A lot of us have been led to believe that Article 370 has been repealed, abrogated, revoked, scrapped and so on, all meaning the same — that Article 370 is no longer part of the Indian Constitution by virtue of a Presidential Order passed on August 5, 2019. Let’s begin there.
The Presidential Order in questions starts with the following words: “In exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the Government of State of Jammu and Kashmir, is pleased to make the following Order:…“. How can a Presidential Order issued under Article 370 repeal or abrogate or revoke or scrap or delete the same provision? That would create an absurd paradox wherein an order draws its legal force from the provision it repeals, and in doing that nullifies itself. So, well, Article 370 has gone nowhere. It’s very much a part of the Constitution, and its removal would require a Constitutional Amendment.
Sub-clause 1 of Clause 1 of the Presidential Order says that the Order may be called “the Constitution (Application to Jammu and Kashmir) Order, 2019,” and Sub-clause 2 of Clause 1 of the Order provides that the 2019 Presidential Order “supersedes” the “Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time”.
Clearly, the 2019 Presidential Order replaces the 1954 Presidential Order and takes away what the concessions the 1954 Order made with regard to the application of the Indian Constitution to the state of Jammu and Kashmir, which also renders the Constitution of Jammu and Kashmir redundant and ineffective. However, to think that the 2019 Presidential Order simply takes away what a previous Presidential Order (the 1954 Order) granted and for that reason it’s a legitimate exercise of legislative power is not only a massive oversimplification but is also a majorly erroneous view because the two Presidential Orders do not stand in the same stead legally or politically. To understand that we need to have a careful look at the scheme of Article 370, which was and has been a part of the Indian Constitution as originally passed by the Constituent Assembly.
Article 370 (1) begins by declaring “notwithstanding anything in this Constitution”, thereby making it independent of all others provisions of the Constitution. Para (i) of Sub-clause (b) of Clause 1 of Article 370 [Article 370 (1)(b)(i)] limits the legislative power of Parliament with regard to Jammu and Kashmir to “matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State…“
Therefore, the Instrument of Accession governs the power of the Parliament to legislate with regard to Jammu and Kashmir by way of a Presidential Order “in consultation with the State Government” in terms of the two lists. However, Para (ii) of Sub-clause (b) of Clause 1 of Article 370 [Article 370 (1)(b)(ii)] also allows the Parliament to legislate on “such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.“
Notably, Para (i) requires “consultation” while Para (ii) demands “concurrence”, and the difference assumes significance in the context of Article 370 (2), which refers to “concurrence” as used in Article 370 (1)(b)(ii) and provides that if such “concurrence” as “referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause” obtains before the Constituent Assembly to frame the Constitution of the State is convened, the concurrence “shall be placed before such Assembly for such decision as it may take thereon.” While Article 370 (1)(b)(ii) is with regard to the legislative powers of the Parliament vis-a-vis Jammu and Kashmir, Article 370 (1)(d) is with regard to what parts of the Constitution of India extend to Jammu and Kashmir in addition to Article 1 and Article 370.
Article 370 (1)(c) declares that “the provisions of Article 1 and of this article shall apply in relation to that State“, and Article 370 (1)(d) says that “such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify…“
The 2019 Presidential Order has been issued under Article 370(1), which empowers the President to issue such orders only under Article 370 (1)(b) and Article 370 (1)(d), and since the Presidential Order deals with the extension of the provisions of the Indian Constitution to Jammu and Kashmir, it is Article 370(1)(d) under which the said Order has been issued. Therefore, Article 370 (1)(c), which makes Article 1 and Article 370 applicable to Jammu and Kashmir, stands untouched and allows no leeway to the President to abrogate or vary its application by way of a Presidential Order. The use of the expression “such other provisions” under Article 370(1)(d) reinforces the application of Article 370(1)(c) independent of Article 370(1)(d).
Article 1 defines the territory of India in accordance with Schedule 1 of the Constitution, which in turn defines the territory of the State of Jammu and Kashmir as “the territory which immediately before the commencement of this Constitution was comprised in the Indian State of Jammu and Kashmir.” Article 3 allows the Parliament to form new states and alter area, boundary or name of an existing state by law provided where the proposed Bill “affects the area, boundaries or name of any of the States“, the Bill is constitutionally required to be referred to “by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow,” and it is only after the expiry of this period that the Bill can be tabled in the Parliament.
The special status of Jammu and Kashmir notwithstanding, Article 3 demands consultation with the state legislature, which is the democratically elected legislative body, concerned in every case where the area, boundary or the name of a state is to be altered by law. The requirement is rooted in the federal character of the constitution, which is part of the Basic Structure of the Constitution as the 13-judge Constitution Bench of the Supreme Court held in Kesavanand Bharti v. State of Kerala, (1973) 4 SCC 225. Therefore, acting under Article 3 to alter area, boundary or the name of a state when the State Assembly is not in session and there is President’s Rule in the concerned State, is contrary to the letter and spirit of Article 3 because then it’s the President on both the sides, and, in effect, it’s the President consulting the President, which is an absurd position and is constitutionally indefensible. This is precisely what has been done in Jammu and Kashmir by the Jammu and Kashmir Reorganisation Act, 2019, which is clearly unconstitutional, being in contravention of the mandate of Article 3 even if we ignore the special status of Jammu and Kashmir under Article 370, the Sub-clause (c) of Clause (1) of which bars the application of Article 3 to the State of Jammu and Kashmir by necessary implication, and the bar can only be removed by a constitutional amendment to Article 370 under Article 368, which has not been carried out.
