A Constitutional Backsliding?

OutlookIndia

#OutlookMagazine | The judgement of the Supreme Court in the Article 370 case heralds an ever-increasing disconnect between constitutional law and constitutional reality in post-colonial India, writes Burhan Majid.  Listen to the excerpts from the latest issue of Outlook - only by Pragya Vats.   #Article370 #JammuAndKashmir #Kashmir #SupremeCourt  Read more: https://www.outlookindia.com/national/supreme-court-s-verdict-on-article-370-a-constitutional-backsliding--magazine-337483

Transcript

00:00 I am Pragya and I bring to you excerpts from the current issue of Outlook.

00:05 Outlook looks at two cover stories.

00:07 One, titled "Almost Real, But Not Quite".

00:11 Virtual production can make the filmmaking much cheaper and convenient.

00:16 But will the AI-powered tech also forever alter the essence of cinema itself?

00:22 Second, it's titled "Paradise Lost".

00:25 Can we row the Shikara Isles and have the heritage walks?

00:29 The cover carries the image and words from the visual artist Veer Munshi.

00:34 He says, "My installation depicts the fast-changing characteristics of Indian cities.

00:40 So I was wondering about the fate of our paradise on earth called Kashmir."

00:45 A constitutional backsliding by Burhan Mazid,

00:48 an assistant professor of law at the School of Law, Jamia Hamdard, New Delhi.

00:54 The judgment of the Supreme Court in the Article 370 case heralds an ever-increasing disconnect

01:00 between constitutional law and constitutional reality in post-colonial India.

01:05 Four years after the unilateral abrogation of Kashmir's semi-autonomous status,

01:11 the Supreme Court of India eventually endorsed the central government's contentious decision on December 11, 2023.

01:20 The judgment exemplifies the Supreme Court's fragmented track record of disengagement with JNK's unique constitutional position.

01:28 For the uninitiated, JNK stands as the only state that actively bargained the terms of its membership with the Indian Union.

01:38 This exceptional constitutional arrangement reserved JNK's legislative authority on all matters

01:45 except defense, external affairs, and communication, which was later codified in Article 370 of the Indian Constitution.

01:54 Hence, JNK retained a unique and distinct status in the post-colonial Indian landscape as seeding but not merging like other states.

02:05 Article 370 also recognized the state's autonomy to frame its constitution.

02:11 The December 11 judgment bypassed the constitution and its precedents.

02:17 More than the outcome of the ruling, the conspicuous absence of constitutional reasoning in the judgment is baffling.

02:25 A closer reading of the judgment highlights that the court has complicated a legally easy issue.

02:33 Contrary to the time-honored understanding, the court held no qualms about obliterating bilateralism in the text and context of Article 370.

02:44 The court has virtually decimated the will of the people of JNK by ruling that Article 370 could have been abrogated

02:54 without concurrence from JNK's Constituent Assembly, a prerequisite under the article.

03:00 Surprisingly, the Presidential Order of 2019 at least attempted a facade of bilateralism,

03:08 changing the reference of Constituent Assembly to Legislative Assembly in Article 367.

03:15 Interesting to note here, JNK's Constituent Assembly was a result of adult franchise-based elections

03:22 unlike the Indian Constituent Assembly. Symbolizing a transition of the residual sovereignty of JNK

03:30 from the Maharaja to the people, the state constitution was drafted,

03:34 a fact also confirmed by the report of the Basic Principles Committee of the state's Constituent Assembly.

03:41 The committee observed, "The sovereignty of the state resides in the people thereof

03:47 and shall, except regarding matters specifically entrusted to the Union,

03:52 be exercised on their behalf by the various organs of the state."

03:57 Yet, the court refused to accept that JNK retained internal sovereignty,

04:03 arguing that JNK had surrendered full sovereignty after a proclamation was issued by Yuvraj Karan Singh in November 1949.

04:14 The court's invocation of the proclamation is self-defeating for two reasons.

04:19 First, it was meant to oversee the state's transition from the applicability of the Government of India Act 1935 to the Constitution of India.

04:29 Second, such a proclamation cannot be invoked to overshadow the constituent power of JNK's Constituent Assembly

04:38 that shaped the relationship between JNK and the Indian Union.

04:42 For this and more, read the current issue of Outlook.

Category

Transcript

Recommended