In re Article 370: Judgment reserved on the grand constitutional battle

After a 16-day marathon, we will have to wait and watch which side the camel sits on, or whether it maintains a delicate balance, writes senior advocate Mohan V. Katarki.

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THE five-judge Constitution Bench comprising Chief Justice of India Dr D.Y. Chandrachud and Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant, after fully hearing the grand constitutional battle for four weeks, have finally reserved their verdict.

In re Article 370 involves the question of neutering Article 370 of the Constitution of India which had guaranteed autonomy to Kashmir within the constitutional setup and the international law on the creation of States

It also involves the question of bifurcation and downsizing of Jammu and Kashmir (J&K) state into two Union territories as Jammu and Kashmir, and Ladakh.

Millions watched the legal opera on a live streaming facility. The judges frequently put searching questions to the counsels, who passionately fired back and, on occasion, crossed swords among themselves, but within the bounds of the traditions of the Bar traditions, despite high passions.

When judges expressed their views to elicit a response from counsel, chatbox handlers were quick to grab them.

Some of these exchanges made headlines in dailies and blogs.

Before closing the great battle, arguments touched on a sensitive chord when judges sought an affidavit from one of the petitioners declaring his allegiance to the Constitution of India.

A political decision?

The decision to neuter Article 370 was a political decision to withdraw the autonomy granted to J&K, which was a sovereign Princely State before its ruler Maharaja Hari Singh signed the Instrument of Accession on October 26, 1947.

The accession is an act of the State and any dispute arising from the interpretation or its validity is non-justiciable.

If Article 362 of Constitution of India is applied, the matter is out of the judge's hands!

However, the challenge to the illegality in the Constitution (Application to Jammu and Kashmir) Order, 2019 (Presidential Order C.O. 272) (C.O. 272)  stems from the allegation of breach of the proviso to Article 370(3).

The puzzle in the proviso of Article 370

The President of India issued the C.O. 272 on August 6, 2019 declaring that Article 370 guaranteeing autonomy to the state of J&K inoperative.

He was empowered to so declare so under clause (3) of Article 370, but subject to the fulfilment of the mandate in its proviso.

Clause (3) Article 370 cannot be exercised unless there is a recommendation from J&K's Constituent Assembly. 

The said proviso says in emphatic words that: "Provided that the recommendation of the Constituent Assembly of the State referred to the clause (2) shall be necessary before the President issues such a notification."

Also read: Article 370 was a "right loss", through which people of J&K gained a lot, Tushar Mehta on Day 11 of Article 370 hearings

The Constituent Assembly referred to in clause (2) of Article 370 is J&K's Constituent Assembly which was constituted on May 1, 1951 by Karan Singh, the then rajpramukh and head of state of J&K by a proclamation to frame the Constitution of J&K. 

The proclamation abolished the hereditary rulership of the Dogra family and assumed to the rajpramukh all remaining powers in the territory of J&K.

However, after framing the Constitution of J&K and ratifying the accession to India on February 15, 1954, the J&K's Constituent Assembly dissolved by its own resolution on November 17, 1956, with effect from January 26, 1957— the day when the Constitution of J&K came into force.

'Temporary' say the law officers of the President

During the hearings, the law officers of the President vehemently defended the proclamation by relying on the word "temporary" in the title of the said Article 370.

They argued that constitutionally guaranteed autonomy was only a temporary affair and it had to be knocked off.

They argued the proviso which mandates the recommendation of J&K's Constituent Assembly has fallen into desuetude since it does not exist anymore.

Therefore, there is none to move the recommendation to operate clause (3) of Article 370, they argued. 

They further argued that the President by issuing C.O. 272 , under clause (1) of Article 370 on August 5, 2019— a day before the proclamation, has modified clause (3) of Article 370 to read "legislative assembly of the State" instead of "Constituent Assembly of the State".

This was done by modifying Article 367 to complete the formality.

They further argued that the power of recommendation to operate Clause (3) of Article 370 is exercisable by the Parliament during President's rule.

The battery of eminent counsels for the challengers passionately argued that, since  J&K's Constituent Assembly had ceased to exist, the power of self-annihilation reserved in clause (3) of Article 370 had itself become inoperative.

They also said, C.O. 272, issued on August 5, 2019 under Article 370(1), declaring that the Constituent Assembly of J&K mentioned in the proviso to Article 370(3) shall be read as legislative assembly is not a modification, but a substantial change amounting to a Constitutional amendment.

Therefore, the clause 2(d) of C.O. 2019 is ultra vires of the said provision and is unconstitutional.

The legalism of Article 370

The legalism of Article 370 is beyond semantics mired in the political changes that preceded and succeeded in the independence of India and the integration of the Princely States.

