De-operationalisation of Article 370 faces steep constitutional barriers

The 2019 Presidential Order, under which the special status of the erstwhile State of Jammu & Kashmir was dissolved, purportedly draws its power from Article 370(1)(d). Can this act withstand judicial scrutiny?

—

ON August 5, 2019, Article 370 was de-operationalised and the special status of Jammu and Kashmir (J&K) was nullified through a Presidential Order.

But does this Order satisfy the standards set by the Constitution of J&K and the Constitution of India?

Framework of Constitutional law for Jammu and Kashmir

The dominions of India and Pakistan were formed with the passing of The Indian Independence Act in 1947.

According to the British government's declaration dated June 3, 1947 (also known as the Mountbatten Plan), 584 'princely states' under British suzerainty in the Indian subcontinent were given an opportunity to accede to either dominion.

Facing a popular rebellion against his rule, and with the incursion of tribesmen and Pakistani military into J&K, as a last resort, to maintain his kinship over the then-independent 'princely state' of J&K, the then ruler Maharaja Hari Singh signed an Instrument of Accession (the document), on October 10, 1947.

The Instrument of Accession explicitly prohibited the dominion legislature from making any laws compulsorily authorising the acquisition of land for any purpose.

The document was a declaration made by the maharaja and the then Governor General of India, Lord Louis Mountbatten, to conditionally accede to the dominion of India.

The document added that the accession shall not be deemed to be a commitment in any way to "acceptance of any future Constitution of India".

The document limited the power of the dominion legislature (later exercised by the Parliament of India after the Constitution was adopted) to "defence, external affairs, and communications". (That is, as per Article 370(1)(d), except for the aforementioned subjects, the Parliament of India had no power to make laws.)

Also read: Article 370, a curtain-raiser: Factum valet or redemption of federalism? Supreme Court to decide

According to the document, its terms shall not be varied "by any amendment of the Act or of the Indian Independence Act, 1974" unless such amendment is accepted by the ruler of J&K by an instrument supplementary to that instrument.

The document explicitly prohibited the dominion legislature from making any laws compulsorily authorising the acquisition of land for any purpose.

The same was mentioned in the government of India's White Paper on J&K and in the Constituent Assembly Debates.

In a letter dated October 27, 1947, the Governor General conveyed his government's intention to accept the accession with the "wish that, as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of State's accession should be settled by a reference to the people."

Since the soil could not be cleared of the invaders and normalcy could not return, the accession gained a de facto permanent status.

Subsequently, on the insistence of the then Prime Minister of India Jawaharlal Nehru, a popular leader of J&K agreed to provide a concrete shape to the relation between India and J&K, and not leave the same as amorphous, without any mention of the nature or the contours of the aforementioned relation in the Constitution.

On the insistence of the then Prime Minister of India Jawaharlal Nehru, a popular leader of J&K agreed to provide a concrete shape to the relation between India and J&K. 

This was the origin of Article 370, (Article 306A of the Draft Constitution).

The Article provided for application of the provisions of Constitution of India corresponding to the subjects mentioned in the Instrument of Accession in "consultation with the government of the state".

The Article also provided that application of other provisions of the Constitution of India with the "concurrence of the government of the state".

If such concurrence was given before the convening of the Constituent Assembly for framing the Constitution of the State, the concurrence was to be put before the Constituent Assembly for ratification.

The Article also provided for cessation of Article 370 or its continuance with exceptions or modifications as the President may notify on the recommendation of the Constituent Assembly of the State.

Herein, the Constituent Assembly of J&K agreed 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 read: Supreme Court hints that it may hear petitions on delay of elections in J&K after hearing petitions on Article 370

Subsequently, to give final shape to the relationship between the Union of India and the state of J&K, a Constituent Assembly was formed which adopted the Constitution of Jammu and Kashmir on November 11, 1956.

The Constituent Assembly of J&K was dissolved on January 1, 1957.

