Category: LEGAL

INTRODUCTION

Interrogation of suspects and accused is critical in any criminal investigation in order to draw the facts from them. Most tactics, many of that were based on kind of torture which were utilized by investigating authorities to seek data from convicted and the suspected since ancient times. New ways of lie detection have emerged with the advancement of technology which eliminated the police’s use of “third-degree torture.” However, legal problems have been raised about the legality of tests such as Narco Analysis, with some supporting it based on legal considerations and others dismissing it as a flagrant breach of constitutional obligations. (Rathore) The legal principle of “Nemo Tenetur Seipsum Accusare” declares that no one should be forced to offer any evidence, statement, or answer that shows him guilty of any crime. (Nandidni Sathpathy v P. L. Dani, 1978) This ancient legal principle, sometimes known as the “Right to Silence,” is talked about by both Article 20 (3) of the Indian Constitution and the Code of Criminal Procedure. The Identification of Prisoners Act is a long-standing law that provides for the collection of photographs and measurements of offenders. (Manikam V State, 2009) By far, there has been no legal conflict between the aforementioned legislation. However, the Criminal Procedure (Identification) Act of 2022, which supersedes the Identification of Prisoners Act of 1920, has sparked a slew of controversies and debates. It has been argued that the act requires an individual to provide measurements that include not only “finger impressions”, “palm-print impressions”, “footprint impressions”, “photographs”, but also “iris” and “retina scans”, “physical and biological samples”, and “behavioral attributes”, which could violate a person’s right against self-incrimination that is ensured by Article 20(3) of the Indian Constitution. The present article argues that the Criminal procedure Act 2022 must be repealed as it does conflict with the right against self-Incrimination.

ARGUMENTS

One could argue, citing various decisions such as Kathu Kalu’s case, where the court stated that being a “witness” could be equatable to presenting proof in the sense of making oral or written statements, but in the broader sense of the expression, giving a “thumb impression” or impression of “palm” or “foot” or “finger” or “specimen writing” or trying to expose a part of the body by an accused person with the intention of identification are not included in the expression “to be a witness.” Even in Shallendra Nath Sinha v. The State, the Calcutta High Court Division Bench concluded that an order for the accused to produce “specimen handwriting” did not amount to compelling the accused to give testimony and distinguished Sharma’s Case since it involved a search warrant for the production of documents. Also, in Ram Swarup v. State and Others, the Allahabad High Court held that because it would not be a document provided for examination by the court, writing obtained by the court under Section 73 of the Evidence Act would not be regarded as “evidence,” and the court’s directive under Section 73 would not be affected by article 20. (3). (Srivastava, 1996)

But the main problem with this act is that terminologies like “measurements” and “behavioral attributes” leave a lot of space for interpretation, and it also doesn’t clarify what a “biological sample” implies, which may be “Narco analysis”, “Polygraph test”, and “Brain Electrical Activation Profile”. The assumption behind “polygraph testing” is that when a subject lies in response to a question, he or she produces physiological responses that differ from those that occur naturally. Several types of equipment are attached to the subject during the “polygraph examination” to measure and record the subject’s physiological responses. The examiner then reviews these results, analyses them, and assesses the subject’s replies’ believability. “Polygraph examinations” make use of instruments such as “cardiographs”, “pneumographs”, “cardio-cuffs”, and “sensitive electrodes”. They monitor things like “respiration”, “blood pressure”, “blood flow”, “pulse”, and “galvanic skin resistance”. The truthfulness or falsity of the subject is determined by relying on physiological response records. These tests breach the right against self-incrimination because we know that if an accused gives evidence willingly or under a request, he cannot utilize article 20(3), but in this case, the evidence is extracted involuntarily and the accused has no choice to refuse according to the new act. (Sethi & Agarwal, 2021)