Constitutional history reveals that upon defeating Sikhs during the last Anglo–Sikh war in 1846, the British East India Company annexed J&K, including Ladakh.

But, similar to what happened to Mysore after the fall of Tipu Sultan in 1799, the British did not choose to administer J&K directly.

Instead, the British decided to install a member of the Dogra family, who had been a wazir in the Sikh empire, and established the Princely State of J&K under the Treaty of Amritsar in 1846.

As was the case with any Indian State under the hereditary princes, the Dogra rulers were not absolute sovereigns.

The State, in the eyes of international law, was a vassal or feudatory of the British Crown. External sovereignty was completely vested in the British Crown.

Also read: "Article 370 a mechanism through which the people of J&K could have chosen to integrate with India," advocate Zafar Shah on Day 5

Even with regard to internal sovereignty, the ruling Dogra family was obliged to obey the orders of the British Crown through its representative, namely, the secretary of State for India and the resident, through a political mechanism popularly known as paramountcy.

This arrangement continued for almost a century.

However, on August 15, 1947, the British partitioned their territories in the subcontinent into Pakistan and India and abandoned the paramountcy over  500 plus Princely States which were being ruled by the hereditary princes. 

The Indian Independence Act of 1947 declared unequivocally that "the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States."

As a consequence of the galloping political changes, the Princely States were left free to decide their fate or future course of action.

However, what could they decide since they had no forces or military to defend themselves with?

All Princely States signed instruments of accession either with India or Pakistan depending on the contiguity, albeit some with resistance.

J&K became contiguous to both India and Pakistan on the inclusion of Gurdaspur in the dominion of India as per the Radcliffe Award.

The dilemma was that J&K had a predominantly Muslim population but a Hindu ruler in Maharaja Hari Singh.

After dithering a bit, on October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession giving the dominion of India power to make laws on three subjects— defence, external affairs and  communication. 

However, beyond this, the maharaja did not commit and retained all other powers, including residuary powers.

Clause 7 of the Instrument of Accession expressly states, "Nothing in this Instrument shall be deemed to commit in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into an agreement with the Government of India under any such future constitution." 

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

Even then, the maharaja issued a proclamation on November 25, 1949 proclaiming: "That the Constitution of India shortly to be adopted by the Constituent Assembly of India shall in so far as applicable to the State of Jammu and Kashmir, govern the constitutional relationship between this State and the contemplated Union of India."

Through this process, the maharaja integrated with India, but the bridge for integration remained under Article 370.

Unlike many rulers of Princely States, the ruler of J&K did not sign a merger agreement.

J&K was put in List II  of the Seventh Schedule along with other Princely States which had not signed merger agreements.

These non-merger States adopted an alternate method of accepting the Constitution of India by proclamation.

Under international law, the merger is complete and irrevocable upon signing the Instrument of Accession.

Anyhow, the maharaja's proclamation of November 25, 1949 accepting the Constitution of India and the subsequent ratification resolution by Kashmir's Constituent Assembly on February 15, 1954 puts the matter beyond any pale of doubt.

The Constituent Assembly of India was tasked with framing the Constitution of India for the (i) Dominion of India, (ii) the merged Princely States and (iii) the States that were ready to accept the Constitution like Mysore, Travancore and Cochin.

It probably thought it did not have the authority with regard to unwilling J&K to impose the Constitution of India beyond the three items covered by the Instrument of Accession.

Bewitched by this legal hurdle, an arrangement was worked out in the form of Article 370.

It was styled as temporary since it was hoped the maharaja would eventually transfer the remaining sovereign or constituent power to the Union of India.

But, the remaining sovereign or constituent power that maharaja had retained was transferred to J&K's Constituent Assembly constituted by his proclamation issued on May 1, 1951.

J&K's Constituent Assembly abolished the hereditary rule of the Dogra family, framed the Constitution of Kashmir and finally dissolved itself.

Thus, J&K's Constituent Assembly merged into the Constitution of J&K.

J&K's Constituent Assembly did not recommend rendering Article 370 inoperative.

One way of looking at it is that J&K's Constituent Assembly was considerate to the Union Government or President to continue the application of the Constitution by following the procedure set out in clause (1) of Article 370 and overriding the Constitution of J&K. 

Non-recommendation is not totally fatal for the operation of clause (3) of Article 370 of the Constitution.

In this scenario, what is the way out? The J&K legislature may amend the Constitution of J&K under its Section 147 and reconvene the Constituent Assembly of J&K to decide on the question of recommendation required under proviso to clause 3 of Article 370 of the Indian Constitution.

Who can guess what judges will eventually decide? Perhaps, none should hazard a guess.

The adversarial system in public law is essentially binary— it either grants prayers or rejects the challenge and upholds State's action. 

However, there can be a mix of both in the grand constitutional battles which make history.