Article 370 : Why Petitioners Seek Reference To Larger Bench On Challenge Against Repeal Of J&K Special Status?

On Monday, a 5-judge Constitution Bench of the Supreme Court comprising of Justices NV Ramana, SK Kaul, Subhash Reddy, BR Gavai and Surya Kant will pronounce the judgment on the preliminary issue of whether the petitions challenging the Presidential Orders issued under Article 370 to repeal the special status of Jammu and Kashmir should be referred to a larger Bench.

The reference to a larger Bench is being sought on the argument that there exists a direct conflict between two judgments delivered by 5-judge Benches in the cases of Prem Nath Kaul v. State of Jammu and Kashmir [1959 AIR 749] and Sampat Prakash v. State of Jammu and Kashmir [1970 AIR 1118].

In this articles, both these judgments will be first discussed, followed by a discussion on the conflict pointed out by the petitioners between these two judgments.

PREM NATH KAUL v. STATE OF JAMMU AND KASHMIR

The case is rooted in the challenge to the promulgation of Jammu and Kashmir Big Landed Estate Abolition Act by Yuvaraj Karan Singh. The issue arose when it was contended that, inter alia, the Yuvaraj did not have any authority to promulgate the Act as he had issued a proclamation on November 25, 1949 by which he sought to make applicable to his State the Constitution of India. As a result of this application, Article 370 came into use and the Yuvraj became a constitutional monarch without any legislative powers. The Act was subsequently held valid.

Some of the arguments which were advanced to challenge the authority of the Yuvaraj are as follows:

1. When Maharaja Hari Singh conveyed his powers to Yuvaraj Karan Singh by his proclamation of June 20, 1949, he himself was no more than a constitutional monarch and therefore, could not convey higher powers.

This argument was rejected by the Bench as "prior to the passing of the Independence Act, 1947, the sovereignty of Maharaja Hari Singh over the State of Jammu and Kashmir was subject to such limitations as were constitutionally imposed on it by the paramountcy of the British Crown and by the treaties and agreements entered into between the Rulers of the State and the British Government. It cannot be disputed that so far as the internal administration and governance of the State were concerned, Maharaja Hari Singh, like his predecessors, was an absolute monarch; and that all the powers legislative, executive and judicial in relation to his State and its governance inherently invested in him."

The Bench therefore stated that as per Section 3 of Regulation 1 of 1991 (1934) [this was promulgated to increase association of Maharaja's subjects in the matter of legislation and administration of the State], the Maharaja retained all of his pre-existing legislative, executive and judicial powers. The rest of the provisions of the Regulation were subject to the overriding powers preserved by the Maharaja.

2. Passing of the Independence Act, 1947 delimited the powers and the sovereignty of the Maharaja

This argument was yet again rejected as "Whilst this was the true constitutional position the Independence Act, 1947, was passed by the British Parliament; and with the lapse of the British paramountcy, the Rulers of Indian States were released from the limitation imposed on their sovereignty by the said paramountcy of the British Crown and by the treaties in force between the British Government and States; this was, however, subject to the proviso prescribed by Section 7 of the Independence Act under which effect had to be given to the provisions of the agreements specified in the proviso, until they were denounced by the Rulers of the States or were superseded by subsequent agreements."

This invariably meant that, despite the existence of the Independence Act, 1947, the Maharaja continued to be an absolute monarch of the State, and in the eyes of international law, he claimed the status of a sovereign and independent State.

3. Sovereignty of the Maharaja was affected by the provisions of the Instrument of Accession which was signed by him on October 25, 1947.

This argument was found to be untenable. The Bench asserted that despite the existence of Clause 1 of the IOA, which conceded certain functions to authorities as may be vested in them by or under the Government of India Act, 1935, this was made subject to other terms of the IOA. On that note, Clause 6 of the IOA clearly and expressly recognized the continuance of the sovereignty of the Maharaja over his State.

4. Proclamation of March 5, 1948 of the Maharaja which instituted a popular interim government headed by Sheikh Mohammad Abdullah translated into the Maharaja surrendering his sovereign rights and becoming a constitutional monarch.

This argument was also rejected on the grounds that the constitution of a popular interim government was done to deal with the issue of tribal raids and was not done in the true constitutional sense of expression.

"The Cabinet had still to function under the Constitution Act of 1996 (1939) and whatever policies it pursued, it had to act under the overriding powers of His Highness."

