Article 370 not part of ‘basic structure’
The integration of Jammu and Kashmir into the Union of India generated a lively and heated controversy in Parliament, news channels and the press. The J&K Reorganization Bill and the resolutions moved by Amit Shah have been passed in both the Houses. The result is that Jammu and Kashmir now has no special status and all laws applicable to people of India including fundamental rights guaranteed by Part III of the Constitution shall be available to people of J&K. In short, J&K is now constitutionally recognized as an integral part of India.
Article 370, as its marginal note stated, was a “temporary provision with respect to the State of Jammu and Kashmir”. Thus Article 370 cannot be regarded as an essential feature of the Constitution and comprising its basic structure. Thus abrogation of Article 370 did not require a constitutional amendment and the contention that it is unconstitutional is fallacious.
There are many pros and cons about the integration of Jammu and Kashmir. The main argument in Parliament was that Article 370 was a constitutional blunder, a historical mistake and Article 35-A entered the Constitution secretly by the back door. The other favourable points are that people from other states can buy land in Kashmir which they could not do before. RTI which was not applicable before cannot now be denied.There will be no separate flag for J&K, but only one flag, the Indian tricolor. To my mind, the greatest benefit, though is that the people of J&K can exercise the fundamental rights guaranteed by Part II of the Constitution by moving the Supreme Court directly in appropriate cases and obtain relief which may be granted to any Indian citizen.
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The opposition has condemned the legislation as murder of democracy and betrayal of the people of J&K. In my opinion the charge is exaggerated and not tenable. However, there is substance in the contention that there should have been wider consultation, a genuine effort to win the hearts and minds of Kashmiris and dispel their apprehensions. A law is more readily accepted after a full and frank discussion about the necessity for it and its remedial purpose.
What has gravely disturbed me is placing PDP chief Mehbooba Mufti and National Conference vice-president Omar Abdullah under house arrest around midnight on Sunday, and later, under preventive detention on Monday when they were taken to different locations. Till the moment of writing it appears that while Mehbooba was taken to the Hari Niwas Guest House, Omar’s location is not known. Veteran leader Farooq Abdullah says he has been detained in his own house. The Home Minister’s statement that Farooq Abdullah has not been detained has been emphatically contradicted by the latter.
Preventive detention is obnoxious and is a negation of the rule of law. In a democratic state professing the rule of law, a person can be arrested or detained if he has committed a crime or indulged in wrongdoing as judicially determined. However, preventive detention can be resorted to in clear and exceptional cases of grave and reprehensible activities which will disrupt public order. The decision to place a person under preventive detention must be based on cogent and credible materials and after full application of mind. Preventive detention cannot be resorted to punish dissenters and to curb dissent. I sincerely hope the authorities will terminate preventive detention of political leaders and not further alienate the people of Kashmir.
A question asked is will this issue reach the courts? So long as we are not prepared to act on the Shakespearean quip: “the first thing we do is to kill all the lawyers”, these issues will flood the courts. And there will be an interesting plethora of cases. But will that restore peace in Kashmir? I am not an astrologer and will not dare to prophesie.
(The author is a former Attorney General for India)