Abrogation of Article 370: Good in Law, better in Logic

The presidential order by the Indian government has much in common with actions of other political thinkers from across the world.

Abrogation of Article 370: Good in Law, better in Logic

The great Abraham Lincoln, whose immortal lines from his famous Gettysburg address in 1863, of ’government of the people, by the people and for the people’ have attained meaning in popular imagination of being the very definition of democracy, would have supported the Narendra Modi government’s move to abrogate Article 370 in philosophy- had he been alive. And so would have Jawaharlal Nehru!
Lincoln, the saviour of the integrity of the American union and a veritable hero of history for championing democracy and civil rights, was assailed throughout his presidency as being a dictator, a despot and a tyrant. As the tumult of the time necessitated, he frequently resorted to numerous seemingly-undemocratic measures, including suspension of the Habeas Corpus, undertaking actions that supplanted decision-making by the Congress, locking horns with and vetoing of the Supreme Court of the United States and rebutting the southern states’ repeated claims on their constitutional rights to secede. He undertook these measures as history would prove, for the larger cause of preservation of the union- which he claimed was his ‘oath registered in heaven’.
To Lincoln, who led the United States through its most difficult phase in history, the provision and vision of the constitution rested upon the premise of service to, and to benefit of, his nation. He claimed not to require heeding to less specific provisions in the constitution but to heed to the larger provision contained therein, thus: “A part cannot be supreme over the whole, to the injury or destruction of the whole.”
To him, the nation’s destiny could not be held hostage to the semantics of legal language or the obstinacy of technicalities- nor could the interpretation of the constitution be allowed to saunter beyond the realm of rationality and confront the very existence and preservation of the union. For this, he was attacked by many of his contemporaries varyingly, as a tyrant who ‘hoisted the banner of consolidation to destroy the rights of states’, of ‘heading a government of absolute despotism in Washington’ and making ‘the people of the United States no longer a government of laws’.
Lincoln wasn’t going to allow scathing contemporary criticism or the vagaries of legality to deter him in his attempts to weld the contending factions into a composite whole: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” he asked in an address to the Congress in 1863.
To attend to the case at hand, the abrogation of Article 370 is a case much simpler. It would be a surprise that removal of an article which in its being carries the title of ‘temporary’ should cause upheaval and disquiet. Legality and procedural propriety of the action are subjects that are best to be bandied by lawyers and law-makers, and much has been heard and read about the ‘permanency vs removability’ of the provision. A quick summary of the legality of the issue would show that the action of the central government in abrogating the said Article has kept the requisite procedure attended to. A historical reading would demonstrate that the constitution of the state of Jammu and Kashmir, itself an anomaly, does not at any place, directly invoke Article 370, however, an interpretation of one of its clauses can be theoretically linked to Article 370. Thereafter, the Article itself, inserted via a presidential proclamation post the merger of the state to the Indian union, not via a constitutional amendment, was removed via the same procedure- and later ratified by parliament too.
This presents a conundrum to the opponents of the move- first in pressing for interpretation while looking at the constitution of J&K in linking it to Article 370, and then in opposing interpretation while pressing for letter of the law of the Indian constitution in an attempt to de-link it from its right to remove it.
While the legality of the move appears well catered to due to the natural state of Jammu and Kashmir being integral to India, and the unquestionable primacy of the parliament of India in framing laws of the land, it is its logic which is more pressing, and the opposition to which by some, more distressing.
Jawaharlal Nehru, in stressing on the temporary nature of the provision, perhaps understood its long-term unsustainability and detrimental nature.
The Constitution cannot be petrified”, wrote Nehru in his response to protests by the Maharaja of Jaipur, Sawai Man Singh II over the abolition of the office of Rajpramukh that the former ruler of Jaipur was appointed to. The “bald statement” as Maharani Gayatri Devi of Jaipur called it in her memoirs, was made despite the office being guaranteed for perpetuity to the erstwhile ruler in the Constitution of India. Thus when Nehru deemed it fit, he did not allow constitutional guarantees to come in the way of his decisions- relying certainly on the subservience of individual provisions to the larger structure and purpose of the constitution.
