The Supreme Court and Kashmir

The Supreme Court and Kashmir

The issue before the Supreme Court was, therefore, a narrow one – Does SARFAESI fall within Entries 45 and 95 of the Union List?

G. K. Exclusive

The Supreme Court of India has given no reason to the people of Kashmir to feel grateful to it. The Court has let them down consistently on the gross human rights violations known to the world and whenever the issue of the autonomy of the State of Jammu & Kashmir arose before it. The Court has contributed effectively to the hollowing out of Article 370 of the Constitution of India which was supposed to guarantee that autonomy. 

The latest judgment, delivered on 16 December 2016, by Justice Rohinton F. Nariman on behalf of himself and Justice Kurian Joseph belongs to that inglorious tradition (State Bank of India & Anr. vs. Santosh Gupta & Anr). It begins with this verbose flourish so typical of the Court’s judgments. “The Constitution of India is a mosaic drawn from the experience of nations worldwide. The federal structure of this Constitution is largely reflected in Part XI which is largely drawn from the Government of India Act, 1935. The State of Jammu & Kashmir is a part of this federal structure. Due to historical reasons, it is a State which is accorded special treatment within the framework of the Constitution of India.” 

 

The appeals arose out of a judgment dated 16.7.2015 by the High Court of Jammu & Kashmir at Jammu, in which it was held that various key provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI”) were outside the legislative competence of Parliament, as they would “collide” with Section 140 of the Transfer of Property Act of Jammu & Kashmir, 1920. The Act was held to be inapplicable to banks such as the State Bank of India which are all-India banks. SARFAESI inter alia entitles banks to enforce their security interest outside the court’s process by moving under Section 13 to take possession of secured assets of the borrower and sell them outside the court’s process. 

The main issue before the Supreme Court was whether Parliament had the legislative competence to enact the Act in relation to J&K. Orders made by the President of India under Art.370 have extended to the State certain provisions of the Constitution of India. One of them is Article 246 which confers by Clause (1) on Parliament exclusively a power to legislate on matters in the Union List 1. Entry 45 in the list reads “banking”. Entry 95 reads: “jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List”. This includes banking. 

 Article 246 was extended to J&K by a major Order on 14 May 1954 (C.O. No. 48). All subsequent Orders over the next four decades were amendments of it. However, clauses (2) and (3) of Art.246 were omitted. They pertained to the Concurrent List (III) and the State List (II). Kashmir had acceded to India only in respect of defence, foreign affairs and communications. All other matters were reserved to it; including the crucial residuary power (a matter not mentioned in any List) which, under Article 248, is vested exclusively in Parliament. The Order of 1954 omitted Article 248. It also omitted entirely the State List and the Concurrent List.

An earlier order of 26 January 1950, when the Constitution of India came into force, had applied to J&K Articles 1 and 370 of the new Constitution alone. It applied to the State matters relating to defence, foreign affairs and communications. Also applied were a few other provisions on the federal structure. In 1950, shortly thereafter, the Government of India issued a White Paper on Indian States which has been cited by the Courts.

It said: “The effect of this provision is that the State of Jammu and Kashmir continues to be a part o India. It is a unit of the Indian Union and the Union Parliament will have jurisdiction to make laws for this State on matters specified either in the Instrument of Accession or by later additions with the concurrence of the Government of the State. An order has been issued under Article 370 specifying (1) the matters in respect of which the Parliament may make laws for the Jammu and Kashmir State and (2) the provisions, other than Article 1 and Article 370, which shall apply to the State. Steps will be taken for the purpose of convening a Constituent Assembly which will go into these matters in detail and when it comes to a decision on them, it will make a recommendation to the President who will either abrogate Article 370 or direct that it shall apply with such modifications and exceptions as he may specify.”

The issue before the Supreme Court was, therefore, a narrow one – Does SARFAESI fall  within Entries 45 and 95 of the Union List? The appeals could have been disposed off on that issue alone. The rest is pure obiter. Justice Nariman explains why he chose to travel the far wider field. That is very interesting to note.

First, he cites a Supreme Court ruling in 1964 that “India is quasi-federal with a strong tilt to the Centre” (Para 8) and proceeds to hold that “even qua the State of Jammu & Kashmir, the quasi federal structure of the Constitution of India continues, but with the aforesaid differences.” The judgments’ “tilt” is obvious. Pray what is the point of emphasizing that in a case such as this and emphasizing in gross error the “temporary character” of Art. 370? And the “quasi-federal” bit?