Thus, after 1956, Article 370, Instrument of Accession and the Constitution of the J&K laid down a framework of constitutional law in respect of J&K which governs the relation between the J&K and the Union of India.

Events of August 5, 2019

The Constitution (Application to Jammu and Kashmir) Order, 2019 [C.O. 272] was issued. The Presidential Order, purportedly in exercise of powers under Article 370(1)(d), applied all the provisions of Constitution of India, as amended from time to time, to J&K.

To give effect to such an application of the Order, concurrence of J&K government is necessary, but since J&K was then under President's rule and had no council of ministers, the requirement of concurrence with J&K government was 'effectively' dispensed with, and concurrence of governor was deemed to mean concurrence of Indian government.

The point to be noted here is that to give effect to such an application of the Order, concurrence of J&K government is necessary, but since J&K was then under President's rule and had no council of ministers, the requirement of concurrence with J&K government was 'effectively' dispensed with, and concurrence of governor was deemed to mean concurrence of Indian government.

For the application of provisions of the Indian Constitution to J&K under the abovementioned Presidential Order, a new sub-clause 4(d) to Article 367 was also inserted.

Article 367 is the interpretation clause of the Constitution. The most significant modification that was made in Article 367 was addition of new a sub-clause (4)(d) which stating that the words "Constituent Assembly " in Article 370(3) shall read as "legislative assembly of the State".

In this way, the problem of the necessary recommendation of Constituent Assembly of J&K for abrogating Article 370 was sought to be overcome by defining the "Constituent Assembly " in Article 370(3) to be read as the legislative assembly of J&K.

By doing so, it became possible for the legislative assembly of J&K which due to the President's Rule that was imposed upon the State as per Article 356, impliedly gave power to the Parliament, to exercise the power of the Constituent Assembly— recommend the abrogation of Article 370.

Another major issue is the transference of the 'will of the people'. Can the will of the people of J&K be replaced by the will of the people of the whole of India as manifest in the Parliament?

By applying the aforementioned interpretation of the definition of Constituent Assembly under Article 370 (3) so as to mean legislative assembly, which due to operation of President's Rule was further interpreted to mean the Parliament of India, a resolution recommending amendment of Article 370 was moved in Rajya Sabha.

The said resolution states that all clauses of Article 370 shall cease to operate except clause 1 which states that all the provisions of the Indian Constitution, as amended from time to time, shall apply to J&K.

Also read: Disagreeing with govt is not sedition, says SC; dismisses PIL against Farooq Abdullah for statements against Art 370 abrogation; imposes costs on petitioners

The resolution was passed in Lok Sabha the next day and the President Order [C.O. 272] was effectively inserted into the Constitution of India and Article 370 was de-operationalised.

Jammu and Kashmir Reorganisation Bill, 2019 was also introduced, under which J&K was reconstituted into two Union territories— Jammu & Kashmir, and Ladakh.

The Bill was signed by the President on August 8, 2019 and became effective on October 31, 2019.

Significant barriers

The President Order [C.O. 272], according to which all provisions of the Constitution of India could be applied to J&K, was issued purportedly in exercise of powers under Article 370(1)(d).

But any such comprehensive application of the Constitution of India is beyond the mandate of the powers contained in Article 370(1)(d).

The Order violates the express provisions of the Constitution of Jammu and Kashmir.

According to the State Constitution any concurrence in contravention of the Constitution of J&K cannot be given by the State government, as the State government itself functions bound by the provisions of the said Constitution.

The circuitous manner in which Article 370 is sought to be de-operationalised finds no basis either in the Constitution of India or in the Constituent Assembly Debates.

Furthermore, in so far as the Constitution (Application to Jammu and Kashmir) Order, 2019 [C.O. 272] violates the Constitution of J&K, it is in contravention of Constitution of India since the Constitution of J&K is envisaged in and avails the protection of the Constitution of India.

No provision that supersedes the Constitution of J&K cannot be instituted either as an amendment to the Constitution of J&K or as a constitutional amendment under Article 368 of the Constitution of India, provided the same meets the criteria of basic structure doctrine also.