The right against self-incrimination was established to protect the integrity of the legal system, prevent false evidence, and ensure fairness. Imposing such measures on the accused would negate the purpose while also raising questions about the fairness of our proceedings. However, it has been emphasized numerous times that the victims’ statements made during the test are not utilized against them, but rather to aid the investigation. (Jain, 2019) But this issue was brought before in the case of Selvi v. State of Karnataka, the Supreme Court dismissed the High Court’s reliance on the “utility”, “reliability”, and “validity” of “narco-analysis tests” and other such tests as means of criminal investigation. The Court determined that forcing an individual to undergo “narco-analysis tests”, “polygraph tests”, and “brain-mapping” constitutes a necessary compulsion. The subject is unable to decide whether or not to answer a question because the responses provided during these tests are not given intentionally and willingly, resulting in “testimonial compulsion”, which is protected under Article 20. (3). The “narco-analysis test,” according to the Court, is a harsh and inhumane treatment that violates an individual’s “right to privacy” and “right against self-incrimination”, and that courts cannot allow the “narco-analysis test” to be administered against the individual’s consent. (Saxena, 2019)

A person can use protection under the right against self-incrimination when the three ingredients of Article 20(3) are satisfied i.e.,  i) the person must be accused of an offense ii) Compulsion to be a witness, iii) Compulsion resulting in giving evidence against himself.  The Criminal Procedure Act violates the right against self-incrimination since it requires the accused to be a witness, which entails giving evidence. Because firstly this act also applies only to those who are guilty of an offense punishable under any law in force at the time or arrested in connection with an offense punishable under any law in force at the day, he must allow a police officer or a prison official to take his measurement. (Criminal Procedure Act, 2022)

Secondly, this act compels the person to be a witness because anyone arrested under any law is required to give his measurements as demanded without any choice. After all, if a person who is compelled to enable measurements to be taken under this act opposes or refuses, the police officer or jail officer may take the measurements lawfully (Criminal Procedure Act, 2022) and this objection to or refusal to allow measures to be taken under this Act would be prosecuted under Section 186 of the Indian Penal Code. (Criminal Procedure Act, 2022)

Thirdly, because the clause is so ambiguous and unclear about what tests would be utilized, the police may threaten the accused with the potential of performing tests like “polygraph tests” to find out the specifics and compel him to be a witness. And such compulsion will result in the person being interrogated giving evidence against himself since the person being interrogated may make self-incriminating remarks due to fears that these procedures will extract the truth. Such behavior on the side of investigators is more likely to occur when the person being interrogated is unaware of his or her legal rights or is otherwise intimidated. Because this statute does not specify terms like “measurements,” “biological sample,” and “behavioral attributes,” the police may end up using tests like “polygraph tests”, as described above. And we know from Selvi v. State of Karnataka that it amounts to testimonial compulsion because the answers given during these examinations are not given knowingly and voluntarily. As a result, it satisfies the three requirements while violating the right to self-incrimination.

Another issue is that all private information, such as someone’s “physical” and “biological samples”, “behavioral characteristics”, “finger impressions”, “iris” and “retina scans”, and so on, is logged and stored in a central database, which is a violation of someone’s privacy from every viewpoint. The act of 2022 further stipulates that data maintained in a national database by the National Crime Records Bureau (NCRB) can be utilized to prove or disprove a case not only in the case in which an accused is now being tried, but in any past, future, or parallel case. The record of measures will be kept in digital or electronic form for “seventy-five” years from the date of collection, which raises concerns not only about it being used for self-incrimination in the future but also about the right to privacy. To illustrate, suppose Mr. A is accused of robbery and is placed in judicial custody; under the Act of 2022, his measurements will be taken and stored in the central database. Assume Mr. A was charged with another offense 30 years later. The result of this is that if Mr. A submits such information for a crime committed today, the investigating officer will use that information to construct a case 30 years later as well. In other words, Mr. A’s information will be used against him to prove his guilt.

