370.'
What those 30 words above were doing
was to amend Article 368 titled 'Amendment of the Constitution'. And it
was being done under the seal of the President without invoking Parliament
in any manner whatsoever -- in violation of what has specifically been
demanded by the above-quoted clause of this Article itself.
Was that action constitutionally
correct? NO! Under Article 368(2)(e), any amendment seeking to make a change
in Article 368 itself requires not only the commonly known two-thirds majority
in each of the two Houses of Parliament, but 'shall also require to be
ratified by the legislatures of not less than one-half of the states by
resolution to that effect passed by those legislatures before the Bill
making provision for such amendment is presented to the President for assent'.
Was the amendment to Article 368
made for J&K by the President's constitutional order of 1954 based
on the above-stipulated ratification by the required number of state legislatures?
NO! It was, instead, issued exclusively under Article 370 and was therefore
a gross constitutional impropriety. In fact, all the 43 constitutional
orders must be deemed unconstitutional because they were, as seen earlier,
not based on parliamentary approval. It is conspicuous that this constitutional
amendment of Article 368 by a presidential order is not in the list of
recorded constitutional amendments of 50 years from the first one in 1951.
Seeking refuge in the power given
by Article 370 to the President (acting on the advice of his Ccouncil of
Ministers) to make constitutional exceptions is itself unconstitutional
because Article 370 is applicable only to J&K while 'Article 368 (Power
of Parliament to amend the Constitution and procedure thereof)' is a much
larger and more supreme provision. If Article 370 overrides Article 368
-- as it has done in the last 50 years -- it must be altered or, better
still, scrapped.
Sadly, the National Commission to
Review the Working of the Constitution didn't have either the capability
to understand the position or the courage to recommend what it should have:
abrogation of Article 370 or, in the least, its dilution so as to return
to Parliament the constitutional supremacy it merits. After its go-by to
a definition of secularism and the enactment of a uniform civil code, Article
370 thus became the NCRWC's third failure.
