Light Infantry of NGOs has been now replaced by the heavyartillery of the Government. Home Minister Rajnath Singh has threatened.Finance Minister Arun Jaitley has set the stage. BJP President Amit Shah hasgiven a deadline. Prime Minister Modi has all but announced. Alea iacta est!The die is cast for the abrogation of Article 370 and Article 35A.
Hot on their heels of these heavyweights, cheerleaders likeMahesh Jethmalani (Indian Express, April 6, 2019) and Minhaz Merchant (Daily O,April, 15 2019) are waving the constitutional pom-poms and whirling theideological ribbons!
The argument is that Article 35-A could not have beeninserted in the Constitution without being passed by the Parliament as requiredby Article 368 which prescribes the amending procedure.
Given BJP’s ideological predilections and party preferences,they will not want to be convinced by “Ghafoor bhai’s” starch collarconstitutionalism! Otherwise, A G Noorani, the most authoritative voice on theconstitutional relationship between India and J&K has left no scope for anyambiguity (See my column: “Article 35-A: Myth & Reality, GK, April 18,2019).
Be that as it may, BJP will find Justice A S Anand —perfect credentials as an individual, impeccable record as a jurist and widelyrespected as constitutional expert — not only adequately authoritative butalso politically palatable. This is what he has to say on Article 35A: “Article368 does not curtail the power of the President under Article 370. Article 370is a special provision for amending the constitution in its application to thestate of Jammu & Kashmir.”
He goes on further to say that Article 368 (2) of theConstitution of India, states that no Constitutional amendment by theparliament under Article 368 would have effect in relation to the State ofJammu and Kashmir, “unless applied by order of the President under Clause-1 ofArticle 370”. Not only that, “no such amendment which is not acceptable to theGovernment of J&K can be applied to the state even if the procedure foramendment as laid down under Article 368 has been followed”.
This should have settled the issue. But as we know, it hasnot.
It is obvious by now that it is not an issue ofConstitutional puritanism or proprietary but about ideological idolatry. The realopposition that BJP has to Article 35A and Article 370 is ideological. Notprocedural. Why then is the BJP seeking the help of the Supreme Court to dowhat it ought to do politically: strike down a constitutional provision thathas been in operation for the last seven decades and more? Why is the gun beingfired from the shoulders of the judiciary? Why hide behind a debatabletechnicality and a contestable interpretation?
Not procedural. Why then is the BJP seeking the help of the Supreme Court to do what it ought to do politically: strike down a constitutional provision that has been in operation for the last seven decades and more? Why is the gun being fired from the shoulders of the judiciary? Why hide behind a debatable technicality and a contestable interpretation?
As it is, the Supreme Court has adjudicated on preciselythis matter on two separate occasions with two separate Constitution Benches;first in 1961 in the case of Puranlal Lakhanpal v/s President of India andsecond in 1968 in Sampat Prakash v/s State of Jammu and Kashmir. In the former,Article 35A was specifically challenged on the ground that the President ofIndia had exceeded his powers in passing the Order inserting the provision.This was not accepted by the Court. In the latter, the President’s powers underArticle 370(1) of the Constitution were challenged. The Supreme Court dismissedthis petition as well.
A more political route and a democratic recourse should beto bring it to the parliament and let the parliament vote on its abrogation.This will, in the process, also restore the prestige and power of theparliament which, according to the BJP, has been encroached upon by thePresident on the advice of the Jawahar Lal Nehru and his cabinet.
Let us be clear. A democratic Constitution has to beresponsive to the changing conditions. A Government founded on the principle ofpopular sovereignty, must “make possible the fresh assertion of the popular asthat changes”. If the “collective conscience of India”, which BJP believes isvouchsafed with them for now, wants abrogation, let it be settled in theparliament. That is the forum.
A parliamentary process is perhaps the best way to reflect the “collective conscience of the society”, which has otherwise been appropriated by the Judiciary and turned into a majoritarian groupthink (recall the Afzal Guru judgement). Judicial opinion does not, and indeed need not, necessarily reflect the public opinion.
Nor should Judges take upon themselves the responsibility of becoming spokespersons of public opinion. In fact, as Justice D Y Chandrachud once remarked, judiciary should err on the side of articulating the minority viewpoint to keep the semblance of a balance and safeguard in a majoritarian bodypolitik. The function of reflecting public opinion is best left to the chosen representatives of the people in the parliament.
If indeed, Article 35A is “subversive”, as has been argued,then the Constitution of India of which it is still a part, is an anti-nationaldocument! Isn’t it then only appropriate that Article 35-A be discussed,debated and, if need be, dumped, by the elected law makers rather than theLordships in the courts? For it is the parliament which is supreme legislativebody in any democracy, so too in India which prides itself as the largestdemocracy.
In the IndianConstitution, Article 368 empowers the parliament with the constituent power toamend the Constitution by way of addition, variation or repeal of any provisionaccording to the procedure laid down. What is the procedure in this case?Simple but stringent: bring before either house of the parliament a legislativeproposal for repealing Article 35A.
An amendment that annuls Article 35-A and Article 370, canbe effected by the parliament by a prescribed ‘special majority’ laid out inArticle 368. The ‘special majority’ has three elements: first a majority of notless than two-thirds of the members of each House present, and voting; second amajority of the total membership of each House and third is ratification by atleast one half of the state legislatures. It is only for amendments of defined specific matters that theratification of the state legislatures is required.
Notwithstanding the political might that they currentlyhave, BJP doesn’t have the legislative muscle to get their way in amending thispart of the Constitution in the parliament. No wonder then, they are not takingthis route.
In a situation like this, there can be nothing but unboundedadmiration for the fairness and foresight of Dr B R Ambedkar. Speaking in the Constituent Assembly on 4thNovember, 1948, when he was under fire for making the Constitution very rigidby proposing a strict amendment process, he said, “The future parliament if itmet as Constituent Assembly, its members will be acting as partisans seeking tocarry amendments to the Constitution to facilitate the passing of party measureswhich they have failed to get through parliament by reason of some Article ofthe Constitution which has acted as an obstacle in their way. Parliament willhave an axe to grind while the Constituent Assembly has none” (emphasis added).
One has to admit that it is because of this kind of wisdomand vision that India as a nation has not only survived but evolved.
In light of Ambedkar’s statement and the spirit in which ithas been made, it is not the insertion of 35-A which is “surreptitious”,getting the courts to strike it down is stealthy.
This issue, at the moment, may be about J&K but it iswill not remain limited to J&K. Shorn of its temporality, it isfundamentally about the blend of India as a majoritarian democracy and India asa constitutional republic.