In August 2019, NLIU Manthan in collaboration with NLIU Law Review organized its first session of the Academic Year to discuss the legal and political ramifications of the repeal of Article 370 and Article 35A of the Indian Constitution, which collectively served as the means to confer the State of Jammu and Kashmir with a special status. This special status as per Article 370 meant that Jammu and Kashmir had greater autonomy and could make laws on all matters except those relating to foreign affairs, defence and communications.
The discussion began with a brief summary of the events that had transpired in Parliament on 5th August. It was highlighted that a Presidential Order had been published which extended all the provisions of the Constitution of India to Jammu and Kashmir and also indirectly amended Article 370 through Article 367. Additionally, it was pointed out that a Bill to bifurcate of the State of Jammu and Kashmir into 2 Union Territories – Jammu and Kashmir (with a legislature) and Ladakh (without a legislature) was also introduced.
The discussion then proceeded to analyze the legality of the Presidential Order. The Constitutional Law Professor opined that though Article 370(3) provided for the abrogation of Article 370 through a Presidential Order, the same could only be done upon the recommendation of the Constituent Assembly of the State of Jammu and Kashmir. Thus, even if the phrase “Constituent Assembly of the State” is assumed to be validly amended to “Legislative Assembly of the State”, there was still no genuine consent given by the legislative assembly since the State was under President’s Rule and therefore the mere consent of the Governor cannot be termed as the consent of legislative assembly since the office of the Governor is an extension of the Central Government which is made by way of nomination rather than through elections. Lastly, with respect to the amendment to Article 367, which in turn amends Article 370, she reiterated the constitutional law principle that what cannot be done directly, cannot be done indirectly either.
A senior professor then elaborated on the relationship between law and society and stated that law must follow society. He noted that the situation in Jammu and Kashmir could not possibly get any worse and, therefore, it would do no harm to give a chance to the Government to rectify the existing problems by abrogating Article 370.
The discussion was further carried on by students who represented opinions on both sides of the spectrum. While some believed that the Supreme Court has rightly established in its decisions the permanence of Article 370, others cited judgments to the contrary and also spoke about the how the move of the Government was valid as per the provisions of the Constitution of Jammu and Kashmir.
Amidst heated discussions, the Vice Chancellor of NLIU reminded students that as students of law, they should focus on the legality of the matter rather than the political motives behind the move. He emphasized that the text of the Constitution must be looked at carefully, before any judicial decisions. As per the heading of Article 370 and the context surrounding the enactment of the provision, he argued was that it was illogical to argue that the provision has a permanent character since it was a temporary and transitory provision meant for integration of the State of Jammu and Kashmir with the Union. However, this view was challenged by students and professors alike.
Subsequently, the Jammu and Kashmir crisis was looked at from the perspective of international law in light of the principle of self-determination. A number of students pointed out that though there was a UN Resolution, which mandated plebiscite in Jammu and Kashmir, the same was never conducted since Pakistan failed to withdraw its troops from the region and thereby did not fulfill the preconditions for plebiscite. It was also argued that a plebiscite would be a futile exercise as the demography of the State had been permanently altered due to the religious persecution and consequent exodus of thousands of Kashmiri Pandits during the 1990s.
The discussion proceeded to analyze the possible political ramifications and long-term effects on the State. Kashmiri students spoke of their experiences of living in the State and highlighted the human rights violations perpetrated by the Indian Army. Another viewpoint was that there would be no significant change in the political situation of Jammu and Kashmir since the justification given by the Government regarding setting up of industries and providing employment to local people would not translate into action. The argument was based on the premise that investments and setting up of industries would not be possible in the region as it had become a hotbed of frequent terrorist attacks and rising militancy. However, such arguments were countered with equal force by others who were of the opinion that any speculation regarding the persistence of status quo should not deter attempts of reformation and upliftment of the people of Jammu and Kashmir. It was also pointed that status quo (or the continued presence of Article 370 in the Indian Constitution) would in no way ameliorate the plight of the people of the State or reduce the number of human rights violations being committed and therefore expressed hope of a positive outcome in the long run.
While no consensus was reached on the various issues due to paucity of time, the discussion highlighted important legal and political issues that will be the focal point of deliberation in India in the near future. The large number of attendees stands testament to the fact that this is an issue that has attracted the attention of most people in the country and the coming months would determine whether the gamble truly benefits the people of Jammu and Kashmir.