“The first thing that is noticed in Article 370 is that the marginal note states that it is a temporary provision with respect to the State of Jammu & Kashmir. However, unlike Article 369, which is also a temporary provision limited in point of time to five years from the commencement of this Constitution, no such limit is to be found in Article 370. Despite the fact that it is, therefore, stated to be temporary in nature, sub-clause (3) of Article 370 makes it clear that this Article shall cease to be operative only from such date as the President may by public notification declare. And this cannot be done under the proviso to Article 370 (3) unless there is recommendation of the Constituent Assembly of the State so to do.”

The Supreme Court has repeatedly ruled that the Constituent Assembly Debates are relevant in interpreting the Constitution. But it ignored them completely in this case. The mover of Article 370 in the Assembly, N. Gopalaswamy Ayyanger explained on 17 October 1949 why the word “temporary” was used. He referred to the war, the ceasefire, and the U.N. “It is not possible to say now when we shall be free from this entanglement (U.N). That can take place only when the Kashmir problem is satisfactory settled” (C.A.D. Vol. X; pp. 422-7). Art. 370 is “temporary” till that settlement and for no other reason. The Court’s remarks on “temporary” were groundless.

On the “concurrence” of the State Government to additional extension of the Union’s power or other provisions of the Constitution, Ayyangar was as explicit. “You will remember that several of these clauses provide for the concurrence of the Government of Jammu and Kashmir State. Now, these relate particularly to matters which are not mentioned in the Instrument of Accession, and it is one of our commitments to the people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the State for the purpose of framing its Constitution. In other words, what we are committed to is that these additions are matters for the determination of the Constituent Assembly of the State.

“Now, you will recall that in some of the clauses of this article we have provided for the concurrence of the Government of the State. The Government of the State feel that in view of the commitments already entered into between the State and the Centre, they (that is, the State Government) cannot be regarded as final authorities for the giving of this concurrence, though they are prepared to give it in the interim periods but if they do give this concurrence, this clause provides that the concurrence should be placed before the Constituent Assembly when it meets and the Constituent Assembly may take whatever decisions it likes on those matters.”

The scheme is perfectly clear Extension of Union power – beyond defence, foreign affairs and communications, can be made only with the consent of the State’s Constituent Assembly when it met. In 1949 none knew when it would be convened. It did so in 1951. Till then, and only till then, the State Government could accord its “concurrence” but always subject to the Constituent Assembly’s ratification. Clause (2) of Article 370 makes that clear beyond doubt. “If the concurrence of the Government of the State … be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon”. Once the Constituent Assembly was “convened” on 31 October 1951, the State Government’s power to accord its “concurrence” to the Union ended. When that body dispersed formally on 17 November 1956, after adopting the Constitution of J&K the sole ratificatory body on both, increase in Union power and extension of the Indian Constitution, also vanished. We know the fate of the Union’s “commitments” to Kashmir.

The well documented Report of the J&K State Autonomy Committee (1999) records that of the 395 Articles of India’s Constitution, 260 were applied to Kashmir. Of the 97 entries in the Union List, 94 were extended; sparing only 3. The Concurrent List was extended. Of its 47 entries 26 were applied.

All this with the “concurrence” of State Governments after the Assembly had died, President Rajendra Prasad had, in a Note to PM, Jawaharlal Nehru, dated 6 September 1952, strongly rejected to repeated recourse of Art 370 “from time to time”. Do you blame Kashmiris for their outrage at this fraud-manifest, palpable and monumental – spread over four decades from 1954 to 1994 through Constitution Orders galore (The last, so far, was C.O. 154 of 19 February 1994).

Once the Parliament of India and its Government failed, to whom else could Kashmiris have looked for help and redress but – the Supreme Court of India? But this very Court accorded its sanction to those extensions. This begins with a liberal judgment in Prem Nath Koul’s case in 1959 (the Assembly; ratificatory power was upheld) But a U-turn in Sompat Prakash’s case (1968) followed. It did not ever refer to the earlier case though Justice M. Hidayatullah was member of both benches. The Court totally overlooked the fact that on its interpretation, Article 370 can be abused by collusive State and Central governments to reduce Article 370 to a naught. This is what happened. The Court even  misconstrued the State Constituent Assembly’s recommendation of 17 November 1952, which merely defined in an Explanation “the Government of the State”. To the Supreme Court this meant that the Assembly had “expressed its agreement to the continued operation of this Article  by making a recommendation that it should be operative with this modification only.” It had made no such recommendation. The Explanation said no more than that “for the purpose of this Article, the Government of the State means…” It does not, and indeed, cannot, remove the limitations on the State government’s power of concurrence imposed by Clause (2); namely, ratification by the Constituent Assembly by an amendment to that “Explanation”.

