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What's in a name? HC order on 1965 PM-CM title change spells trouble for J&K

Catch Team | Updated on: 14 February 2017, 2:57 IST
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The Order

  • In 1965, J&K\'s PM, president were re-titled CM, governor
  • Now, the HC says the change violated the state\'s constitution
  • It says the assembly has a \'constitutional obligation to rectify an error\'

The effect

  • The order strengthens the demand to restore J&K\'s diluted autonomy
  • It weakens the case to revoke Articles 370 & 35A of India\'s constitution
  • Plea in SC wants Article 35A junked. It bars outsiders from settling in J&K

Not many people know that until 1965, Jammu and Kashmir had a prime minister and a Sadr-e-Riyasat, or president in Urdu, who was elected by the assembly. But the 6th amendment to the state's constitution changed the nomenclature to chief minister and governor, respectively.

Half a century later, the J&K high court has essentially ruled the change unconstitutional. The 6th amendment, it has said, was "against the basic structure of the constitution".

In 1965, GM Sadiq was Wazir-e-Azam, Karan Singh Sadr-e-Riyasat. They took on the new titles of chief minister and governor when the amendment was effected.

Also read: J&K High Court 'saves' Article 370 but the battle is far from over

Not surprisingly, the order has strengthened the groundswell of demand for restoration of the state's diluted autonomy. And it's set to spark ideological and legal wrangling.

In 1965, GM Sadiq was J&K's PM & Karan Singh Sadr-e-Riyasat. Overnight, they became CM & governor

What's the order about?

"The elective status of Head of the State, Sadr-e-Riyasat, was an important attribute of constitutional autonomy enjoyed by the state, a part of "Basic Framework" of the state constitution and therefore not within the amending power of the state legislature," a bench led by Justice Hasnain Masoodi ruled on a petition seeking hoisting of the state flag on the offices and vehicles of constitutional authorities.

The court, however, left it to the legislature "to take measures to uphold" J&K's Constitution. "The legislature is under a constitutional obligation to uphold the constitution and rectify an error, wherever necessary," it ruled. "To perpetuate an error is no heroism and to rectify it is compulsion of conscience."

Also read: From Article 370 to beef: 9 smart statements made by Mehbooba Mufti at the HT Summit

HC nudge to J&K assembly: Perpetuating an error no heroism, rectifying it compulsion of conscience

Drawing a parallel between the constitutions of India and J&K, the court observed that both were framed through the "same process and have same origin".

"In both cases, a duly elected Constituent Assembly was convened or 'convoked' with the specific task of framing the constitution for the country and for the state respectively. What is true about the Constitution of India as regards its Basic Framework is true about the Constitution of Jammu and Kashmir," the court ruled.

Drawing a distinction between "Constituent Power", the authority to the change basic structure of the constitution, and "Legislative Power", the court said, "Constituent Power is unfettered and without any limits. Constituent Assembly in exercise of its Constituent Power is free to frame a Constitution with framework as agreed upon by it."

Also read: BJP backs them. J&K locals dread Village Defense Committees

"But," it added, "once the Constitution is framed, the "Constituent Power" is limited and cannot be exercised to change "Basic structure" of the Constitution".

How could it affect J&K?

The order has only complicated the ongoing legal tussle over Article 370, which makes J&K an autonomous territory within the Indian Union.

On one side are advocates of its revocation, and on the other those who want undone all federal laws of 1953-75, which have eroded Article 370, turning it into "husk, with seed being taken away".

Incidentally, the interlocutors Dilip Padgaonkar, Radha Kumar and MM Ansari, appointed by the UPA regime to find ways to defuse the political conflict in Kashmir, had recommended revival of the Sadr-e-Riyasat and Wazir-e-Azam nomenclature.

They had also suggested that New Delhi respect the terms under which J&K had acceded to India, including its special status.

On October 9, the division bench of Justices Hasnain Masoodi and Janak Raj Kotwal had ruled that Article 370 was permanent and "beyond amendment, repeal or abrogation".

The bench had ruled that only the J&K's Constituent Assembly, which had formed to determine "the constitution of the state as well as the sphere of Union jurisdiction over the state", had the power "to recommend to the president that Article 370 be declared to cease to be operative or operate only with the exceptions and modifications mentioned in the recommendation".

Also read: Doublespeak: why do Abdullahs & Muftis often sound like the Hurriyat?

But since the Constituent Assembly had made no such recommendation before its dissolution on 25 January 1957, the court added, Article 370 had "become permanent notwithstanding its title as a temporary provision".

Opening another front?

Meanwhile, the RSS-linked think tank J&K Study Group has petitioned the Supreme Court against Article 35A of the Indian constitution. The provision was extended to J&K through a 1954 Presidential Order and gives protection to the state subject laws that bar outsiders from settling or acquiring property.

The petition argues that the "provision" is "unconstitutional" since it was added by Presidential Order and not by approval of the parliament.

Sangh groups believe that the only way to resolve the Kashmir dispute is through a sweeping demographic change. And it's Article 35A, not Article 370 which comes in the way of settling people from other parts of India in J&K.

"Article 35A enables the assembly of J&K to define 'permanent residents' and to give them special rights and privileges. The ambit of permanent residents was deliberately kept narrow to exclude several communities," the counsel for the petitioner Aniruddha Rajput has said. "This distinction was arbitrary and archaic."

While the eventual fate of these court orders and petitions remains to be seen, they will certainly sharpen the ideological divide on Kashmir's legal status.

Also read: J&K beef ban: meet the sacked lawyers who undermined the state's case

First published: 28 December 2015, 7:38 IST
 
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