Exorcise the Ghost

Light Infantry of NGOs has been now replaced by the heavy artillery of the Government. Home Minister Rajnath Singh has threatened. Finance Minister Arun Jaitley has set the stage. BJP President Amit Shah has given 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 like Mahesh Jethmalani (Indian Express, April 6, 2019) and Minhaz Merchant (Daily O, April, 15 2019) are waving the constitutional pom-poms and whirling the ideological ribbons!   

The argument is that Article 35-A could not have been inserted in the Constitution without being passed by the Parliament as required by 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 collar constitutionalism! Otherwise, A G Noorani, the most authoritative voice on the constitutional relationship between India and J&K has left no scope for any ambiguity (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 widely respected as constitutional expert — not only adequately authoritative but also politically palatable. This is what he has to say on Article 35A: “Article 368 does not curtail the power of the President under Article 370. Article 370 is a special provision for amending the constitution in its application to the state of Jammu & Kashmir.”

He goes on further to say that Article 368 (2) of the Constitution of India, states that no Constitutional amendment by the parliament under Article 368 would have effect in relation to the State of Jammu and Kashmir, “unless applied by order of the President under Clause-1 of Article 370”. Not only that, “no such amendment which is not acceptable to the Government of J&K can be applied to the state even if the procedure for amendment as laid down under Article 368 has been followed”. 

This should have settled the issue. But as we know, it has not.

It is obvious by now that it is not an issue of Constitutional puritanism or proprietary but about ideological idolatry. The real opposition that BJP has to Article 35A and Article 370 is ideological. 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?

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 precisely this matter on two separate occasions with two separate Constitution Benches; first in 1961 in the case of Puranlal Lakhanpal v/s President of India and second 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 of India 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 under Article 370(1) of the Constitution were challenged. The Supreme Court dismissed this petition as well. 

A more political route and a democratic recourse should be to 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 the parliament which, according to the BJP, has been encroached upon by the President on the advice of the Jawahar Lal Nehru and his cabinet.

Let us be clear. A democratic Constitution has to be responsive to the changing conditions. A Government founded on the principle of popular sovereignty, must “make possible the fresh assertion of the popular as that changes”. If the “collective conscience of India”, which BJP believes is vouchsafed with them for now, wants abrogation, let it be settled in the parliament. 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-national document! 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 the Lordships in the courts? For it is the parliament which is supreme legislative body in any democracy, so too in India which prides itself as the largest democracy.

 In the Indian Constitution, Article 368 empowers the parliament with the constituent power to amend the Constitution by way of addition, variation or repeal of any provision according to the procedure laid down. What is the procedure in this case? Simple but stringent: bring before either house of the parliament a legislative proposal for repealing Article 35A.

An amendment that annuls Article 35-A and Article 370, can be effected by the parliament by a prescribed ‘special majority’ laid out in Article 368. The ‘special majority’ has three elements: first a majority of not less than two-thirds of the members of each House present, and voting; second a majority of the total membership of each House and third is ratification by at least one half of the state legislatures.  It is only for amendments of defined specific matters that the ratification of the state legislatures is required.

Notwithstanding the political might that they currently have, BJP doesn’t have the legislative muscle to get their way in amending this part of the Constitution in the parliament. No wonder then, they are not taking this route. 

In a situation like this, there can be nothing but unbounded admiration for the fairness and foresight of Dr B R Ambedkar.  Speaking in the Constituent Assembly on 4th November, 1948, when he was under fire for making the Constitution very rigid by proposing a strict amendment process, he said, “The future parliament if it met as Constituent Assembly, its members will be acting as partisans seeking to carry amendments to the Constitution to facilitate the passing of party measures which they have failed to get through parliament by reason of some Article of the Constitution which has acted as an obstacle in their way. Parliament will have an axe to grind while the Constituent Assembly has none” (emphasis added).

One has to admit that it is because of this kind of wisdom and vision that India as a nation has not only survived but evolved. 

In light of Ambedkar’s statement and the spirit in which it has 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 is will not remain limited to J&K. Shorn of its temporality, it is fundamentally about the blend of India as a majoritarian democracy and India as a constitutional republic.