On dilution, bifurcation and 'special status'(Kashmir and Article 370 dilution)

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 On dilution, bifurcation and 'special status'(Kashmir and Article 370 dilution)

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• Jubilation versus gloom : India was elated, while Kashmir wasn't, when the August 2019 decision on Article 370 was taken. Then, the Supreme Court referred all petitions to a Constitution Bench.
• Bigger questions :

1. Can the SC strike down as 'unconstitutional' the amendment of Article 370, using that article itself?
2. State bifurcation into 2 UTs during President's Rule is against federal principles
3. Article 370 was a special power for Centre, not the State!

• What happened to Article 370 : It has not been abrogated, and is a part of the Constitution. The govt. used A.370 to amend A.367. The President added a new clause to say that "Constituent Assembly of J&K" will mean "Legislative Assembly", and "Legislative Assembly" will mean "Governor acting on advice of Council of Ministers". The surgery of A.370 was done!
• Is this genuine : Did the parliament carry out a bona-fide exercise of power?

1. A legislative assembly created by the Constituent Assembly cannot replace it.
2. Where was the "Council of Ministers"?
3. Article 370(1)(d) was used to dilute Article 370. But it was originally made to apply other parts of Indian constitution to J&K, not to amend/repeal A.370.
4. The term "other provisions" means Articles other than Articles 1, 238 and 370.

• The Constitutional situation :

1. One constitutional provision cannot nullify another.
2. Interpretation clauses to be used only for removing confusions, not otherwise. (There is no ambiguity about the 'Constituent Assembly' of J&K which met from 31-10-1951 to 26-01-1957.
3. Even when 2 contradictory provisions exist, "the Doctrine of Harmonious Construction" will be invoked to make both work.
4. No one can alter the federal structure of India, not even the President. It is part of basic structure.
5. No colourable exercise of power - what you cannot do directly, you cannot do indirectly.

• Unconstitutional acts : While imposing President's Rule in J&K on 18-12-2018, the proviso on reference to Assembly was suspended. Article 3 clearly gives Parliament the right to alter State boundaries or bifurcate them. But it doesn't mean state assemblies won't be consulted at all! (Ex: Andhra Pradesh 2014) The SC cannot allow the suspension of Article 3, as that will be the end of Federalism in India.
• What did Union gain by killing A.370 : 

1. Almost entire constitution was already applicable to J&K.
2. 94 of 97 items in Union List applied to it.
3. Audits and E.C.I. powers applied to it from 1958 and 1959.
4. 260 of 395 articles of Indian constitution already applied through successive Presidential orders.
5. More than 250 Central Laws extended!

• What was the 'special status' really : It was special for Delhi, not the State! Delhi could apply anything and withdraw anything at will.
• Summary : So now, the SC has to decide if India turns into a unitary state, or remains federal.
• The Supreme Court has to decide a basic question now - will India turn into a unitary state, or remain federal.

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