Now, Justices R. F. Nariman and Kurien Joseph have gone one better. They say: “The scheme of Article 370 (1), therefore, is clear. Since the Instrument of Accession is an agreement between the erstwhile Ruler of Jammu & Kashmir and the Union of India, it must be respected, in which case if a matter is already provided for in it, it would become applicable straightway without more, and only consultation with the Government of the State is necessary in order to work out the modalities of the extension of the provisions of the Government of India Act corresponding to the Constitution of India referred to in it. However, when it comes to applying the provisions of the Constitution of India which are not so reflected in the Instrument of Accession, they cannot be so applied without the concurrence of the Government of the State, meaning thereby that they can only be applied if the State Government accepts that they ought to be so applied. Under Article 370 (2), the concurrence of the Government of the State, given before the Constituent Assembly is convened, can only be given effect to if ratified by the Constituent Assembly.” How then can this be called a “quasi-federal” polity? And what is the result after that Assembly was dissolved in 1956. Surely all extensions thereafter are void.

 

The Judgment casts doubt on the character of the State’s Constitution let alone the limitations of Art. 370. “Nothing can ever be frozen so long as the drill of Art. 370” is followed. In other words, if “the drill” of State Government’s “concurrence” is followed, even the remaining entries in the Legislative List and the remaining provisions of the Constitution of India can be applied to J&K Article 370 need not be abrogated. It can be used – rather abused – to reducing J&K to the level of all other States. Its “special status”; a veneer now will be peeled off. This is what G. L. Nanda had in mind when he called Art.370 a “tunnel”. Justice Nariman’s judgment endorses that. The peril which Kashmir faces to its autonomy is  real, after this judgment.

Now for the State’s Constitution “It is rather disturbing (sic.) to note that various parts of the judgment (of the High Court) speak of the absolute sovereign power of the State of Jammu & Kashmir. It is necessary to reiterate that Section 3 of the Constitution of Jammu & Kashmir, which was framed by a Constituent Assembly elected on the basis of universal adult franchise, makes a ringing declaration that the State of Jammu & Kashmir is and shall be an integral part of the Union of India. And this provision is beyond the pale of amendment.” The elation over “a ringing declaration” is misplaced, as will be pointed out later. 

Now, read this also: “It is thus clear that the State of Jammu & Kashmir had no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India. It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and district class in themselves. The residents of Jammu & Kashmir, we need to remind the High Court, are first and foremost citizens of India. Indeed, this is recognized by Section 6 of the Jammu & Kashmir Constitution which states: We have been constrained to observe this because in at least three places the High Court has gone out of its way to refer to a sovereignty which does not exist.” This need not have prompted the Court to go “out of its way” either by wrong obiter which are “disturbing”. 

The Constituent Assembly of J&K was not a gift of the Centre. It was an assertion of the people’s right to be their own masters. It was convened under a Proclamation of the Head of State dated 1 May 1951. It was elected directly by the people under adult suffrage. The Constituent Assembly of India was indirectly elected by Provincial Assemblies, themselves elected under a restricted suffrage in 1946. Kashmir is the only State which negotiated its membership of the Union for five whole months from May to October 1949. Article 370 represents that compact, a solemn accord concluded by Kashmiris delegation led by Sheikh Abdullah and India’s led by Jawaharlal Nehru.

As for “sovereignty” this is what the architect of the Constitution Dr. B.R. Ambedkar said moving that the draft constitution be taken into consideration, on 4 November 1948, he said ‘The Draft Constitution is a Federal Constitution inasmuch as it establishes what may be called a Dual Polity. This Dual Polity under the proposed Constitution will consist of the Union at the Centre and the States at the periphery each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution.’ (C.A.D. Vol. VII; p. 33).

On 3 August 1949, when the provisions for President’s Rule in the States came up for discussion, Dr. Ambedkar was at pains to empahsise: “I think it is agreed that our Constitution, notwithstanding the many provisions which are contained in it whereby the Centre has been given powers to override the provinces, nonetheless is a Federal Constitution and when we say that the Constitution is a Federal Constitution it means this, that the provinces are as sovereign in their field which is left to them by the Constitution as the Centre is in the field which is assigned to them.’ (C.A.D. Vol. IX; p. 133).” This applies with yet greater force to Kashmiris Constitution.

As far back as in 1878 the Privy Council held that when acting within its statutory limits the Indian Legislature “is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself” (The Queen vs. Burah (7 Appeal Cases 889 at p. 904)

The Constitution of India merely refers to the Constituent Assembly of Kashmir (Art. 370 (2)) before it was set up. But it did not derive its power or authority from this Constitution but from the people of the State as a body which alone could decide on the scope of the Union’s powers over the State.

On 8 August 1953, Jawaharlal Nehru arrested Sheikh Abdullah after removing him from office as Premier of the State. The hurdle removed, he began dismantling Art. 370; his solemn pact with Sheikh Saheb. Nehru happily noted the result on 27 November 1963 – “erosion” of Art. 370.