5. Powers of Yuvaraj Karan Singh were substantially limited by the Proclamation issued by him on November 25, 1949.

The Proclamation issued on November 25, 1949 purported to make the Constitution of India applicable to the State of Jammu and Kashmir "in so far as was applicable". This argument was rejected as "the Proclamation did not carry the constitutional position any further than where it stood after and as a result of the execution of the Instrument of Accession by Maharaja Hari Singh. It is thus clear that the Proclamation did not affect Yuvaraj Karan Singh's authority and powers as the Ruler of the State which had been conferred on him by the Proclamation of his father issue in that behalf."

6. By virtue of application of Article 370 of the Constitution to the State, the Yuvuaraj ceased to hold the plenary legislative powers.

In order to appreciate the depth of this argument, the Bench examined the provisions of Article 370 and its effect in detail; this Article was intended to make temporary provisions with respect to the State of Jammu and Kashmir. On a bare reading of the Article, it was deduced by the Court that there was great reliance placed on decisions of the Constituent Assembly of the State by the Constitution makers. The clauses of Article 370 showed "that the Constitution makers attached great importance to the final decision of the Constituent Assembly, and the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provisions of Art. 370(1) is made conditional on the final approval by the said Constituent Assembly in the said matters."

Additionally, by virtue of Clause 3 of Article 370, the President was authorized to declare by public notification whether the Article should cease to be operative, or shall be operative only with specified exceptions or modifications. However, this power of the President was contingent on the recommendation of the Constituent Assembly of the State.

The Appellant, in the instant case, with the aid of the aforementioned argument, wished to portray to the Court that "the person who would be recognized by the President as the Maharaja of Jammu and Kashmir was treated as no more than a constitutional Ruler of the State. In regard to matters covered by this Article, he could not function or decide by himself and in his own discretion. The consultation contemplated by this Article had to be with the Maharaja acting on the advice of the Council of Ministers and the concurrence prescribed by it had to be similarly obtained and given, and that brings out the limitations on the powers of the Maharaja."

In rejecting this argument, the Court considered the question of whether the provisions of Article 370 affected the plenary powers of the Maharaja in the matter of the governance of the State. The Court held that the application had to be construed in light of the constitutional relationship between the State and India. Additionally, the Constitution makers did not have the authority to impinge upon the plenary legislative powers of the Maharaja.

SAMPAT PRAKASH v. STATE OF JAMMU AND KASHMIR

This case stems from the challenge to the Jammu and Kashmir Preventive Detention Act, 1964. It was asserted that Section 13 of the impugned Act was ultra vires the Constitution of India as it was contravening the provisions of Article 22. The challenge was set aside and it was ultimately held that Article 370 was not a temporary provision.

The arguments placed before the Court were as follows:

1. Article 370 is a temporary provision which ceased to be effective after the Constituent Assembly of the State had completed the framing of the Constitution of the State.

The Appellant asserted that the validity of the preventive detention laws was questionable as the extension of the same had been made applicable by the President who had exercised powers under Article 370(1). However, due to the temporary nature of the said Article, the very foundation of the Act was in jeopardy.

"Reliance was placed on the historical background in which this Art. 370 was included in the Constitution to urge that the powers under this article were intended to be conferred only for the limited period until the Constitution of the State was framed, and the President could not resort to them after the Constituent Assembly had completed its work framing the Constitution of the State."

The Court rejected this argument on the basis that the incorporation of Article 370 was done in the view of the political situation which existed in the State. However, this situation had not materially altered in either 1959 or 1964 and therefore, the purpose of introducing the Article remain unchanged. Additionally, Clause 3 of Article 370 authorized the President to cease the operation of the Article only on the recommendation of the Constituent Assembly. As no such recommendation had been made, the Article continued to remain operative.

2. Article 370(2) calls for the exercise of the power of the President before the dissolution of the Constituent Assembly of the State so as to allow for concurrence to be placed.

The Appellant asserted that "the provisions of clause (2) of Art. 370 support this view, because it directs that, if the concurrence of the Government of the State is given under para (ii) of sub-clause (b) of clause ( 1 ) or under the second proviso to sub-clause (d) of that clause before the. Constituent Assembly for ,the purpose of flaming the Constitution of the State is convened, that concurrence has to be placed before such Assembly for such decision as it may take thereon. From this, it was sought to be inferred that the power of the President, depending on the concurrence of the Government of the State, must be exercised before the dissolution of the Constituent Assembly of the State, so that the concurrence could be placed for its decision, and that. power must be held to cease to exist after the dissolution of the Constituent Assembly when that course became impossible."

This argument was rejected as the language of the clause did not support the assertion as it only refers to concurrence given by the Government of the State before the Constituent Assembly was convened and does not mention the completion of the work of the Assembly or its dissolution.

3. Article 370(1)(d) confers power on the President for the purpose of applying the provisions of the Constitution to Jammu and Kashmir and not for the purpose of making amendments in the Constitution as applied to the State.

