Article 370: Shots Fired, Shots Missed
The State of Jammu and Kashmir has been in the top trending terms making global headlines with the sudden revocation of Article 370, pulling the iron curtain it adorned since 1949. This opinion was largely based on the inputs from News, Social Media and other forms of reporting. In this whole exercise of decoding the highlighted Article 370, many chose to be lawyers, by taking sides to the situation, I would prefer to play the detective by lighting the candle from the bottom.
Fate of Jammu and Kashmir, turned dark when Maharaja Hari Singh maintained a state of neutrality on the Instrument of Accession, 1947. Being stuck in a ‘Cliff and Fire’ situation, Maharaja betted on Self-Interest over and above Public-Interest, creating a political earthquake of statelessness and abyss for generations to suffer.
To cut the confusion, at the time of introducing Art.370 and framing the Constitution of J&K, framers assumed a bona fide from both the parties to the dispute, leaving scope for only one possible solution i.e. The temporary status of Article 370 shall be revoked only after being approved by the Govt of J&K represented through its Constituent Assembly. However, in Oct 2015, the High Court of J&K ruled that the Article 370 cannot be "abrogated, repealed or even amended." It explained that the clause (3) of the Article conferred power to the State's Constituent Assembly to recommend to the President on the matter of the repeal of the Article. Since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, Article 370 has taken on the features of a "permanent provision" despite being titled a temporary provision in the Constitution.
The present Government of India has lit-up the runway for future governments and leaders to take-off on the same mischief for entertaining possibilities and outcomes which may not be desired by the people of India.
Though it may be interpreted as mischief adopted by deeming consent from Parliament on behalf of the Legislative Assembly of Jammu & Kashmir shall amount to nothing but eyewash to the Constitution of India as the same is incongruent with the intentions of the framers. In my opinion, there could not have been any substitute to the consent of the Legislative Assembly of J&K. Such manufactured acceptance by the Parliament followed by the resolution passed by the President, issued under Article 370(3) rendering all clauses of Article 370 inoperative does not reflect the will of the people of J&K as the same can be deemed legal only if given by the elected représentatives constituting the Legislative Assembly of the State of Jammu & Kashmir, as clearly specified in Sub Section 3 of Article 370.