In this exhaustive interview, professor Faizan Mustafa clarifies what has been done to Article 370 – it has been de-operationalised but not abrogated – the constitutional sleight of hand by which this has been achieved, and the trickery with which the state assembly’s ‘consent’ for dividing and demoting Jammu and Kashmir was obtained. In conversation with Karan Thapar, he also, in detail, reveals the new relationship between the Central government and J&K, pointing out specific areas where, paradoxically, Delhi’s power over J&K has diminished and not increased. In other areas, as he points out, J&K had better laws than those which will now replace them.
The interview goes into the intricacies of the Indian constitution and unravels the constitutional trickery by which Article 370 has been de-operationalised and by which J&K has been split into two and demoted to Union Territory status.
Arguably for the first time since the August 5 decision, a constitutional expert has sought to explain in detail what has happened in Jammu & Kashmir and what that means for the state, for India and, most importantly, for Indian democracy. Professor Mustafa also talks about how he believes the Supreme Court will respond to all of this. And he’s pessimistic.
He begins by making it clear that Article 370 has not been abrogated.
It’s still in the constitution. It’s been de-operationalised. Article 370 has been used to amend Article 370 itself. It was a two-stage process. First, Article 370 was used to amend Article 367 and then the amended Article 367 was read back into 370 to amend 370. Finally, this was used to de-operationalise Article 370.
He also explains the different sleight of hand whereby the Central government claims its consulted the state assembly before dividing the state and then demoting it to union territory status. In this second instance, he points out that whilst President’s rule transfers the powers of the legislative assembly to parliament, what is required to change a state’s status is the expression of the views of the assembly and those have not been transferred to parliament under the President’s rule.
So the status of J&K was changed and demoted without ascertaining the views of the assembly, because the parliament cannot express those views, and has therefore happened wrongly.
He also says that he very much doubts whether these legal infirmities will be acknowledged by the Supreme Court because:
(a) the apex court is always reluctant to challenge the political decisions of a majority government, and
(b) it has anyway not shown any urgency and, at best, will push this to a constitutional bench which could take upto three to four years to set up, by when all of this will be a fait accompli.
Moving on, the professor explains what the constitution meant by placing Article 370 under the heading ‘temporary, transitional and special provisions’. This is because the power the Article gives the Central government to extend other Articles of the Indian constitution to Kashmir, with the concurrence of the state government, only prevailed till such time as the constituent assembly of Kashmir was convened. Thereafter the Central government needed the concurrence of the constituent assembly.
Because the Indian constitution came into force in January 1950 and the Kashmir constituent assembly only came into being over a year later there was need for this temporary provision whereby the consent of the state government was sufficient. But it was only for the period up until the constituent assembly was convened. Therefore the Article is temporary only in that sense.
It’s not temporary in the way the constitution’s Articles on reservations (only for 10 years) or use of the English language (only for 15 years) are. There is no time limit set in the constitution regarding Article 370.
He is particularly good in pointing out the errors, or at least the misleading nature, of Union law minister Ravi Shankar Prasad’s claims that a whole lot of specified laws which did not previously apply to Kashmir will now do so. In several instances, he points out, Kashmir already had a better version of these. So, in these specific instances, Kashmir will lose rather than gain.
The most interesting and revealing bit is the discussion about how under Article 370 Delhi had powers over J&K which it did not have over other states. This has now been lost to Delhi.
Therefore, in these specific instances, what the de-operationalisation of Article 370 has done is not so much abolish the special status of Kashmir but abolish the special status of Delhi.
Equally importantly, professor Mustafa points out that although Article 370 has been de-operationalised Article 371 continues and this confers powers to the assembly in Nagaland often similar to those that have been stripped away from Kashmir.
For instance, many acts of the Indian parliament only apply in Nagaland after the state assembly has concurred. That was the case with Kashmir when 370 applied. That’s no longer the case now but it continues to be the case in Nagaland.
Finally, the professor confirms that because Article 370 has not been abrogated and remains part of the constitution and has only been de-operationalised, its possible for a future government, provided it has the necessary majority and the necessary will, to reverse what the Modi government has done and re-operationalise Article 370.
He adds that he believes this is only a theoretical possibility because he does not believe any future government will do this.