The Constitution, like many religious books, isn’t always immune to self-contradiction and thus any reading of it must never be void of the beneficent company of rational interpretation. Particular provisions or sentences cannot be read so as to defeat the basic enterprise of a united and constitutional nation.
Article 370 violated virtually every parameter of a liberal democracy- that of pluralism through its creation of religious divisions in the state and its governance, that of equal opportunity and civil rights by professional and social exclusions and that of basic equality of law. The mutation of India’s constitutional ethos caused by this provision precipitated in the only instance of large-scale ethnic cleansing in independent India. Any opposition to annulment of this retrograde provision, inherently antithetical to democracy and the uniform rule of law, therefore is scarcely understood but for political expediency.
In addition to democratic and constitutional inconsonance, and aggravation of the security challenge in the region, there occurred continual exploitation of Article 370 by dynasties that turned custodians of political power in Jammu and Kashmir. Kashmiri identity, threats to & and shields for it, appropriation of land, loss of sovereignty, property and evaporation of civil rights were smokescreens created against which 370 was pitched as the sole antidote. The provision thus served to turn the Kashmiri society to develop insecurities against the Indian state to some measure
In his paper Democracy: the Rule of Nobody, Professor John Keane of the University of Sydney describes the ‘cliché of simple democracy’ as ‘paradoxically encouraging and legitimising forms of political behaviour that threaten democratic institutions and ways of life.’  In a section entitled ‘Strategic Abuses of Democracy’, Keane describes “the tendency of actors to invoke the word democracy, understood as popular sovereignty, as a handy weapon in the struggle for power over others.”
The substance and context of Professor Keane’s argument is entirely different, however a strong parallel can be drawn for this with the use of Article 370 by the political dynasties of Jammu and Kashmir- wherein democratic way of life and civil rights of Kashmiris were presented as being cocooned in the protective sheath of Article 370 alone, without which all would fall into disrepair.
The abrogation of 370 thus rectifies an egregious trespass on the basic tenets of India’s democracy, constitution and national integrity. The debate over the action, therefore, must not be allowed to become one of constitutional propriety versus national interest, since both are mutually inclusive.
It can be well understood that ‘National interest’ cannot be invoked loosely or ubiquitously to countermand constitutional provisions. The Canadian economist Pierre Lemieux has called the concept of national interest ‘a tool for tyranny because it justifies preferences of some individuals over others. Under the excuse of the national interest, protectionist wars and even real wars have been waged, and minorities allegedly not national enough have been oppressed’. Lemieux makes a generalised statement that ‘national interest is, at best, meaningless’, going on to state that ‘national interest can only have an authoritarian meaning’.
The allusion to national interest that Lemieux makes however, does not take into account genuine matters of security, constitutional and democratic equality, prevention of discrimination and equal distribution of the fruits of economic progress and development as would be espoused by a progressive, democratic society- all of which Article 370 caused to be undermined in Jammu and Kashmir.
Another misleading concern cited by opponents of the abrogation of Article 370 is its bearing on the mechanism of protection of tribal cultures and rights as enshrined in Article 371 for north-eastern states and other specific regions. The comparison is fallacious, in that it pitches the question of preservation of specific cultures and traditions against the question of uniformity of law, national integration, security and social justice. Article 371 does not create a state within a state, often at cross-roads with it, endangering national security, promoting discrimination, inequality and sectarian strife, going against basic tenets of Indian democracy as Article 370 did.
The politics over this move would be better placed if it focuses on ways of bringing succour to the Kashmiri people, undoubtedly under stress, as early as possible. The full integration of the state of Jammu and Kashmir heralded by the nullification of Article 370 is nevertheless a welcome step, rectifying a mutant event in history in a land that has, for millennia, been centre-stage of the cultural evolution of India.

About Author: Priyvrat Gadhvi

Priyvrat is a writer, conservationist and a student of history.

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