Re-writing Article 370 : The Legal Test Ahead

The President has, on the recommendation of Parliament,issued the "Declaration under Article 370(3) of the Constitution" in exercise of his powers under Article 370(3) read with Article 370(1) of the Constitution to declare that all clauses of Article 370 would cease to be operative from 6 August 2019, except the clause to the effect that "(a)ll provisions of this Constitution, as amended from time to time, without any modifications or exceptions" shall apply to Jammu and Kashmir (J&K), notwithstanding anything contrary contained in the Constitution or the J&K constitution or "any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 or otherwise".

Such Presidential Order is the culmination of dramatic steps taken by New Delhi in issuing the Constitution (Application to Jammu and Kashmir) Order, 2019 under Article 370(1) and the passage of the Jammu and Kashmir Reorganization Bill, 2019 in Parliament.

By this move, New Delhi has achieved three objectives: firstly, it has removed the preferential treatment accorded to J&K and applied the entire Constitution to J&K; secondly,it has bifurcated J&K into two Union Territories – J&K with a legislature and Ladakh without a legislature; thirdly, it has made the state legislative assembly (instead of its Constituent Assembly) the competent authority to make the recommendation to the President to declare Article 370 inoperative.

New Delhi has justified its move by arguing that Article 370 was the root of terrorism in J&K, had ruined the state, stalled its development, prevented proper health care and education and blocked industries; and it was therefore necessary to integrate the region with the rest of India and develop it. New Delhi has asserted that its move has popular support in Jammu, Ladakh and even in most parts of Kashmir.

The purpose of this article is not to examine the merits of New Delhi's Kashmir policy. Such policy, however, is not surprising as the political discourse in India identifies the Kashmir issue with Article 370 and holds it just as responsible for the turmoil in J&K as the generous support of Pakistan for cross-border terrorism.

I have long maintained that the genesis of the Kashmir issue or its resolution is not located in Article 370 for reasons detailed in my book, Unravelling the Kashmir Knot (www.kashmirknot.com). The Kashmir issue is not only about the Valley (about 9 % of J&K) or cross-border terrorism but is far more complex and multi-layered. It also includes the legally misconceived stand taken in New Delhi in 1947 on the unconditional accession of J&K to India by viewing it as being "provisional";the formulation of the policy by New Delhi to introduce the "wishes of the people" as the factor to decide the accession of J&K – a policy which was ultra vires the constitutional law that created modern day India; the filing of the complaint in the UN by New Delhi accusing Pakistan of aggression against Indian territory but returning with a promise to hold an UN supervised plebiscite to determine whether such territory was even Indian territory; the taking of the Kashmir issue out of the domestic jurisdiction of India by New Delhi; the internationalization of the Kashmir issue by New Delhi to give standing on every member of the UN to comment on the happenings in J&K; the conferral of the "disputed territory" tag on J&K by New Delhi; the formulation by New Delhi of the legally untenable policy of territorial status quo; the disowning of the occupied territories of J&K and of the Indian citizens residing there under Pakistan and Chinese rule for decades; the failure to act on the 1994 Parliamentary resolution to have Pakistan vacate the occupied territories of J&K; the formal protests by New Delhi at the ostensible annexation of the Gilgit-Baltistan region by Pakistan; the absence of pro-active steps to block China's expansionist plans as also the China-Pakistan Economic Corridor cheekily conceived through the occupied territories of J&K and so on so forth. The road to root out terrorism in J&K and bring peace to the region therefore does not run through Article 370, and certainly not by focusing only on the part of J&K with India.

New Delhi's move on Article 370 has already been challenged in the Supreme Court.The question that is being debated is whether it will pass judicial scrutiny. I am accordingly confining myself in this article to the constitutional issues that may arise for consideration.

At the outset, it may be noted that New Delhi has dealt with Article 370 with J&K being under President's rule. Article 356 of the Indian Constitution is an emergency provision that empowers the President to assume the functions of the state government and Parliament to exercise the powers of the state legislature in a situation in which the government of the state cannot be carried out in accordance with the Constitution.Article 356 is not meant to take far reaching decisions but is to be resorted to sparingly. The exercise of the power under Article 356 is limited by time as provided in Article 356 itself. It is a temporary arrangement only until the government of the state can be carried on in accordance with the Constitution.

