Soli Sorabjee: Abrogating Article 370 is constitutional, detaining leaders disturbing
No law can successfully operate unless there is popular consensus and unless it is passed after wide consultation.
With the abrogation of Article 370, Jammu & Kashmir ’s special status within the Union of India has ended. Since Article 370 was a temporary provision, as indicated by the marginal note, I don’t think it was unconstitutional to repeal it. It was not an essential feature of the Constitution and not part of the basic structure of the Constitution and hence was not beyond amendment.
Those interpreting past Supreme Court judgments as ruling that Article 370 is a permanent provision must understand that every judgment is to be read and understood in the context of the facts and circumstances of a particular case. There’s nothing illegal about integrating J&K as part of Union of India by revoking Article 370.
But detaining political leaders such as National Conference’s Omar Abdullah and PDP’s Mehbooba Mufti, among others, is very disturbing. Preventive detention cannot be used to curb dissent and jail dissenters. Preventive detention should be used in circumstances where the authorities are genuinely satisfied that those involved will indulge in activities that will create disturbance of public order. Of course, those detained can go to a court of law but it would be much better if the government realises the futility of what they have done and revokes the detention orders.
As far as the interpretation (as described in Article 367) of certain clauses is concerned — that Constituent Assembly means the State Assembly of Jammu and Kashmir and since Jammu and Kashmir is under President’s Rule, all powers of State Assembly vests with Parliament — it is correct. To say that the President has exceeded the confines of power to use Article 370 (1) (d) is also not correct since once he is vested with the power and once he exercises it, that is the end of the matter.
There are questions whether such a crucial change can be carried out when Governor’s Rule is in place and whether it is violative of the spirit of federalism. Remember that this is only an interim measure. Elections will, of course, be held. One must not extrapolate and infer that the Centre might now use the similar provision in other states. You can’t compare J&K with other states. Everything depends on the facts and circumstances prevailing in that particular state. J&K can’t become a binding precedent for all the states for all times.
Another key question is whether an interpretative clause can override the meaning of the actual provision. Can Article 367(4)(d) [that says Constituent Assembly must be read to mean J&K Assembly] override Article 370(3) [that the President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State]? I don’t think it amounts to overriding the provision. It is a question of interpreting a provision in such a way that the effect is the same as overriding it. Whether the interpretation is right or wrong is a different matter and is for the courts to decide.
I believe there should have been a wider consultation with the representatives of the people of J&K. Political leaders should not have been detained. They are not criminals. This was a very hasty action and I hope the authorities will revoke the preventive detention. The state of J&K has been split into two Union territories. Some are arguing the same can now be done to any other state. Conditions specific to Kashmir are not applicable to Kerala or any other state. A situation was building up in J&K. The J&K action cannot be used as a precedent in other cases/ states where different facts and conditions may be prevailing.
There are apprehensions that Article 371 (that gives special status to most Northeast states) can also be abrogated. It will be unwise for the government to do that because the people of states affected by such a decision will be alienated. J&K case can’t become a universal prescription. It appears that the whole exercise was the work of a very astute legal mind. There may be other ways to abrogate 370. But the basic question is whether the J&K method is constitutional or unconstitutional. In my view the method adopted with regard to J&K is not unconstitutional. I don’t think challenging it in a court of law will succeed.
(As told to Prerna Katiyar & Sruthijith KK)