In India, not only the constitution but also some CRPC provisions, including Sec 161(2), highlight a suspect’s right to remain silent and that he or she shouldn’t be coerced to give any evidence that could lead to punitive measures against him. “No individual shall be compelled to be a witness against oneself in any criminal proceeding,” the 5th Amendment of the US Constitution states. The preceding right has obtained a broad scope after being construed by the courts in various decisions. In civil and criminal proceedings, the right to self-incrimination applies to both witnesses and parties. It covers both “oral” and “written” evidence, as well as any “disclosures”, such as answers, that support a “criminal conviction” or provide a part of the network of proof needed for a prosecution. It is also a basic aspect in the UK that no one suspected of a crime should be forced to uncover “documents” or “items” that incriminate themselves. Except in a few limited circumstances, no witness, whether party or outsider should be forced to respond to any question or provide any document that could subject the witness (or the witness’s spouse) to “criminal prosecution”, “penalty”, or “forfeiture”. The purpose of this privilege is to motivate people to give testimony while also protecting them from damage or undue difficulty as a result of doing so. (Saxena, 2019)

Other violations by the act include violation of Article 14 of the Constitution by delegating too many powers to the executive in two ways: first, “by giving the executive broad rule-making powers with no guidance”, and second, “by empowering functionaries” like “police” and “prison officers” to decide who they can oblige to give measurements. Furthermore, the act’s section 3 does not anticipate all members of the class of people enlisted giving their measures. Only those individuals who police or prison authorities believe are obliged to furnish the measures will be forced to do so. Because there is no provision outlining any norms or principles by which such a requirement may be evaluated, it is safe to assume that the act is arbitrary in its sight. (JAVED, 2022) Only in the case of a biological sample, an exception is made. The exemption states that a person may decline to provide such samples unless he is arrested for a crime: (i) “against a woman or a child”, or (ii) “with a minimum sentence of “seven years” in jail”. The first exemption is broad in scope. For example, it could contain a theft case involving a woman. A rule like this would contradict the equality of law between someone who stole something from a man and someone who stole something from a woman. (“The Criminal Procedure (Identification) Bill”, 2022)

CONCLUSION

The right against self-incrimination is important to ensuring freedom from police overabundance and torment and providing personal and biometric information under duress and/or without authorization is arbitrary and erroneous. The act of 2022 requires record-keeping, which violates the right to privacy. Instead of empowering such obvious attacks on fundamental rights and privileges, Parliament should enact legislation to protect them. It is more necessary to invest in investigating technology and tools. Sensitizing investigating authorities to better and more efficient methods of investigation is more fruitful than trampling on the fundamental rights of the accused.

In conclusion, the act does not significantly contribute to the goal of working on the sufficiency and efficacy of investigation and enhancing State Machinery but rather increases managerial weights while also infringing on Fundamental rights. Although the Criminal Procedure Bill has now become an act, this provision is quite ambiguous and subject to misuse, so it should be repealed or terms like “measurements,” “behavioral attributes,” and “Biological sample” should be more specific to avoid misuse as they can be used by the state to collect self-incriminating evidence against any arrested, convicted, or detained person without their consent. As previously discussed, this violates the right against self-incrimination guaranteed by Article 20(3) of the Constitution. (Hasan, 2022)

BIBLIOGRAPHY

1. Rathore, D. (n.d.). Article 20 (3) of constitution of india and Narco Analysis. Legal Service India. Retrieved May 15, 2022, from https://www.legalserviceindia.com/article/l375-Article-20-(3)-Of-Constitution-of-India-And-Narco-Analysis.html
2. Nandidni Sathpathy v P. L. Dani (Supreme Court 1978).
3. Srivastava, U. (1996). IMMUNITY FROM SELF INCRIMINATION UNDER ARTICLE 20 (3) OF THE CONSTITUTION OF INDIA. Ijtr.nic.in. Retrieved 15 May 2022, from http://ijtr.nic.in/articles/art19.pdf.
4. Sethi, R., & Agarwal, N. (2021). RIGHT AGAINST SELF-INCRIMINATION: A DETAILED STUDY OF THE CONSTITUTIONAL PROTECTION. JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL], 5(3). Retrieved 15 May 2022, from.
5. Jain, Y. (2019). The right to remain silent: A case commentary on Smt. Selvi v State of Karnataka – iPleaders. iPleaders. Retrieved 15 May 2022, from https://blog.ipleaders.in/right-remain-silent-case-commentary-smt-selvi-v-state-karnataka/.
6. Saxena, S. (2019). Right against Self-incrimination under Article 20(3) of the Constitution. iPleaders. Retrieved 15 May 2022, from https://blog.ipleaders.in/right-against-self-incrimination/.
7. Criminal Procedure Act (2022).
8. JAVED, S. (2022). Unravelling concerns over the Criminal Procedure (Identification) Bill, 2022. The Leaflet. Retrieved 15 May 2022, from https://theleaflet.in/unravelling-concerns-over-the-criminal-procedure-identification-bill-2022/.
9. The Criminal Procedure (Identification) Bill, 2022. PRS Legislative Research. (2022). Retrieved 15 May 2022, from https://prsindia.org/billtrack/the-criminal-procedure-identification-bill-2022.
10. Hasan, Z. (2022). Explainer: Why the Criminal Procedure (Identification) Act Is Being Challenged in Court. The Wire. Retrieved 15 May 2022, from https://thewire.in/law/explainer-why-the-criminal-procedure-identification-act-is-being-challenged-in-court.