Let us now consider each objective achieved by New Delhi – namely; the removal of the preferential treatment accorded to J&K and the application of all the provisions of the Constitution to J&K; the bifurcation of J&K into Union Territories; and the making of the state legislative assembly the competent authority to make the recommendation to the President to declare Article 370 inoperative.

Removal of preferential treatment and the application of the entire Constitution to J&K

J&K, a sovereign state as of 15 August 1947, acceded to India through the accession instrument of 26 October 1947 and became an integral part of India. Such accession by the Ruler, though unconditional, was only in matters of external affairs, communications and defence and certain ancillary matters. The accession instrument expressly declared that nothing therein would affect the continuance of the sovereignty of the Ruler in or over J&K. Unlike other princely states acceding to India, the sovereign Ruler of J&K did not merge the territory of the state into the Indian Union nor cede further subjects to India.

The 11-Judge Bench of the Supreme Court held in Madhav Rao (1971) that the accession instrument was an Act of State on the part of the sovereign ruler of a princely state and bound all concerned, and that relations between the princely state and India were strictly governed by the accession instrument.

Given that India was to be a democratic republic, the Constitution-makers contemplated a transfer of power from the Ruler of J&K to a duly elected state constituent assembly, and for this state constituent assembly to finally determine the constitutional relationship of J&K with the Indian Union, as emphasized by the Constitution Bench decision of the Supreme Court in Premnath Kaul (1959).

Meanwhile, the Constitution was made applicable to J&K through Article 370, which inter alia provided in Article 370(1) that the President could apply other provisions of the Constitution to J&K relating to matters specified in the accession instrument in "consultation" with the J&K government, while such application in respect of other matters required the "concurrence" of the J&K government. Similarly, Parliament could make laws for J&K in respect of matters specified in the accession instrument in "consultation" with the J&K government, and other matters with the "concurrence" of the J&K government.

The state Constituent Assembly, set up in 1951, regarded the constitutional relationship of J&K with India as one of an autonomous republic within the Indian Union. This relationship was later crystallized in the Delhi Agreement, 1952, which was duly ratified by Parliament and the state Constituent Assembly, and which inter alia permitted the state legislature to make laws conferring special rights and privileges upon the state subjects. The President, with the concurrence of the J&K government, issued the Constitution (Application to Jammu and Kashmir) Order, 1954, under Article 370(1) which inserted provisions like Article 35A into the Constitution to give effect to the Delhi Agreement and also applied further Articles of the Constitution to J&K.

Thereafter,successive regimes at New Delhi issued a series of executive Presidential Orders under Article 370(1) over the decades to apply almost the entire Constitution to J&K, and that too, often with modifications that would have been impermissible for other parts of the country. This ran counter to the very purpose of introducing Article 370 into the Constitution. Thus, ironically, J&K state did get a 'special status', though certainly not that of an autonomous republic within the Indian Union. Rather, it found itself at the other end of the spectrum, with mere executive directions by New Delhi deciding its fate.

And now, the President,apparently with the "concurrence" of his own nominee, the J&K Governor, who has been equated with the J&K government, issued the said 2019 Order superseding the 1954 Order that had given effect to the preferential status of J&K, followed by the application of the entire Constitution to J&K. This is vitiated by the same infirmities that made the erosion of Article 370 over the decades unconstitutional.

Bifurcation of J&K into Union Territories

It is true that the Constitution does not guarantee the territorial integrity of the constituent states of the Indian Union. Article 3 of the Constitution provides that Parliament may by law form a new State and alter the areas, boundaries or names of any State. The proviso to Article 3, however, provides that no Bill for such purpose will be introduced in Parliament unless the Bill has been referred by the President to the state legislature for expressing its views thereon when the proposal contained in the Bill affects the area, boundaries or name of that state.

