J&K Case | Supreme Court Explains 'Heart Of The Matter' : Could Union Have Amended Article 370 Through Article 367 Route? [Day 12]

The twelfth day of the Constitution bench proceedings concerning the abrogation of Article 370 saw plenty of interesting queries being raised by the bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. In the proceedings, the bench also made oral remarks pertaining to what it referred to as the "heart of the matter", that is, could the Union Government have utilised Article 367 to amend Article 370 in order to repeal the special status of Jammu and Kashmir.

Can Union Government Utilise Article 367 To Amend Article 370?

For context, Article 370(3) prescribes that the President can issue an order to declare Article 370 inoperative. The proviso to Article 370(3) states that the recommendation of the J&K Constituent Assembly is necessary for the President to issue such an order rendering Article 370 void. However, the State's Constituent Assembly was dissolved in 1957. Thus, the Union wanted to amend Article 370(3) to remove the obstacle of requiring the J&K Constituent Assembly's concurrence for the abrogation. In order to do so, the Union took the Article 367 route. Article 367 is a provision related to interpretation clauses within the Constitution. In this case, the Constitutional Order 272 issued by the President on August 5, 2019 amended the definition clauses in Article 367 to hold that "Constituent Assembly of J&K" would mean the "Legislative Assembly of J&K" and "Government of J&K" would be construed as "Governor of J&K".  This Presidential Order was issued invoking the power under Article 370(1)(d) which empowers the President to apply the Indian Constitution to J&K with "exceptions and modifications" as specified.

The petitioners in their arguments had submitted that if this course of action was allowed, then it would mean that the Executive can change the meanings of words with a simple amendment to Article 367, instead of following the process under Article 368, which prescribe that ratification by majority of state assemblies are required for amending certain core provisions of the Constitution. Thus, under the guise of amending the definition clauses, substantive amendments could be carried out.

In this context, the CJI asked the Solicitor General (SG) Tushar Mehta, who was appearing for the Union if the abrogation of Article 370 could stand independent of the modification made to Article 367. He further inquired if Article 370 could be altered by a process other than the one prescribed under Article 370(3) through the Article 367 route. Justice Khanna added–

"The question is that by amending Article 367, aren't you in fact amending Article 370 without taking recourse to Article 370(3)? Because Article 370 can only be amended in terms of Article 370(3)."

The SG responded to this by stating that if Article 367 was not modified, it would have the effect on Article 370 becoming a permanent feature of the Indian Constitution, as sans the Constituent Assembly, Article 370 could never be modified. It may be recalled that Senior Advocate Kapil Sibal, appearing for the petitioners, had also raised a similar argument and had stated that Article 370 had presumed permanence as the Constituent Assembly of J&K had dissolved without recommending its abrogation. 

CJI Chandrachud remarked–

"The argument of the other side is that you can then take recourse to sub-clause (d) of clause (1) in a situation where you have to amend any other provision of the Constitution other than Article 370. 370(1)(d) refers to "other provisions of the Constitution". Other provisions according to you would include 367. Possible. But can you use 367 to bring about an amendment to 370? If you do that, are you not really doing that to amend 370 itself? This is the heart of the matter."

The query from the bench can be broken down for simpler understanding as follows. Since the Constitutional Order 272 changed the meaning of "Constituent Assembly" as "Legislative Assembly", this effectively resulted in an amendment to Article 370(3), because it now means that Article 370 can be abrogated with a recommendation of the Legislative Assembly. So, the query of the bench was that if Article 367 could be used to make such a substantive change.

The SG reiterated that in the absence of a Constituent assembly, Article 370(3) could never come into effect and Article 370 would get the status of a permanent provision and therefore, through the Article 367 mechanism, Article 370 has been modified.

To this, the CJI remarked–

"That's the point with the caveat that the use of Article 367 mechanism to modify mechanism was always with the concurrence (of the J&K Government)."

To this, the SG stated that the present exercise of modifying Article 367 was also carried out with concurrence and the only difference was that the concurrence in the present case was of the J&K Governor as the council of ministers did not exist at the time and the governor had to step into the shoes of the government.

Justice Khanna remarked–

"So by amending Article 367, you are not amending Article 370 as such as procedure under Article 370 has to be followed to abrogate...Suppose Article 367 was amended in terms of Article 370(1)(d) with the concurrence of the state government, the other side may not have been here."

SG Mehta said-

"The Constituent Assembly having chosen not to dissolve, left it to the discretion of the president. It could have been done. It would have been defendable. But with a view to ensure that there is democratisation of the action, this was done."

Constitution Makers Wanted Article 370 To Be A Temporary Provision

SG Mehta argued that it was "very clear" that the Constitution makers foresaw Article 370 as a 'temporary' provision and wanted it "to die". He provided various reasons to support his assertion–

1. The provision is contained in Part XXI of the Constitution which include "temporary, special, and transitory provisions". The words used by the Constitution makers suggests that the provision was always meant to be temporary. 