Abstract

“Sooner or later, we will have to recognize that the Earth has rights, too, to live without pollution. What mankind must know is that human beings cannot live without Mother Earth, but the planet can live without humans.”– Evo Morales. This article will discuss in length the whole environment impact assessment in India and what the criticisms of environment impact assessment draft 2020 are.

Introduction

Environment protection is one of the important issues in India. The environment always clashes with industrial development. The state and Centre have to come up with legislation that will balance both environment and industrial development on the same path. To balance the same, the Ministry of Environment, Forest, and Climate Change came up with the Environment Impact Assessment (EIA), Draft 2020^[1]. An EIA is a process for evaluating the likely environmental impact of a proposed project; it will evaluate the amount of damage caused to the environment due to the proposed project^[2]. The EIA draft 2020 was prepared for public consultation or in accordance with the direction of the regulatory authority^[3]. So, to get the public consultation, the government has left the forum open till 11th August 2020^[4]. The Indian constitution provides a duty on the state to protect and improve the environment and to safeguard the forests and wildlife of the country^[5]. And also, the Indian Judiciary in the number of judgments observed that under the article-21 right to life includes the right to a clean environment^[6].

The environment Minister Prakash Javadekar once stated that “The Ministry has taken several policy initiatives and enacted environmental and pollution control legislation to prevent indiscriminate exploitation of natural resources and to promote the integration of environmental concerns in development projects”^[7]. 

Historical Background

The roots of the Environment Impact Assessment can be traced from the United States of America, where it was enacted in 1969 through the National Environmental Protection Act (NEPA)^[8]. In India, the idea of Environment Impact Assessment can be traced back from 1976-77, where the planning commission recommended the Department of Science and Technology to analyze the river-valley project from the point of the environment^[9]. In the year 1994, the Ministry of Environment and Forest and the Government of India promulgated the mandatory provision stating that it is mandatory to obtain the Environment Clearance Certificate before setting up new projects, which has to align with the Environment Protection Act, 1986. In 2002, an amendment to the EIA was made, which states that Environment Clearance Certificate is not required for the High-Level Investment projects; here the government is concerned with industrial development and not the environment. In the 2003 amendment, the government reiterated the idea of mandatory environment clearance and stated that any project in a high area and/or within a 15 km radius of a sensitive ecosystem or the protected area would require environment clearance; this amendment aligns with the Bio-Diversity Act of 2002. Similarly, the 2005 amendment states that on case to case basis the government has provided temporary working permission for a period of two years without having any environment clearance; this led huge exploitation of the environment. In the year 2006, a new EIA 2006 notification was drafted to replace the 1994 notification^[10]. The 2006 notification divided all the projects into two categories, where one category needs environment clearance from the central government and the other category needs environment clearance from the state government.

