Scrapping Article 370
Legal experts on Monday seemed divided over the Centre's decision to abrogate Article 370, which gave special status to Jammu and Kashmir. One section of it said it was a legal, historic step while another of the view that it was a complicated move fraught with serious political consequences.
The scrapping of Article 370 had been BJP-led government's electoral promise for 2014 as well as 2019 Lok Sabha elections. The government has not only abolished Article 370 but it also moved a separate bill in the Rajya Sabha to bifurcate the state into two separate Union Territories of Jammu and Kashmir, and Ladakh, simultaneously.
As debate intensified on the move, senior advocate and constitutional law expert Rakesh Dwivedi said the decision is completely legal and there is no chance that the plea against the government's decision will succeed.
"It was a long overdue, historic step. It should go and it is no more required. It is a welcome step. Kashmir was also open for outsiders so I don't understand why there should be Article 35-A."
Article 35-A came into being in the Constitution on May 14, 1954 and allowed the Jammu and Kashmir assembly to define "permanent resident" of the state and accorded special rights and privileges to the natives.
At the other end of the spectrum, former Union Law minister and senior Congress leader and advocate Ashwini Kumar said the decision of the Union government to alter the status of the Jammu and Kashmir is "fraught with serious political consequences for the nation".
"That something was in the offing was well known for the last few days but that the government would move such a proposal in Parliament without extensive consultations with opposition parties was unthinkable," he said.
Former attorney general Soli Sorabjee was of the view that "nothing revolutionary has been done (by the government)". Laws not applicable to the state so far will now be applicable.
Sorabjee was referring to earlier provisions of Article 370, which had provided that state assembly the power to enforce or not enforce the central law in Jammu and Kashmir.
Former solicitor general and senior advocate Harish Salve termed the legal situation pertaining to Articles 370 and 35A "very complicated".
He referred to the fact that earlier Article 35A was brought into being by the government in 1954 by issuing the Constitution (Application to Jammu and Kashmir) Order instead of a constitutional amendment.
He added that several presidential orders were issued under Article 35A by successive governments.
"It is a very complicated legal situation and I have not fully analysed it. It appears what they (Centre) have superseded the old Presidential order," Salve said.
"First, parliament acting as Assembly of Jammu and Kashmir will approve the bifurcation or trifurcation and then parliament acting as parliament will consider, debate and decide the reorganisation," he said.
On the issue of possible legal challenge to the decision, he said, "Nowadays everything comes before the Supreme Court whether it should or should not."
Discussing the issue of Article 35 A, Dwivedi said historically people from other places settled in Kashmir.
"Buddhism and Islam came from outside...So why close doors of Kashmir for jobs and land now on the plea of the local population being overrun.
"The logic of protecting state subjects or permanent residents was fallacious. Kashmir had never closed its doors to outsiders. Closed-doorism is foreign to its culture. Kashmir has been a cradle where Buddhism, Hinduism and Islam all found place to thrive," Dwivedi added.
In his view, Indian citizens have a fundamental right to reside and settle in any part of the territory of India, including Jammu and Kashmir, and "this is an important feature of national integrity."
"Inclusion of Article 370 in the Constitution was never intended to create a partial accession or to perpetuate Instrument of Accession based autonomy for Jammu and Kashmir forever. They were intended to permanently unite the state in an indestructible Union," he said.
The Instrument of Accession of Jammu and Kashmir to India was executed by Maharaja Hari Singh of the then princely state on October 26, 1947.
According to Congress leader Kumar, the government's decision is bound to be challenged in the Supreme Court.
"I sincerely hope that there is no threat to law and order and peace in the country on account of this very major political decision. Some would call it a political misadventure," he said.
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