Views of people's representatives of J&K must come to fore: Faizan Mustafa

Assembly's expression of views is not power because those views cannot change anything. Parliament can ignore its opinion, says NALSAR University vice chancellor

With a five-judge Constitution Bench of the Supreme Court all set to hear petitions challenging the revoking of the special status of Jammu & Kashmir and its bifurcation into two Union Territories in October, Faizan Mustafa, vice chancellor of NALSAR University of Law, tells Karan Thapar that there are important legal issues around the central government’s decision on Article 370. Edited excerpts:

Professor Mustafa, let us start with Article 370. It has not been abrogated as many people believe, but its provisions have been used to deoperationalise Article 370 itself. Can you start by explaining how exactly this is being done?

Article 370 permits the president of India to make modifications and exceptions in other Articles while they are made applicable to Jammu & Kashmir. So they used this power to insert a clause in Article 367 and change the meaning of some of the crucial words which have been used in Article 370. One is ‘constituent Assembly of Jammu and Kashmir’ which, they said, will now mean Legislative Assembly. The other is ‘government of state’ which will now mean governor acting on the advice of the council of ministers. So basically, the text of (Article) 370 largely remains the same but when we interpret them, we will use 367 to arrive at an entirely different interpretation.

And because they reinterpreted the word ‘Constituent Assembly’ to mean ‘Legislative Assembly’, when they apply that interpretation back to Article 370, it means they can deoperationalise Article 370: Not with the concurrence of the Constituent Assembly but now with the concurrence of the Legislative Assembly. And this reinterpretation has permitted them to deoperationalise Article 370…

It was a very innovative way. I think we must compliment the government for finding a way to deoperationalise Article 370 without deleting 370 from the Constitution.

Let’s come to this innovative interpretation. As you pointed out, Article 370 permits the central government to enforce other Articles of the Constitution in Jammu and Kashmir with modification or amendments. Did the framers of the Constitution ever intend that this power to modify or amend Article 370 itself?

No, because words used in Article 370 are ‘other provisions.’ So there are provisions mentioned in Article 370 which are Article 1 and 238. 238 does not exist anymore, so it is only Article 1. So they cannot use it to change Article 370 itself.

So the very phraseology of Article 370 makes it clear that the power of Article 370 to amend exists to amend ‘other provisions’; not to amend itself.

Because the expression used is ‘other provisions’ — which the president of India, with such modifications and exceptions, would like to apply to Jammu & Kashmir.

So then, this attempt to use 370 to modify or amend 370 itself, is actually a form of constitutional sleight of hand.

Yes, you can say that.

In 1973, in the Kesavanand Bharati judgement, the Supreme Court ruled that Parliament cannot amend what was called the ‘basic structure’ of the Constitution. This was a limit placed on Parliament’s capacity and power to amend the Constitution. Does a similar statute of limitation exist about the extent to which Article 370 can be used to amend the Constitution?

Whatever Parliament can do will be much more than what the president can do. The president is the executive, Parliament is the legislature. If the limitation applies on Parliament, how can the President not be bound by the basic structure?

So, there is also a statute of limitations which determines the extent to which you can use Article 370 and the government has ignored that as well?

I would say, at least the implied limitation should apply because 370 is not just an ordinary Article of the Constitution. It is an outcome of an agreement between two sovereign states.

As one of India’s leading exponents of law, do you believe that there is a chance that the Supreme Court could strike this down as unconstitutional?

No one can predict what the outcome of the legal challenge in the Supreme Court will be. But our experience has been that when you have governments with massive majorities, courts stay away from political questions. When there are coalition governments, they assert their power a little more and I have a feeling that when it comes to their own powers, they jealously guard them. But when it comes to the Constitution, citizen’s liberties, the same kind of anxiety is not demonstrated by the courts. So at best… the matter will be decided after two or three years. By that time, it will become redundant.

Let us come to a second critical aspect of what happened -- the manner in which the central government has split Jammu & Kashmir into two and then demoted both parts into UTs. Ordinarily, the Constitution requires that this can only happen after first seeking the opinion of the state Assembly. As you know the Assembly doesn't exist, the government has said that under President’s rule, the powers of the state Assembly stand transferred to Parliament and as a result, the government can consult Parliament rather than have to consult the Assembly. Do you agree with that line of logic?

Not entirely, because you have to look at the timeline. The timeline is that the Presidential order comes on August 5. On 5 August, in the Rajya Sabha, this Bill is introduced and passed. Now, before August 5, you had Article 3(1): One exception created for Jammu and Kashmir which said ‘concurrence’ is needed of the Legislative Assembly. Not ‘ascertainment of views’. So when before August 5 was this Bill referred to the Legislative Assembly?

Two, the expression used says after August 5, it becomes an ordinary state and like any other state, views of the Assembly are to be ascertained. Now, ‘views’ are not ‘powers’. There is a distinction between views and powers. Parliament can exercise the ‘power’ on behalf of the Assembly. But here the expression of ‘views’ of people’s representatives of that state must come to public fore.

And that hasn't happened.

That hasn’t happened.

You are making a very important distinction: Under President’s rule Parliament can exercise the powers of an Assembly but Parliament cannot express the views of the Assembly. And since the Constitution requires that before you change the borders or the status of a state, you ascertain the views of the Assembly, those views have not been ascertained and what the government claims as a process for doing so, is, therefore, a second sleight of hand?

Definitely. Just recall Telangana. The Bill was referred in 2013 (December) to the Andhra Pradesh Assembly. 84 members in Assembly, 54 members in Council participated. 9,000 amendment Bills were moved. They rejected it. Still, Parliament enacted the law. But there was an expression of views. There is a difference between an individual’s freedom of speech, which is subject to reasonable restrictions, and Parliament or the Assembly’s privilege to speak, which is absolute.

Under President’s rule, Parliament can assume the powers of an Assembly but it cannot express the views of the Assembly and if the Constitution requires the views of the Assembly be expressed, that has not been fulfilled.

“Power” means your capacity to change the legal relation. Say you have the power to arrest or not arrest, the power to pass a law or not pass a law. Assembly’s expression of views is not power because those views cannot change anything. Parliament can ignore its opinion. It is an opinion.

Can, in the first instance, Parliament, assuming the powers of an Assembly, act in such a way as to actually abolish the state? And if it can, then it follows the all the other states of the Indian Union are in potential danger of being arbitrarily reduced to Union Territories if Parliament so wants to do… 

Yes. They will first impose the President’s rule, then Parliament will act as a state Assembly but I don't think that this is as per the spirit of the constitution.

What are the chances that the Supreme Court will strike this down?

If the court makes a distinction between the expression of views and power, it must be struck down. And already there was a talk in Deccan Chronicle — there was big news that Hyderabad is going to become the next Union Territory.

Do you believe the Supreme Court will make this distinction between powers and expression of views?

It will depend on how lawyers who are challenging this re-organisation of Jammu &Kashmir argue their case.