The illegality of post facto environmental clearance has never been in doubt. The Supreme Court declared in Common Cause vs. Union of India[11] that “the concept of ex-post facto or retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and 2006”. In Alembic pharmaceuticals case,[12] the Supreme Court even explains lucidly why such post facto clearance should not be the norm. In Indian Council for Enviro-Legal Action Vs Union of India and Others[13], the Hon’ble Supreme Court observes that Enactment of a law, but tolerating its infringement, is worse than not enacting law at all. Perhaps, the enactment of a law and diluting it to the point of redundancy is far worse than tolerating the violation of the law. 

Judicial Approach

1. In the case of Vikrant Tongad vs. Union of India, the issue is concerning the extension of the time to submit the feedback form by the public, as per the facts the Ministry of Environment, Forest, and Climate Change issued the draft of EIA 2020 in the month of March and allowed the period for the feedback till 60 days (i.e. June 11th, 2020) from the date of such issuance(i.e. April 11th, 2020) and later on due to the Covid’19 restrictions the ministry has extended the period of feedback to another 60 days but last cut-off date was mentioned till 30th June 202^[14]. In this case the Delhi High court clarified that the time limit to file the objections to the draft notification is up to 11th August 2020.

2. In the case of Union Conservation Movement Charitable and Welfare Trust vs. Union of India, the petitioner claimed that the organization has many objections concerning the draft EIA 2020 notification and there was a severe lack of publicity, but due to the lockdown restrictions, they can’t effectively communicate the same to all its members. The High Court of Karnataka directed the ministry to take sufficient steps to publicize the draft notification so that everyone will know and will give the objections and also stated to translate the draft into all 22 languages which are recognized in Schedule by the Indian Constitution. 

3. In the case of the Department of Mines & Geology, the state of Punjab vs. State Level Environment Impact Assessment Authority, Punjab, and the appellant filed an environment clearance application before the State Expert Appraisal Committee (SEAC) for mining minor minerals from the river, where the State Expert Appraisal Committee granted the environment clearance^[15]. The respondent issued the notice to the appellant to show cause why miming environmental clearance granted and not pleased with the appellant response and cancelled the clearance. The appellant challenged such cancellation where the court observed that the revocation was valid because the expert committee report shows that the ground reality was different from what was projected by the appellant in its application filed by the appellant for the grant of the environmental clearance.

4. In the case of T.N. Godavarman Thirumulpad vs. Union of India, the supreme court observed that the mechanism under the EIA notification dated 19.09.2006 issued by the government about processing, appraisals, and approval of the projects for the environment clearance is deficient in many aspects and what is required is a Regulator at the national level having its offices in all the states which can carry out an independent, objective and transparent appraisal and approval of projects for environmental clearances and which also monitor the implementation of the conditions laid down in the environmental clearances.^[16] 

Criticism On Environment Impact Assessment Draft, 2020:

1. The first and foremost criticism against the Environmental Impact Assessment draft 2020 is that the draft failed to recognize the rights of Adivasi’s, who have most affected the community, and also there is no mention of the word ‘Adivasi’ in the whole notification.
2. The draft states that if any project is named as strategic by the central government then those projects which are named as the strategy can function without getting any environmental clearance. Here one can observe that the central government has discretionary power so that even though the state did not accept the project, the central government can bypass the state decision and can allow the project by inserting the project under the strategic category.
3. The draft allowance posts facto clearance which means that any project can start its functioning without getting the clearance certificate and letter by paying a small fee the project can apply for environmental clearance.
4. The response time for the public to give feedback regarding a project is reduced from 30 days to 20 days. This draft neglected the scope for public complaint, which is a violation of freedom of speech and expression under article-19 of the Indian Constitution.
5. Many important industries that need public consultations like petroleum, mines, dams, and highways are exempted from the environment impact assessment process.
6. This draft state that the projects which are exempted from environmental clearance are also exempted from wildlife clearance.
7. As per the 2006 environment impact assessment with clans’ grasslands and Marsh, lands are considered as ecologically sensitive areas but this has been removed by the new draft of 2020 from the category of the ecologically sensitive area
8. Earlier as per 2006 notification the exemption was given to projects that will occupy the land of 20,000 sq. mts. but the 2020 draft increases the land limit to 150000 sq. mts. 

