Article 370 and the Removal of J&K’s Special Status: Analysing the Constitutional Validity – By Pawan Reley & Devesh Saxena

June 22, 2021

Recently the debate over the amendment in Article 370 started again when, as per the Hindustan Times report dated June 13, 2021, one Senior Congress leader was allegedly heard saying in a leaked audio chat that Congress “would certainly have to relook” the decision of revoking Article 370. This has created a havoc among all the political parties across the country. The division of opinion among the people for the amendment in Article 370 started again. Thus, at this juncture, it becomes apt and apposite to analyse the constitutional validity of the amendment and modification made in Article 370 of the Constitution of India.

The President of India, in exercise of his powers conferred by clause (1) of Article 370 of the Constitution of India, passed a Constitution (Application to J&K) Order, 2019 superseding the earlier Constitution (Application to J&K) Order, 1954 as amended from time to time. It is to be noted that this instant order of 2019 has extended all the provisions of the Constitution of India to the State of J&K. However, certain exceptions and modifications were created subject to which all the provisions of the Constitution of India will be applicable to the State of J&K. The exceptions and modifications were created under Article 367 while adding clause (4) in the same, which has changed the meaning of “Constituent Assembly of State” to “Legislative Assembly of the State” under the Proviso clause of Article 370 (3). This said change in the Proviso clause of Article 370 (3) through the indirect amendment i.e by way of addition (Modification) in Article 367 has aroused the controversy giving rise to many substantial questions of law. Some of them can eminently be emanated as:

I. Whether the President has any power under Article 370(1)(d) to amend Article 367 and apply the same to the State of J&K or is it mandatory to take recourse to Article 368 for the same?

II. Whether changing the meaning of “Constituent Assembly of State” to “Legislative Assembly of the State” under the Proviso clause of Article 370 (3) affects the “Federal Structure” of the Constitution?

III. Whether the President under Article 370 (1)(d), while amending the other provisions of the Constitution and applying the same to the State of J&K, can bring any change to Article 370 of the Constitution itself? 

The answer to the said questions will be given by turn. However, in order to do the same, a retrospect of the development of the Constitutional relationship of the State of J&K with India becomes necessary.

In J&K, the Hindu Maharaja, Sri Harish Singh, addressed a letter dated October 26, 1947 to the Governor-General where he offered to accede to the Dominion of India. The Governor General accepted the offer on October 27, 1947 with certain stipulations. On March 5, 1948, the Maharaja issued a proclamation forming a responsible government of Counsel of Ministers headed by Prime Minister which was to take steps to constitute a National Assembly based on adult franchise to frame a constitution for the State. 

On November 25, 1949, Yuvraj Karan Singh, to whom the power was entrusted by the Maharaja, issued a proclamation directing that the Constitution of India be adopted by the Constituent Assembly of the State in so far as it is applicable to the State and Union of India. The Constitution of India was adopted on November 26, 1949 and on the same day some provision came into force and the remaining provisions came into force on January 26, 1950. On the same date, the Constitution (Application to J&K) Order, 1950 was made by the President.

 On April 20, 1951, the Maharaja issued a Proclamation in pursuance of which the Constituent Assembly of the State was convened on November 5, 1951. On May 14, 1954, in exercise of power conferred under Article 370 (1), the President, with the concurrence of the Government of J&K, made the Constitution (Application to J&K) order 1954 which superseded the earlier order of 1950 and extended the application of various provisions of the Constitution to the State. One such provision was Article 368, but Part XX of the 1954 order added a proviso to the effect that no such amendment shall have effect in relation to the State of J&K unless applied by the order of the President under Cl. (1) of Article 370. On November 17, 1956, the J&K Constitution was adopted. Some of the portions of the Constitution came into force on that day and the remaining section came into force on January 1, 1957.

The State of J&K forms part of the “territory of India” as defined in Article 1 of the Constitution, being the 15^th State included in the First Schedule of the Constitution, as it stands amended. It is to be noted that Article 370 was included in the Constitution as special provision to take care of the exceptional state of affairs that existed in the State of J&K at the time of accession to the Union of India. Sri N. Gopalaswami, while introducing the draft clause Article 306A (present Article 370) in the Constituent Assembly, postulated certain condition projecting why Kashmir at that time required special treatment. The relevant extract of some of those conditions are as follows: 

i. There had been a war going within the limits of the State;

ii. A part of the State was still in the hands of rebels and enemies;

iii. Our country was entangled with the United Nations with regard to J&K and it was not possible to say when we would be free from their entanglement;

iv. The Government of India had committed themselves to the people of Kashmir in certain respects which commitment included an undertaking that an opportunity would be given to the people of State to decide themselves whether they would remain with the republic or wish to get out of it;

v. The will of the people expressed through the constituent assembly would determine the Constitution of the State as well as the sphere of the Union Jurisdiction over the State.