2. The provision provided wide powers to the President and the state government which allowed them to alter any part of the Indian Constitution and apply it to one region, delete any constitutional provision or create a new constitutional provision. Considering the legislative expanse of the article, the constitution makers could not have wanted for it to remain in function permanently.

3. The impact of Article 370 was to deprive the residents of J&K and Ladakh from being treated at par with their fellow citizens. This is also a suggestive indicator that framers didn't intend for it to be permanent.

4. Article 370 is the only provision in the Indian Constitution where application of Constitution and the application of central laws including beneficial legislations are dependent on the concurrence of the State government. Such a "drastic provision" could not have been envisioned to be perennial.

5. Article 370 is the only provision that has a self destructive clause. This shows it was intended to be temporary. Here, the SG added– "If the proviso becomes otiose, the main condition doesn't become otiose. The conditionality goes."

Constitution Of J&K Subordinate To Indian Constitution 

The SG submitted that the J&K Constitution was subservient and subordinate to the Indian Constitution. He stated that the same was because the J&K Constitution never had original constituent powers. He stated that Constitutions across the globe had certain attributes which were missing in the J&K Constitution. In this context, he stated that while Constitutions were meant to be documents of governance providing for everything, the J&K Constitution only covered certain aspects and left everything else to the Constitution of India. He added that for being recognised as a Constitution, the document must provide for sovereignty, which would include the right to acquire new areas and cede new territories. While Indian Constitution consisted the same under Articles 1,2,3, and 4, the same was missing in the J&K constitution.

"It was a piece of legislature recognised till 5 August 2019," said the SG.

The CJI, seemingly agreeing with this argument, stated that another reason why this argument may be correct was because of Section 5 of the J&K constitution which stated that the executive and the legislative powers of the State extended to all matters except those in respect of which parliament of India had a power to make laws under the Indian Constitution. The CJI remarked–

"So once the Constitution of India defines areas in which parliament has power to make laws, then that is denuded from the jurisdiction of the J&K legislative assembly."

In this context, the CJI underlined how progressively the ambit of the legislative domain of parliament had been expanded in the past years. For instance, initially, the entire concurrent list was outside the power of parliament and the India Parliament only had powers over certain entries in the Union list. Subsequently, the concurrent list was also brought in within the purview of the parliament. The same was done with Entry 97. Thus, the CJI said–

"It's very obvious from Section 5 that once Constitution of India prescribes a legislative domain for parliament, that is denuded from legislative domain of the J&K legislative assembly. In that sense the J&K constitution was always meant to be subservient to India. It's not a document which can be equivalent."

J&K Reorganisation 'One-Of-A Kind' 

The next limb of the arguments of the SG focused on how the present case was a "one-of-a kind" case. He stated that –

"If Gujarat or MP was to be bifurcated, the parameters would be different. But when J&K, considering its strategic importance, border state, history of terrorism, history of infiltration, history of outside influence- there would be some considerations. We share borders with at least four countries, all of which may not be friendly to put it mildly."

Justice Kaul raised an objection to this line of argumentation and stated that India had many states sharing international borders. To distinguish J&K from other border states, the SG asserted–

"The history also- how situation in Kashmir is developing, the deaths of civilians, the deaths of security forces, the number of attacks, stone pelting, the hartals, paralysing schools, hospitals, banks, businesses- everything. All of these are policy considerations. Whenever a state reorganisation takes place, not only are their policy considerations as to why but also a blue print as to what the centre would do after the state is reorganised. How to bring youth in mainstream? How to employ, float schemes. There are several considerations. We will have to start with democratic local self governance so people participate in the internal institutions for their own good."

To this, CJI remarked that once the power of reorganisation was conceded to the Union in relation to every Indian state, how was one to ensure that the power would not be misused. The SG responded by reiterating that the J&K situation was one of a kind and it would not arise again. Justice Kaul, flagging his issue with the argument stated–

"It's not one of its kind situation. We have seen the northern border Punjab- very difficult times. Similarly, some states in North East...I understood your argument that these border states are their own category. But how do you distinguish between J&K with any other border states?"

The SG contended that J&K was a border state where one of India's territories was occupied by Pakistan. He added–

"I have given figures of deaths taking place every year. This is a problem faced by nation since decades which we are sorting out. There are several considerations - one of the considerations is how to bring youth in mainstream. What we see today is a result of blue print we have. After this decision, there were elections which took place of district development councils. There are 34000 elected people. Democracy is going to the grassroots. There are large number of schemes introduced. The youth which used to be employed by the interests not amenable to India- terror groups etc, are gainfully employed. There is a blue print and I'll show that blue print."

Also from yesterday's hearing - Article 370 | 'Restoration Of Democracy Important' : Supreme Court Asks Centre When Jammu & Kashmir's Statehood Will Be Restored [Day 12]

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