Conclusion:

The Indian constitution imposes a duty on the state to protect and improve the environment and to safeguard the forests and wildlife of the country. EIA is a good tool to evaluate and assess the impact of any industry or any construction over the environment. That is why it is critical to have a balanced law for the same. Its initiation can be traced during the mid-twentieth century. Recently, government presented EIA Draft 2020 which has certain very significant loopholes like absence of “Adivasi” from the whole draft, lethargic laws for the compulsion of EIA, unreasonable exemption of states from wildlife, etc. These all are very significant issues regarding the seriousness of the government for environment. There are many provisions clashing the interest of the society as well as the environment. Thus, it deserves to have a close inspection of EIA Draft 2020 again.

ABOUT THE AUTHOR

The Author, Adv. Ms. Himanjali Gautam is an Advocate at the Supreme Court of India, Founding-Partner at Chambers of Himanjali Gautam, Ex-President- Law Centre 2, Faculty of Law DU, Columnist, Public Speaker and TV Personality.

You may reach out at- chambersofhimanjaligautam@gmail.com 

Twitter Handle- @himanjaligautam

Linkedin Account: linkedin.com/in/himanjali-gautam-b76320a3

REFERENCES

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[1]G.Ananthakrishnan, What are the Key changes in the Environment Impact Assessment Notification 2020?, THE HINDU, Aug. 2, 2020, 11.22 AM),  https://www.thehindu.com/sci-tech/energy-and-environment/the-hindu-explains-what-are-the-key-changes-in-the-environment-impact-assessment-notification-2020/article32249807.ece  

[2] What is EIA2020? How does it water down the existing policy?, THE WEEK, (Aug.10, 2020 12;24 AM),

https://www.theweek.in/news/biz-tech/2020/08/10/explained-what-is-eia-2020-how-does-it-water-down-the-existing-policy.html

[3] The Environment Impact Assessment Draft, 2020, §. 3, cl. 23, Acts of Parliament (India)

[4]Asmita Bakshi, EIA Draft 2020: “Violence of Environmental law is seen as development’, MINT,(Aug.17,2020, 10:00 AM), https://www.livemint.com/mint-lounge/features/eia-draft-2020-violation-of-environmental-law-is-seen-as- development-11597593043757.html  

[5]The Constitution of India,1950. Art.48 A

[6] The Constitution of India,1950. Art.21

[7] Srestha Banerjee, EIA notification amended to bring small scale mining under its ambit, Down to Earth, (January 28, 2016), https://www.downtoearth.org.in/news/mining/eia-notification-amended-to-bring-small-scale-mining-under-its-ambit 52628#:~:text=After%20years%20of%20deliberation%2C%20the,mining%20projects%20under%20its%20ambit.

[8]Historical Background of EIA,  https://nitsri.ac.in/Department/Civil%20Engineering/CWE_222_Lectures_19,20,21.pdf (last visited on Feb.6, 2021)

[9] Centre for Science and Environment, https://www.cseindia.org/understanding-eia-383#:~:text=The%20Indian%20experience%20with%20Environmental,projects%20from%20an%20environmental%20angle.&text=The%20MoEF%20recently%20notified%20new%20EIA%20legislation%20in%20September%20200. (last visited on Feb. 6, 2021)

[10] Jay Mazoomdar, Reading the draft Environment Impact Assessment norms, and finding the red flag, Indian Express,(Aug.10, 2020, 10:14 AM) https://indianexpress.com/article/explained/draft-environment-impact-assessment-norms-explained-6482324/    

[11] Common Cause vs. Union of India (2017) 9 SCC 499

[12] Civil Appeal No: 1526 of 2016 dated 01.04.2020

[13] Indian Council For Enviro-Legal Action Vs Union of India and Others 1996(3) SCALE 579

[14] Vikrant Tongad vs. Union of India, W.P.(C) 3747/2020 & CM APPL.13426/2020

[15] Department of Mines & Geology, state of Punjab vs. State Level Environment Impact Assessment Authority, Punjab, MANU/SC/ 1585/2019

