On Dilution, Bifurcation And ‘Special Status'

J&K’s perceived loss and New Delhi’s real gains over the Centre’s Article 370 decision need to be objectively assessed

- Faizan Mustafa

The jubilation in parts of the country following the supposed abrogation of Article 370 was in contrast to the gloom in the Kashmir Valley. It was ignored by both sides that New Delhi did not make any substantial gain in terms of powers; neither did Srinagar suffer any major loss. Later, in what could be construed as a setback to the Centre, the Supreme Court referred all the petitions on Article 370 to a Constitution Bench, which will hear the matter in the first week of October.

Amidst these developments, some points require deeper scrutiny. First, the apex court could possibly strike down as ‘unconstitutional’ the Centre’s move to amend Article 370 by invoking the very same article. Second, the bifurcation of a State which is under President’s rule into two Union Territories is possibly against federalism. And third, Article 370, as it stood on August 4, was a special power available not to Kashmir, but to the Centre.

First, Article 370 has not been abrogated. It still very much remains part of the Constitution. Instead, the government, in an innovative and constitutionally suspect manner, invoked the Article to amend Article 367. On August 5, the President inserted a new clause to say that the ‘Constituent Assembly’ of Jammu and Kashmir ( J&K) shall mean ‘Legislative Assembly’ of the State, and ‘State government’ shall mean ‘Governor acting on the advice of Council of Ministers’. With this interpretation, Article 370 presented an entirely different picture. Since the erstwhile State was already under President’s rule, the Parliament, by exercising ‘powers’ of the Legislative Assembly, gave its concurrence to the aggressive surgery of Article 370 that has killed the spirit as well as the text of the provision.

Bona-fide exercise of power?