To what depths will the Indian State not stoop in cheating the people of Kashmir? Read this statement by G. A Lone in Kashmir Times of 20 April 1995: “As Secretary to Government, Law Department, it was stunning to discover that during his first sting as Governor in July 1986 when the State was put under Governor’s rule, Mr. Jagmohan by sheer manipulation got Article 249 of the Constitution applied to the State. The relevant record in the Law Department bears mute testimony to the fact how the then Secretary Law was made to change his stand on its application under the dictates of the Governor. The proposal itself was initiated on 30.7.1986 in an unprecedented manner on the basis of undisclosed press reports. About the proposal, the Law Secretary pointed out that the application of Article on the concurrence of the Governor acting without the aid and advice of the Councils of Ministers is impermissible. The ink of this opinion may have hardly dried up when on the same hour of the day he was made to support the proposal facilitating the granting of the concurrence by the Governor to the application of the aforesaid Article to the State. The whole exercise was completed in a single day and reeks of intrigue to dilute the constitutional status of the State in a highhanded manner. It was indeed a grave constitutional impropriety not only because the manner and method employed in applying the constitutional provision was dubious but also because the Governor in the absence of a Council of Ministers is not competent to grant such concurrence and change the constitutional framework. The concurrence granted was a clear breach and violation of Article 370 of the Constitution.”

The State’s Governor then was the “legendary” Shriman Jagmohan. Governors who are central appointees have accorded “concurrence” to their masters in New Delhi when the State was under Governor’s or President’s Rule. On 1 September 2012 the Supreme Court of Sri Lanka ruled that the Governor of a province cannot ratify a Bill without the Provincial Council. Rightly so. 

The Supreme Court’s consistently illiberal approach to Article 370 is in stark contrast to that of the Supreme Court of Canada on Quebec’s open bid for secession. It urged conciliation. Justice Narain’s “elation” at the “ringing” declaration in Article 1 on the Union of India should be tempered by two grim realities. Article 1 is applied to Kashmir only through Art.370. Two Union Home Ministers, G. L. Nanda and S. B. Chavan, pointed out that if Art.370 goes, so does Art. 1. Secondly, as applied to J&K Art.245 has this revealing proviso: “no decision affecting the disposition of the state of Jammu & Kashmir shall be made by the Government of India except with the consent of the Government of that State”. It was inserted by the Order of 1954.

This is a very “ringing” proviso. It is a constitutional recognition of a political fact – a decision as to the future disposition of the State of J&K is yet to be made – and that by an international agreement with Pakistan, obviously. The proviso qualifies Art.245 on enforcement of international agreements.

Jawaharlal Nehru was fully aware of the political realities which underlay Constitutional provisions. “And I say with all respect to our Constitution that it just does not matter what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion – presuming, of course, that the people of Kashmir do not want it. Are we going to coerce and compel them and thereby justify the very charges that are brought by some misguided people outside this country against us?…

“Do not think you are dealing with a part of Uttar Pradesh, Bihar or Gujarat. You are dealing with an area, historically and geographically and in all manner of things, with a certain background. if we bring our local ideas and local prejudices everywhere, we will never consolidate. We have to be men of vision and there has to be a broadminded acceptance of facts in order to interrogate reality. And real integration comes of the mind and the heart and not of some clause which you may impose on other people.” (In the Lok Sabha on 26 June 1952). A year later he did the opposite of what he had acknowledged by beginning to plant stooges who would accord the State Government’s “Concurrence” unconstitutionally – Bakshi Ghulam Mohammed, G. M. Sadiq, Mir Qasim, Farooq and Omar Abdullah, Mufti Mohamed Sayeed and daughter Mehbooba Mufti who has excelled all with her Pellet Raj. The Supreme Court’s activism was not very evident on it – as it was on pollution in New Delhi. 

It is the moral pollution there which should worry the Supreme Court. Pending before it are five cases of great sensitivity affecting the State’s autonomy as Muzamil Jaleel has tabulated (Indian Express; 10 February 2017). One hopes that the Supreme Court will not be found wanting yet again. As Justice Felix Frankfurter said “Constitutional law is not at all a science, but applied politics, using the word in its noble sense”. In the Dred Sott case the U.S. Supreme Court overlooked this profound truth – and triggered off a tragic civil war. We are confronted with a people who want to secede from the Union. Neither Jagmohan’s bullets nor Mehbooba’s pellets silenced them. Nor will Ajit Doval’s tactics. Nor will Court rulings. Only conciliation and statesmanship can with them over by respecting their rights and redressing the wrongs they have suffered for decades.