The only exception so far was J&K. Article 370 applied Article 1 to J&K thereby recognizing it as a constituent State within the Indian Union. The 1954 Order applied Article 3 to J&K with an additional proviso that mandated that 'no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.' In other words, not only did J&K not merge its territory into the Indian Union but it explicitly preserved its territorial integrity as also identity.

Assuming the 2019 Order (which supersedes the 1954 Order and applies the entire Constitution to J&K) to be valid, Parliament may by law alter the areas, boundaries and name of J&K without the consent of the state legislature. However, it was still a requirement of the proviso to Article 3 for the 2019 Reorganization Bill to have been referred to the state legislature for expressing its views thereon.

But then, with J&K being under President's rule, there was no state legislature that could have expressed its views on the 2019 Reorganization Bill. In light of the scope of emergency provision of Article 356 discussed above, surely Parliament should not have exercised the power of the state legislature in matters that dismember the state itself as also its identity. More-so, in view of the principle of federalism enshrined in the Constitution.

While the Constitution is not strictly federal in nature, it is also not strictly unitary in nature – it is often described as quasi-federal. In fact, the state in relation to which the Constitution was closest to being federal was J&K, due to the historical reasons. The 13-Judge Bench decision in KeshavanandaBharati (1973) has gone to the extent of viewing the federal character of the Constitution as part of its basic structure. Parliament, by exercising the power of the state legislature to bifurcate J&K into Union territories, has plainly violated the federal structure of the Constitution.

State legislative assembly to recommend to President to declare Article 370 inoperative

The proviso to Article 370(3) mandated a recommendation from the state Constituent Assembly (which was to be convened for the purpose of framing the state constitution)to the President to declare Article 370 inoperative before he could do so. Since the state Constituent Assembly dispersed after framing the state Constitution in 1957, without making any such recommendation, it follows that the competence of any organ of the Indian State to declare Article 370 inoperative no longer existed.

Now, the 2019 Order adds to Article 367 of the Constitution (an Interpretation clause) a provision to the effect that the state Constituent Assembly referred to in the proviso to Article 370(3) shall be read as the state legislative assembly. Simply put, New Delhi has soughtto exercise the power under Article 370(1) to nullify or circumvent the protection given to J&K by Article 370(3). That runs counter to the elementary proposition of law that a constitutional provision cannot be used to defeat another constitutional provision or to render it nugatory.

Further, recourse is usually taken to an interpretation clause where there is ambiguity,thus requiring the aid of interpretation. There is no ambiguity in Article 370,which expressly states that it is the state Constituent Assembly (convened to frame the state constitution)which would be the competent authority to make a recommendation to the President to declare Article 370 inoperative. There is, accordingly, no warrant to use Article 370(1) to substitute the reference to the state Constituent Assembly in Article 370(3) with the state legislative assembly. Clearly, the intent was to denude the protection guaranteed by Article 370(3). To allow New Delhi to do so would amount to it indirectly amending Article 370(3) – which in turn would violate Article 370(1) (c) and (d) that mandate that the provisions of Article 370 shall apply to J&K and that it is only other provisions of the Constitution that may be modified in their application to J&K.

The effect of the 2019 Order with J&K under President's rule is that the power to make the requisite recommendation has been taken away from the state Constituent Assembly and vested in the state legislative assembly only to have been eventually exercised by Parliament. And so, New Delhi (Government of India) needed a 'yes' only from New Delhi (Parliament) to declare Article 370 inoperative! Surely that cannot be the position in law.

The crux of New Delhi's three objectives has been to let New Delhi define the constitutional relationship of J&K with the Indian Union; instead of J&K deciding such relationship. This action is therefore inconsistent with the binding terms of the accession instrument, the constitutional mandate of Article 370, the Delhi Agreement as also the view taken by the Supreme Court, notably in PremnathKaul(1959). New Delhi would therefore need to address these issues as and when the legal challenge to its move is taken up. But then, the constitutional and statutory formalities are already in place,while the determination of the legal challenge is bound to take time. New Delhi has presented the country with a fait accompli. 

Dr. Aman Hingorani is an Advocate at Supreme Court of India and Author of Unravelling the Kashmir Knot (www.kashmirknot.com)

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