Therefore, this is a double breach of the constitutional provisions in the reorganization of the State of Jammu and Kashmir. First, the implied bar of Article 370 (1)(c) has been ignored, and, second, the necessary requirements of Article 3 have not been complied with. Instead, what has been done in the name of compliance is nothing short of a fraud on the constitution, the far-reaching ramifications of which can only be devastating for the federal character of Indian polity enshrined in the constitution as a part of its inviolable Basic Structure. Indian Constitution allows the Union to have an upper hand in certain matters, but it also makes the states autonomous in their own domains, which is what the constitutional courts have consistently held, and which is also in the best interests of a society as diverse and heterogeneous as India. True and unadulterated federalism is the soundest guarantee against local dissatisfaction festering into localized political unrest, which, in a bad case, might threaten national integrity. Thus, the federal structure enshrined in the Constitution is not a trifle to be meddled with. It is part of the Basic Structure for sound practical reasons rooted in the most elemental principles of good governance.
WITHDRAWAL OF THE SPECIAL STATUS
As far as the extension of the Constitution to the State of Jammu and Kashmir is concerned, it is principally governed by Clause 3 of Article 370, which is a non obstante clause vis-a-vis Article 370 and empowers the President in very certain terms to declare by notification “that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.” In effect, it means that if the whole of the Constitution is to be extended to the State of Jammu and Kashmir, as sought to be done by the 2019 Presidential Order, it can be done only by invoking the power of the President under Article 370 (3), which requires a recommendation — and not just concurrence — of the Constituent Assembly of Jammu and Kashmir, which was dissolved in 1956. Furthermore, the 2019 Presidential Order, having been issued under Article 370 (1), cannot control the operation of Article 370 (3). Instead, Article 370 (3) effectively bars the extension of the Indian Constitution in totality to the State of Jammu and Kashmir and thereby puts an outer limit to the exercise of Presidential power under Article 370 (1). In effect, the 2019 Presidential Order, by extending the whole of the Constitution to Jammu and Kashmir, makes the substantive provisions of Article 370 inapplicable, which contravenes Article 370 (3) and is thus unconstitutional.
The Union Executive appears to be quite conscious of the problem Article 370 (3) presents, which could be taken care of by amending the constitution in accordance with Article 368, but instead of placing it in the hands of the Parliament, the Union Executive has taken a constitutionally questionable workaround of amending Article 367, which is an interpretative provision meant to guide the interpretation of the Constitution, to add an elaborate Clause (4) to Article 367 applicable exclusively to the State of Jammu and Kashmir by Clause (2) of the 2019 Presidential Order. The newly inserted Clause (4) of Article 367 stipulates that the expression “Constituent Assembly of the State” in the proviso to Article 370 (3) shall be read as “Legislative Assembly of the State.” Parliament could simply amend the proviso to the same effect, and it is doubtful that even Article 367 can be amended by way of a Presidential Order. It is a settled principle of law that what cannot be done directly cannot be done indirectly. Therefore, workarounds to do what is legally impermissible are impermissible and thus illegal.
Furthermore, a Presidential Order issued under Article 370 (1) cannot have the effect of amending another part of the same provision — Article 370 (3) in this case — because Article 370 (1) enables the President to extend the provisions of the Indian Constitution subject to the conditions and limitations prescribed under Article 370 itself.
Therefore, the power under Article 370 (1) cannot be construed to authorize the Union Executive to erode and/or circumvent the provisions of Article 370 itself because that would make Article 370 a self-obliterating provision, and no provision of law — constitutional or otherwise — can be misread to that effect, which means that insofar as the 2019 Presidential Order issued under Article 370 (1) seeks to have the “Constituent Assembly of the State” read as “Legislative Assembly of the State” under Article 370 (3), it exceeds the power conferred upon the President under Article 370 (1) and is thus ultra vires the provision it invokes.
The discussion hereinabove makes is quite clear that the 2019 Presidential Order and the reorganization of Jammu and Kashmir is inconsistent with and in contravention of the scheme, language and spirit of Article 370, and is, thus, constitutionally unsound. The 1954 Presidential Order with all the changes made to it from time to time through other Presidential Orders is on a different footing simply because it does not seek to extend the whole of the Constitution to Jammu and Kashmir, and by not doing so remains within the ambit of Article 370 (1).
Originally published in Lawyers Update [September 2019, Vol XXV, Part 9].
23 Sep 2019
17 Dec 2018