[16] T.N. Godavarman Thirumulpad vs. Union of India, MANU/SC/0028/2014

In this article, it has been argued that the without the recommendation of a constituent assembly for J&K, efforts to repeal the clause are legally suspicious.[1]

The Constitutional Order (C.O.) 272 brought by the Government of India on 5 August 2019 made Article 370 inoperative. This was possible because of the inclusion of sub clause to Article 367[2]. This could be one of the most consequential changes that has taken place after the 1989 outbreak of the insurgency or the 1998 nuclear tests by India and Pakistan.[3]So, let’s try to understand the legal provisions and the history. Article 370 was included in the constitution as temporary provision for J&K. Applicability of the Indian Constitution is dealt by Article 370(1)(c) and 370(1)(d). Article 370(1)(d) states that it is possible to make other provisions of the Constitution applicable to J&K with such “modifications as the President may specify by order”[4]Article 370(3) states that the president can cease the entire article via presidential order only if constituent assembly of J&K recommends to do.

This is where the inclusion of Article 367 comes in, as it changes the words “constituent assembly of the state” to “legislative assembly of the state.” The government also decided that under governor’s rule, the recommendation of governor to pass C.O.272 is equivalent to recommendation of the legislative assembly which currently doesn’t exist. This makes Government both the giver and recipient of consent, which is violative of the original provision because the government cannot replace State Government with an unelected Governor and Constituent Assembly of the State with the Legislature of the State. Since the reason behind giving decision making powers under Article 370 to the Constituent Assembly and State Government was that it would enable the will of the people of the said state to be reflected in any change in special status.[5]

So, although the president doesn’t have the power to amend Article 370 itself, but indirectly that is what the Presidential order purports to do. Under Article 370(1)(c), Article 370 is already applicable to J&K. Under Article 370(1)(d) the President’s has the power to modify and apply provisions of the Constitution to J&K other than Article 370. Since, Indian Constitution is now applicable, J&K now has two provisions that are contradictory to each other. As Article 367(4)(d) states that Constituent Assembly must be read to mean J&K Assembly but Article 370(3) states that the Constituent Assembly of J&K can recommend the abrogation of Article 370. This is problematic as the president is indirectly doing what he cannot do. President has exceeded than the power given to him under Article 370(1)(d) as Keshavananda Bharati case established that a “a constitutional functionary cannot use the powers given to him under the Constitution to do to the Constitution that which the Constitution never intended for him to do.” Even many supreme court decisions have established the fact that since the Constituent Assembly of Kashmir dissolved itself without making recommendation.so Article 370 is a permanent provision. Finally, the principles of legislative interpretation demand that, when it is vague, the meaning of a rule needs to be inferred through its own wording. The plain sense of the original provision should not be overruled by an interpretation clause i.e. Article 367(4)(d) cannot override Article 370(3).

Article 370(1)(d) allows the President to change only the current provisions of the Constitution when they are made applicable to J&K but President’s power to legislate provision in this way is suspect since he added a new provision i.e. Article 367(4).Since, J&K is actually under the President’s rule, the Presidential Order is also troublesome. As the provision for securing the approval of the J&K Assembly was dispensed with. The words ‘consultation’ and ‘ concurrence ‘ used in Article 370 are crucial as it demonstrates the artfulness of maintaining the preservation of the autonomy of Jammu and Kashmir. Can the President himself make a decision like this based on the imposition of the President’s Rule in a State? It is a violation of the pledge of India to federalism.[6].

