Analysis| Kashmir: Supreme Court will have the last word on Article 370 conundrum

[dropcap]A[/dropcap]FTER the government changed the nature of the relationship between the state of Jammu and Kashmir and the Indian Union through a recent constitutional amendment, Article 370 is at the centre stage again.

The constitutional validity of the government's move to scrap the special status of pre-Partition days' princely state and divide it into two Union Territories is being questioned by many on several grounds.

Article 370 came into force on January 26, 1950. It had three clauses. Amongst other things, clause 1 provided for the issuance of the constitutional order or Presidential order whereby various provisions of the Constitution of India 1950 could be applied to that state. Clause 2 is not very germane for the present discussion. Clause 3 gave the power to the President of India to issue an order to render Article 370 inoperative or redundant but with an important caveat – that such an order could be issued only on the 'recommendation of the Constituent Assembly of the State of Jammu and Kashmir'.

Only Clause 1 (in its present amended version) of Article 370 survives. Clause 2 and 3 are scrapped. These changes have created a raging controversy and have two predominant dimensions: legal and political. This piece seeks to address only the legal part of this conundrum, leaving the political aspect to be discussed by writers more politically accomplished than yours truly!

The first-ever constitutional order (C.O No. 10) was issued under clause 1 of Article 370 by the President of India on January 26, 1950. This order was repealed and replaced by a comprehensive constitutional order No.48 dated May 14, 1954 (C.O of 1954) which held the field till August 5, 2019.

This C.O of 1954 provided for application of certain provisions of the Constitution of India to the state of Jammu and Kashmir. As on August 2019, roughly 260 out of the 395 Articles of the constitution of India were made applicable by the C.O of 1954 and by subsequent constitution orders amending and adding to the parent C.O of 1954.  Ergo, those provisions of the constitution of India which were not extended to the Jammu and Kashmir, either by the parent C.O of 1954 or its subsequent amendments, were not applicable to the state and in those aspects, the Jammu and Kashmir was governed by its own constitution of 1956 and other applicable laws, some of which were of the Dogra Rule vintage. (The 'State Subject' laws, which has been subject of heated discussions in recent times, giving exclusive rights to the permanent residents of the State of Jammu and Kashmir in matters of public employment, education and residence, to the exclusion of Indian citizens from other states, were issued by the then Maharaja in 1927 and 1931 and which were protected by Sections 6 to 9 of Jammu and Kashmir Constitution as well as Article 35 A of Constitution of India)

There were approximately 49 subsequent constitutional orders which were issued under clause 1 of Article 370 and which became a part of the parent C.O of 1954. Article 35 A too was inserted in the Constitution of India through the constitutional order of 1954.

Vide constitutional order 272 dated August 5, 2019, C.O No. 10 of 1954 now stands repealed in its entirety (thereby knocking out Article 35 A from the constitutional scheme of things) and all provisions of the constitution of India are held to be made applicable to Jammu and Kashmir. By another constitutional order No. 273, only the amended clause 1 of Article 370 is kept alive and the other two clauses namely clauses 2 and 3 of Article 370 as it then existed, are scrapped.

The Parliament has also passed the 'J&K Reorganization Act 2019', which would now define the jural relationship between the state and the Union of India post-August 5 amendments to Article 370.

Now the question, could the Parliament have done what it did on August 5 and thereafter? The constitutional lodestar – Kesvananda Bharti's case [(1973) 4 SCC 225), 13 Judges, Supreme Court] and a prolific stream of subsequent judgments have held that only that part of the Constitution of India which forms a part of the 'Basic Structure' is beyond the otherwise omnibus amending powers of the Parliament under Article 368 of the Constitution of India.

Admittedly, Article 370 is not a part of the 'basic structure' of the Constitution of India. Therefore, there are no express or implied constitutional restrictions on the constituent powers, under Article 368, of the Parliament, to amend to Article 370. However, the Parliament did not opt to go through the Article 368 route to amend Article 370. Instead, it chose to issue a constitutional order under Article 370(1), amending Article 370 itself.

The question whether the Parliament, taking recourse to a constitutional order issued under Article 370(1) could make such far-reaching changes came up for adjudication in 'Puran Mal Lakhanpal's case [(1962 (1) SCR 688 – 5 Judges, Supreme Court]. The vires of Article 35A was challenged. It was argued that Article 370 gives the power to the Parliament to apply or not to apply (as the case may be), provisions of the Constitution. It does not give Parliament to virtually create a  new article – Article 35A – and apply it to the state of Jammu and Kashmir alone. The Supreme Court repelled this argument and held that that by virtue of a Constitutional Order issued under Article 370(1), Parliament is capable of applying the COI, with such additions and modifications to the state of Jammu and Kashmir, which would also include insertion and application of fresh and standalone Constitutional provisions like Article 35A (which though was a part of Constitution of India, applied only to the state of Jammu and Kashmir and to no other state in the Union).

In view of the 'carte blance' given to the Parliament by the Supreme Court, there is no reason why the same clause (Article 370) cannot be put into use to amend the provisions of Article 370 itself. Therefore, the Parliament was well within its legislative competence to amend Article 370 itself by issuing Constitutional Orders No 272 & 273 India, materially modifying the provisions of Article 370.

However, the August 5 C.O No. 272 suffers from a serious legal flaw. As noted above, the proviso to clause 3 of Article 370 stated that before any order is issued by the President, making Article 370 inoperative, the recommendation of the Constituent Assembly of the state of Jammu and Kashmir is a sine qua non. Since the Constituent Assembly for the state has ceased to function in 1956 (after completing its task to frame the Constitution of Jammu and Kashmir, 1956) an argument was sought to be canvassed that Article 370 has attained permanence despite Article 370 being placed in chapter XXI of the Constitution of India – "temporary, transitional and special provisions".

This argument of permanence is untenable, for the reason that Article 370 is not a part of the 'basic structure' and therefore cannot cloak itself with the aura of permanence. But C.O No. 272 of August 5 seeks to replace the words "Constituent Assembly of the State of J&K" appearing in the proviso to Clause 3 of Article 370 with the words "Legislative Assembly of the state". This is impermissible and clearly contrary to the proviso of Article 370(3).

But the Parliament ought to have taken recourse to Article 368, to delete this proviso all together and then brought about CO No. 272 and 273 rather than replacing the Constituent Assembly with the Legislative Assembly, by adopting a dubious method of a constitutional order under Article 370(1). Once the proviso to clause 3 of Article 370 itself was deleted by exercising the plenary powers under Article 368, the sole constitutional fetter on making Article 370 inoperative would have been obliterated thereby avoiding the present susceptibility that attaches itself to CO No. 272.

The Supreme Court is already seized of half a dozen petitions challenging the constitutional validity of the recent changes in the Article 370 regime. The final word, as it should be, will be that of the Supreme Court of India. We live in, to put it mildly, interesting times, legally and politically.

(The author practises in the Supreme Court and is a former standing counsel for the state of Jammu and Kashmir in the Supreme Court. Views are strictly personal.)