The Appellants contended that amendments could not be made by the President with regard to the provisions of the Constitution that were applied to the State of Jammu and Kashmir. It was further stated that Section 21 of the General Clauses Act could not be utilized to interpret the President's power under Article 370 as a Constitutional power could not be equated with a power conferred by an Act, rule, bye-law etc.

This argument was rejected as a clear interpretation of Article 370(1)(d) states that not only is the President authorised to specify the provisions of the Constitution that would be made applicable to the State of Jammu and Kashmir, but he is also empowered to specify the exceptions and modifications to those provisions, provided that is done with the consultation with the Government of the State.

Additionally, Article 367 of the Constitution allows for the application of Section 21 of General Clauses Act, 1897 for the interpretation of the Constitution. Not applying the same would lead to anomalies due to the subsequent inflexible nature of the provisions. The power to amend the rules from time to time is necessary in order to suit changing situations. The legislative history of Article 370 would also support this view.

4. Due to the applicability of Article 368 to Jammu and Kashmir with a proviso added to it, there is no need for the existence of Article 370.

This argument was rejected as "Art. 368 has been applied to Jammu & Kashmir primarily with the object that amendments made by the Parliament in the Constitution of India as applicable in the whole of the country should also take effect in the State of Jammu & Kashmir. The proviso, when applying this article, serves the purpose that those amendments made should be made applicable to the State of Jammu & Kashmir only with the concurrence of the State Government and, after such concurrence is available, these amendments should take effect when an order is made under Art. 370 of the Constitution. Thus, Art. 368 is not primarily intended for amending the Constitution as applicable in Jammu & Kashmir, but is for the purpose of carrying the amendments made in the Constitution for the rest of India into the Constitution as applied in the State of Jammu & Kashmir. Even, in this process, the powers of the President under Art. 370 have to be exercised and, consequently, it cannot be held that the applicability of this article would necessarily curtail the power of the President under Art. 370."

5. Power to make modifications and exceptions under Article 370(1)(d) should be limited to minor alterations.

This argument was rejected on the basis of the judgment in P.L. Lakhanpal v. The State of Jammu and Kashmir wherein the scope of the powers of making exceptions and modifications had been examined.

6. Modifications made in Article 35(c) had the effect of abridging the fundamental rights of the citizens under Article 22 and other Articles under Part III of the Constitution.

This argument was also rejected on the ground that under Article 35(c), immunity was granted to the preventive laws made by the State Legislature, though the life of the inconsistent provisions was limited to a period of 5 years.

WHAT ACCORDING TO PETITIONERS IS THE CONFLICT BETWEEN THE TWO CASES

1. Temporary nature of Article 370

While the case of Prem Nath Kaul acknowledges the import of Article 370, it continues to recognize the temporary nature of the same. This can be exemplified by the emphasis on Clause 3 of Article 370 which allows the President to cease the operation of the Article. However, it is conditional as the recommendation of the Constituent Assembly is required for the exercise of this power by the President.

Per contra, the case of Sampat Prakash, recognizes the socio-political and legislative history of the Article. It also places reliance on Clause 3, but on the grounds that as no recommendation had been made on behalf of the Constituent Assembly of the State and no Order had been made by the President declaring that the Article shall cease to be operative, it reflects the intent of wanting the Article to continue its operation.

"On the contrary, it appears that the Constituent Assembly of the State made a recommendation that the Article should be operative with one modification to be incorporated in the Explanation to Clause 1 of the Article…This makes it very clear that the Constituent Assembly did not desire that this article should cease to be operative and, in fact, expressed its agreement to the continued operation of this article by making a recommendation that it should be operative with this modification only."

Additionally, Article 368, read with Article 370(1), authorizes the President to make amendments from time to time. "In view of these provisions, it must be held that Art. 370 of the Constitution has never ceased to be operative and there can be no challenge on this ground to the validity of the Orders passed by the President in exercise of the powers conferred by this Article."

2. Will of the people

It was argued by Senior Advocate Dinesh Dwivedi  in the present challenge against abrogation of special status of J&K that the Constituent Assembly Debates stipulated the objective behind the drafting of Article 370. The reason it was drafted was to restrict the powers of the Union and to ensure that the people of Jammu and Kashmir had a say in the administration of the State under the authority of the Constituent Assembly of the State.

The conflict which arose is that while the judgement of Prem Nath Kaul acknowledged the superiority of the people of the State by providing express plenary legislative powers to the Maharaja of the State over the Constituent Assembly of India, the judgment of Sampat Prakash diverged from the same regarding the final determining authority on what provisions should be extended to the State of Jammu and Kashmir.