“Ultimately no one people can keep another people in subjection against their will.” [7] There is another explanation why it is not possible to consider Article 370 as a part of the basic structure. The foundation of the relationship between the Union of India and the State of Jammu and Kashmir since independence has been that the will of the people of Jammu and Kashmir with respect to their State would be supreme. This is demonstrated by the comments made by Gopalaswami Ayyangar in the Constituent Assembly Debates, who at the time of incorporating Article 370 (then Article 306A) into the Constitution, pointed out that “that the will of the people, through the instrument of a constituent assembly, will determine the Constitution of the State as well as the sphere of Union jurisdiction over the State”.Also, the elected representative of the people of Jammu and Kashmir are ones who have the power to decide on the degree of legal autonomy that can be enjoyed by the state. Hence, people of state through their elected representatives should have had been given the choice to decide whether to put an end to Article 370 or not and accept the constitution as a whole. This way the basic structure of doctrine wouldn’t have stood in the way. To take fundamentally permanent decisions during the President’s rule, the legal criterion is that they must be necessary to achieve the goal for which they imposed the president’s rule in the state. But in this case, it fails to meet this criterion.[8]

While the change in the regime in August 2019 gave a chance to reset Kashmir but due to COVID 19 pandemic there was no “economic growth nor political devolution or grievance redressal, mass quasi-violent resistance may resume and even intensify.” [9]

In addition, when the bill was passed, the whole state of Jammu and Kashmir was turned into a public prison, the political representatives of the state were imprisoned at home, the general public of the state was stripped of their constitutional rights, section 144 of the Criminal Procedure Code, which forbids the assembly of no more than 5 persons at a place is enforced.

This was a blatant breach of the constitutional right to life and liberties, of the people of Jammu and Kashmir, as the people of the state had no say in their state’s policy, and the union government cleverly took it bypassing the various prohibitions guaranteed under India’s constitution. Furthermore, the suspension of telephone, broadcasting and internet networks has impeded the universal right to freedom of speech and expression.[10]

BIBLIOGRAPHY

1. Alok Joshi and Rahul Kumar, Article 370 and the Reorganisation of Jammu and Kashmir,1, Institute of Peace C.S, 5,  1-9 (2019)

• Anubhav Lamba, Is Abrogation Of Article 370 Unconstitutional, L.S.I,( Dec.13,2020, 7:30pm), Is Abrogation Of Article 370 Unconstitutional (legalserviceindia.com)

• Balu g nair, Abrogation of Article 370: can the president act without the recommendation of the constituent assembly?, 3, INDIAN LAW REVIEW, 255-279(2019)

• Jeet H Shroff, Four Reasons Why the Presidential Order on Kashmir is not kosher,yet, The Hindu B.L (Dec.14,2020, 7:30pm), Four reasons why the Presidential Order on Kashmir is not kosher, yet – The Hindu BusinessLine

• Kashish Mahajan, The Abrogation of Article 370 and Bifurcation of Jammu and Kashmir – A Bridge Too Far, 9 INDIAN J. Const. L. 106 (2020).

• S. P. Sathe, Article 370: Constitutional Obligations and Compulsions,25,Economic P.W, 932-933 (1990)

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[1] Balu g nair, Abrogation of Article 370: can the president act without the recommendation of the constituent assembly?, 3, INDIAN LAW REVIEW, 255-279(2019)

[2] Alok Joshi and Rahul Kumar, Article 370 and the Reorganisation of Jammu and Kashmir,1, Institute of Peace C.S, 5,  1-9 (2019)

[3] Sameer P. Lalwani and Gillian Gayner, India’s Kashmir Conundrum: Before and After the Abrogation of Article 370 , US I.O PEACE, 3,3-4 (2020)

[4] Jeet H Shroff, Four Reasons Why the Presidential Order on Kashmir is not kosher,yet, The Hindu B.L (Dec.14,2020, 7:30pm), Four reasons why the Presidential Order on Kashmir is not kosher, yet – The Hindu BusinessLine

[5] Supra note 2

[6]  Supra note 4

[7] S. P. Sathe, Article 370: Constitutional Obligations and Compulsions,25,Economic P.W, 932-933 (1990)

[8] Kashish Mahajan, The Abrogation of Article 370 and Bifurcation of Jammu and Kashmir – A Bridge Too Far, 9 INDIAN J. Const. L. 106 (2020).

[9] Supra note 3

[10] Anubhav Lamba, Is Abrogation Of Article 370 Unconstitutional, L.S.I,( Dec.13,2020, 7:30pm), Is Abrogation Of Article 370 Unconstitutional (legalserviceindia.com)