It was felt by the present government that there is a change in the circumstances and that the special status is no longer needed for Jammu & Kashmir. The President in exercise of the power conferred by Article 370(1) of the Constitution, executed Presidential Order C.O. 272 on August 05, 2019 that lay the foundation for the present legal hullabaloo as stated before. Therefore, the questions arising from the aforementioned situation will be dealt in turn.

I. Whether The President Has Any Power Under Article 370(1)(d) To Amend Article 367 And Apply The Same To The State Of J&K Or Is It Mandatory To Take Recourse To Article 368 For The Same?

Article 370(l) of the Constitution came into operation for the recognition of the special position of the State of Jammu and Kashmir. Therefore, the power was conferred upon the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. This understanding can be gathered from a bare perusal of Article 370 (1) (d) of the Constitution, which reads as: 

“(d) 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”.

It is to be noted here that the power to “modify” under the said sub clause not only includes the “power to modify the existing provision” but also includes “the amendment or addition in any article of the Constitution and apply same to the State of J&K”. The Constitution bench of the Hon’ble Supreme Court in the case of Puranlal Lakhanpal vs The President of India and Others, 1961 AIR 1519, has settled the law while holding that the word “Modification” under Article 370 (1) (d) of the Constitution includes “Amendment in any provision of the Constitution in relation to State of J&K”. The Hon’ble Court observed to the following effect:

“4…As we have said already the object behind enacting Art. 370(l) was to recognise the special position of the State of Jammu and Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. If therefore the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir, it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If be could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word “modification” in Art. 370(l) the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and Kashmir…”

“…We are therefore of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word ‘modification” used in Art. 370(l) and in that sense it includes an amendment. There is no reason to limit the word ‘modifications’ as used in Art. 370(1) only to such modifications as do not make any ‘radical transformation’. We are therefore of opinion that the President had the power to make the modification which he did in Art. 81 of the Constitution. The petition therefore fails and is hereby dismissed with costs. Petition dismissed.”

It is to be noted that the President in exercise of the power conferred by Article 370(1)(d) of the Constitution passed a Presidential Order C.O. 272 thereby bringing an amendment to Article 367 of the Constitution of India which had already been adopted by the State of J&K by Section 158 of the Constitution of the State of J&K and applied the same to the State of J&K. 

In doing so, it is not a mandatory to take recourse to Article 368 of the Constitution of India. It is inevitable to note that Part XX of the 1954 order added a proviso after Article 368 to the effect that no such amendment shall have effect in relation to the State of J&K unless applied by the order of the President under Cl. (1) of Article 370. It means any amendment coming by way of Article 368 is not automatically applicable to the State of J&K until the President applies the same through his order passed by him under Article 370(1)(d) of the Constitution of India. Thus, in relation to the State of J&K, some specific power has been conferred on the President of India to amend any adopted Article of the Constitution and apply the same to State of J&K without taking recourse to Article 368. This position was made vivid and luminescent by the Hon’ble Supreme Court in the case of Sampat Prakash VS State of Jammu & Kashmir, AIR 1970 SC 1118 in the following words:

“13. The next point urged was that Art. 368 of the Constitution having been applied to Jammu & Kashmir with a proviso added to it, there now exists a provision relating to amendment of the Constitution as applied to Jammu & Kashmir under tiffs article and, consequently, while such special provision for this purpose exists, we should interpret Art. 370 as being no longer applicable for amending or modifying the provisions of the Constitution applied to that State. This argument, in our opinion, is based on a wrong premise. 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.”

II. Whether Changing The Meaning Of “Constituent Assembly Of State” To “Legislative Assembly Of The State” Under The Proviso Clause Of Article 370 (3) Affects The “Federal Structure” Of The Constitution?

The Proviso clause of Article 370 (3) of the Constitution reads as:

“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.”

It must be observed that the Constituent Assembly ceased to function in 1954 itself.  As a result, the C.O. 272 brought an amendment to Article 367 of the Constitution and added clause (4) in the same (It is to be noted that bringing an amendment under 367 is very much within the competence of the President), which has changed the meaning of “Constituent Assembly of State” to “Legislative Assembly of the State” under the Proviso clause of Article 370 (3). 

