Repeal of Article 370 will not be struck down

Legislation overrides judge-made law because the former is an expression of the will of the people whereas the latter is not. This is why the BJP’s repeal of Article 370 in Jammu and Kashmir will remain despite the Supreme Court upholding the reasoning of the Jammu and Kashmir High Court that this article had acquired a permanent status. In this universe nothing is permanent. Least of all Article 370. So, the repeal of Article 370 will remain because it was a temporary measure, despite being a vital condition for Jammu and Kashmir to accede to India on October 26, 1947. Taking the Kashmir issue to the United Nations was a Nehruvian blunder which the Modi government has rightly undone. The only issue is that Jammu and Kashmir’s status has been lowered two notches to a union territory to be directly administered from Delhi which will stamp out secessionism. But the Kashmiris can rest assured their legislative assembly will retain its statehood sooner or later.

Article 370 was not only the genesis of bloodshed and terrorism in the valley but was a bulwark to block investment and development of Kashmir in the guise of preserving its special status. Ladakh which has been given the status of a union territory without a legislative assembly is a Buddhist-majority territory which had clearly said it wanted to remain with India and was not a part of Tibet, grabbed by China. Ladakh is a frontier territory connected to China, Afghanistan and Russia so its people will become pawns in Chinese machinations if given autonomy. This is why it will be directly governed from New Delhi—with inputs from the Intelligence Bureau. Ladakh is too precious for Indian mobocracy to destroy its fabric—as in the rest of India.

Striking down the repeal of Article 370 will amount to the apex court impugning the sovereignty and integrity of India of which Jammu, Kashmir, Ladakh, Aksai Chin, Sikkim and other territories disputed by Pakistan or China are an integral part. Although you may not know it, courts never interfere in executive policy or legislative strategy. And so the challenges to the repeal of this article will be argued at length in the Supreme Court, one of the main contentions being that Article 370 forms part of the basic structure of the Constitution and the BJP cannot repeal it without passing a Constitutional amendment bill. This the BJP could easily have done—but it chose a clever legal route which was equally viable.

Sub-clause 3 of article 370 permits the President of India to issue a notification to repeal the article itself which requires the consent of the Constituent Assembly of Jammu and Kashmir which ended in 1956. It follows that the Modi government needed the assent of the government of Jammu and Kashmir which implies its governor who is the head of state and is appointed by the Modi government itself, would be consulted. This again is a vexed legal point because it in effect means the Modi government in Delhi is consulting itself in Srinagar before repealing Article 370—a good point for argument.

Jammu and Kashmir may have been a theatre of muscular Hindutva nationalism to counter potent jihadist Islamic secession. But Article 370 was a bulwark for investment in the state and its development in the guise of preserving Kashmir’s special status. Article 35-A allowed the Kashmir government which was infiltrated by pro-Pakistani secessionists to decide who were permanent residents and who were not. Pakistan had ceded part of Kashmir to China, which built roads for its tanks to rumble to the Indian border. For it is China who is India’s numero uno enemy and not Pakistan, which India’s armed forces can easily handle.

In all the brouhaha over Sushma Swaraj’s death, the controversy-bedevilled Chief Justice of India (CJI) permitted the CBI to register a case against a sitting judge of the Allahabad high court Justice S N Shukla. This is the very first time in Indian judicial history that a sitting judge is being prosecuted for a criminal act despite immunity granted to him under Section 77 of the IPC and the Judges (Protection) Act, 1985 which exempt both judges and magistrates from being prosecuted for judicial acts done in good faith.

Justice Shukla was charged with deliberately giving a wrong order allowing a private medical college to extend its date of admitting students, despite the Supreme Court barring that same medical college from doing so. This appears to have been deliberately done, perhaps for a quid pro quo, which cannot be proved. Justice Shukla had written to the CJI asking he be allocated judicial work. But CJI Gogoi not only refused to do so but recommended to Prime Minister Narendra Modi that Justice Shukla be impeached in Parliament.

For those who came in late, medical admissions is a national scam in which a few judges have been embroiled. The CBI arrested Justice I M Quddusi who had retired from the Orissa High Court on the charge of conspiring with his accomplice, Bhawana Pandey, to allow the Prasad Education Trust (PET) to admit medical students despite being banned by the Medical Council of India.

Quddusi allegedly knew enough about how to manipulate the filing of the petition by PET to ensure it came up before a certain bench in the Supreme Court. A bench headed by former CJI Dipak Misra asked the Modi government to consider lifting the ban which it refused to do. Former senior Supreme Court judge Jasti Chelameswar had criticized the presence of CJI Misra on this bench which led the latter to proclaim he was the “master of the roster” and had the prerogative to decide allocation of cases to certain benches. This medical colleges scam has now assumed epidemic proportions.

The writer holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.

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