In any case, assuming that the Constitution (Application to Jammu and Kashmir) Order, 2019 [C.O. 272] was issued within the limits of Article 370(1)(b)(ii), the said Order does not fulfil the procedural requirement of concurrence of governor acting "on the aid and advice of the council of ministers", as there was no council of ministers in the State and President Rule was in operation.

Where all the provisions of the Constitution of India are applied to J&K, as has been done in the instant case, it essentially affects the entire gamut of the Constitution of J&K.

Thus, any such exercise of power is in the nature of or partakes of the character of constituent power. Hence, such an Order cannot be issued without taking into account the 'will of the people' of Jammu & Kashmir, whether through Constituent Assembly, legislative assembly or direct reference to the people.

It is clear that the aforementioned Order, purportedly under Article 370(1)(d), actually attempts to exercise the power contained in Article 370 (3), i.e., cessation of operation of Article 370.

But since recommendation of Constituent Assembly of J&K could not have been gained for the purpose, as required under Article 370 (3), the Order is sought to be issued under Article 370(1)(d), even though the latter provision of the Constitution lacks the mandate of the same as delineated above.

The subsequent resolution of Parliament recommending the de-operationalisation of Article 370 faces the uphill task of validation as the recommendation of the Constituent Assembly of Jammu and Kashmir for the purpose of Article 370 (3).

It was done by redefining the Constituent Assembly as the legislative assembly of the State, and thus, due to the operation of President's Rule, purportedly enabling the Parliament to exercise the aforementioned power to recommend de-operationalisation of Article 370.

A fundamental question here is whether 'interpretation' can be used to completely modify the provisions in order to effectuate amendment through the back door? Is this not in contravention of the provisions of the Constitution of India?

The scope of interpretation is limited to elucidation, explanation and modification where necessary. The need for interpretations arises when there is a gap in the understanding of the provision of the Constitution caused when the provisions are vague, or widely worded, or had become otiose or for any other similar cause.

The proviso to clause 3 of Article 370 explicitly mentions "Constituent Assembly which had performed its function of framing the Constitution for the State of Jammu & Kashmir" and was dissolved without recommending revocation of Article 370; thus envisaging Instrument of Accession, Article 370 of the Constitution of India and the Constitution of J&K as the framework of constitutional law for J&K.

In any case there is nothing in the Constitution of India or the Constitution of J&K to reconstitute a Constituent Assembly as mentioned in Article 370 of the Constitution of India. Thus, there was neither the possibility nor the occasion for such interpretation.

Another major issue is the transference of the 'will of the people'. Can the will of the people of J&K be replaced by the will of the people of the whole of India as manifest in the Parliament?

Any such interpretation is liable to fall foul of the basic feature of popular sovereignty, more so when the requisite will of a particular set of people is with respect to framing of a constitution for themselves.

It was specifically for the Constituent Assembly of J&K to frame the Constitution for the State and to decide the fate of Article 370, as envisaged under the then Article 306 A.

A reference to this can be found in the detailed exposition of Article 37 in the Constituent Assembly Debates by N. Gopalaswami Ayyangar, an Indian civil servant and statesman who worked as the Prime Minister of the princely state of J&K and thereafter as a minister in the very first cabinet of independent India, and served on the Indian Constitution's drafting committee.

"[S]o the provision is made that when the Constituent Assembly of the State has met and taken its decision both on the Constitution for the State and on the range of federal jurisdiction over the State, the President may on the recommendation of that Constituent Assembly issue an Order that this Article 306A shall either cease to be operative, or shall be operative only subject to such exceptions and modifications as may be specified by him.

"But before he issues any order of that kind, recommendation of the Constituent Assembly will be a condition precedent. That explains the whole of this Article."

The circuitous manner in which Article 370 is sought to be de-operationalised finds no basis either in the Constitution of India or in the Constituent Assembly Debates.

Thus, the action of the Union government faces stiff constitutional and legal tests ahead.