Article 370 Judgment | Constitution Amendments Through Circuitous Manner Not Permissible; Article 368 Procedure Must Be Followed : Supreme Court

In the Article 370 case, the Supreme Court categorically held that amendments to substantive provisions of the Constitution cannot be made by executive notifications. The amendments to Constitutional provisions have to be carried out by following the procedure prescribed under Article 368, that is by passing an amendment bill in the Parliament with the backing of the prescribed majority, clarified the Court.

Holding so, the Constitution Bench invalidated a portion of the notification issued by the President (Constitution Order 272), to the extent it added a clause to Article 367 specifying that the references to the "Constituent Assembly of Jammu and Kashmir" should be read as the "Legislative Assembly of Jammu and Kashmir" and the "Government of J&K" can be construed as the "Governor of J&K". These changes enabled the President to issue the next Constitution Order, CO 273, to declare Article 370 inoperative without obtaining the recommendation of the J&K Constituent Assembly (which was dissolved in 1957) as stipulated in the proviso to Article 370(3).

Article 367 contains interpretation clauses, giving definitions for certain terms used in the Constitution.

The Court disapproved of the changes made to Article 367 through a Presidential notification (CO 272). The Court held that the changes made to Article 367 had a substantive effect on Article 370, as the recommending body for abrogation of Article 370 was changed from J&K Constituent Assembly to J&K Legislative Assembly. Hence, the changes to Article 367 amounted to an amendment to Article 370.

Refusing to endorse this backdoor method of amendment, the CJI DY Chandrachud wrote in the judgment :

"While the 'interpretation' clause can be used to define or give meaning to particular terms, it cannot be deployed to amend a provision by bypassing the specific procedure laid down for its amendment. This would defeat the purpose of having a procedure for making an amendment" (Para 389)

The judgment warned that the consequence of permitting amendments through the circuitous manner "would be disastrous."

"Many provisions of the Constitution would be susceptible to amendments which evade the procedure stipulated by Article 368 or other provisions...Hence, amendments cannot be carried out by bypassing a procedure which has been laid down for that purpose," the judgment stated(Para 390).

The judgment illustrated the danger with an example :

"For instance, Articles 243D, 243T, 330 and 332 provide for the reservation of seats for Scheduled Castes in Panchayats, Municipalities, the Lok Sabha and the Legislative Assemblies of States respectively. Each of these provisions uses the word “shall” while prescribing reservation. This is indicative of the mandatory nature of the provision. Article 341 stipulates that the President may specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall be deemed to be Scheduled Castes for the purposes of the Constitution. Theoretically, can a public notification which deletes all castes, races or tribes or parts of or groups within them from the list of Scheduled Castes be contemplated? The consequence would be that no caste, race or tribe would be considered a Scheduled Caste for the purposes of the Constitution and the mandate of Articles 243D, 243T, 330 and 332 would be obviated without following the procedure prescribed by Article 368"

Despite invalidating the changes made to Article 367 through CO 272, the Court upheld the repeal of J&K's special status, as it held that the President did not require the recommendation of the J&K Constituent Assembly to issue a declaration that Article 370 was inoperative. Thus, CO 273 was upheld. For detailed reading, refer here.

Other reports on the judgment can be read here.

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