It must be noticed that the amendment is made to revive the power of the recommendation as mentioned in the Proviso clause. The change in the meaning from “Constituent Assembly of State” to “Legislative Assembly of State” does not transfer the power of making a recommendation into the hands of Central Government or the Parliament or to any other authority within the control of the Centre. The “recommendation making power” is still retained with the State of Jammu and Kashmir i.e. Legislative Assembly of the State. The change in the meaning does not usurp or transfer the power of making a recommendation from State to Centre rather retains the power of the “Constituent Assembly” with the “people’s representatives of Kashmir, i.e. Legislative Assembly of the State” thereby maintaining the Federal Structure of the Constitution. In the present case, Jammu and Kashmir has been under President’s Rule, which is justified under Article 356 of the Constitution for many months, and the consent taken is that of a Governor who remains functional in absence of a Legislative Assembly. 

Many eyebrows have been raised on the assumption that Governor is a representative of the Centre and hence the recommendation provided is capricious in nature. It is relevant mention that Governor is not under an employment of the Government of India and holds an independent office.  The Constitution bench of the Hon’ble Supreme Court in the case of Hargovind v. Raghukul Tilak (1979) 3 SCC 458, held which is as follows:

 “4…Governor is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carried out his functions and duties. The Governor is the head of the State and holds a high constitutional office which carries with it important constitutional functions and duties and he cannot, therefore, be regarded as an employee or servant of the Government of India.” 

Therefore, any assumption to consider the Governor to be the employee of the Centre and extending the doctrine of bias to the Governor will be untenable in the eyes of law. 

III. Whether The President Has The Power To ‘Modify’ Article 370(3) Of The Constitution Itself And Apply Same To The State Of J&K?

Article 370 (3) of the Constitution reads as:

 “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare 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.”

 A bare perusal of clause (3) of Article 370 would point out that the President does have the imperium ab initio (Power from the beginning) to cease the operation of Article 370. However, in doing so, he has to take into consideration of its Proviso clause which reads as: 

“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.” 

It must not be forgotten, that Article 370 is a unique Article and was included in the Constitution as special provision to take care of the exceptional state of affairs that existed in the State of J&K at the time of accession to the Union of India. The reason for special treatment to State of J&K has been already cited above. Further, the legislative history of the Article shows that it was envisaged that the President would have to take into account the situation existing in the State when applying a provision of the Constitution and that such situations arise from time to time.

 It is relevant to note that the Constituent Assembly of J&K ceased functioning in 1957. This has made the proviso of Article 370 (3) lifeless. It must be observed that the extra ordinary circumstances at the backdrop of the “modification” must not be disregarded. With the existence of special status by virtue of Article 370 of the Constitution, democracy was stalled, civil unrest, growing poverty, impediment for development and a growing rise of terrorism, unrest and violence in the State. Thus, the President utilized the power mentioned under Article 370 (1) to implement the civil, political and democratic rights to its fullest which was never fully implemented. 

However, the substantial question of law in relation to interpretation of the Constitution takes arise here that, once the proviso of a provision of the Constitution becomes impossible then whether the substantial provision itself become otiose?

This question has been posed here because the existence of the Constituent Assembly is impossible under the proviso of Article 370(3) of the Constitution then whether this will make the purpose of Article 370(3) futile? 

It is to be noted that if this reading is given to Article 370(3) then it will be against the intention of the framers of Article 370. The founding fathers never intended that the substantial provisions framed by them would be futile merely because of the non-existence of Constituent Assembly. It is not res-integra that the provisions of the Constitution have to be given purposive construction and the liberal interpretation. The only way to maintain the balance among the intention of the framers of Article 370, power of the President and federal structure of the Constitution is to read the provisions of Article 370 inter-dependently and not independently. Thus, Article 370(3) cannot be read in isolation but has to be read with the Article 370(1)(d) which is the only way to re-operate Article 370(3) of the Constitution while maintaining the federal structure of the Constitution of India. It is again reiterated that any interpretation, which make the provisions of the Constitution lifeless or useless, will violate the spirit of Article 370(3).

Now there is a common misreading of Section 147 read with its Second Proviso of the Constitution of J&K, within the legal solidarity, that Legislative Assembly of J&K as per Section 147 does not possess the constituent power to recommend a modification. It is to be noted that Second proviso of Section 147 provides that Legislative Assembly of J&K cannot move any bill or amendment in relation to Article 370. However, it does not create any fetter on the power of the President of India to confer the power on Legislative Assembly to merely make recommendation of any modification of Article 370. It is relevant to note that what is barred by section 147 is the “unilateral amendment of Article 370 by the Legislative Assembly of J&K” without taking recourse to the order of President of India and not the “modification of the same by the President with the recommendation of Legislative Assembly”.

Thus, after scanning the anatomy of the said questions, it may safely be concluded by the authors, that the President of India has the power under Article 370 (1) (d) to amend Article 367 and apply the same to state of J&K and it is not mandatory to take recourse to Article 368 for the same. It may also be concluded, that changing the meaning of “constituent assembly of state” to “Legislative Assembly of the State” under the proviso clause of Article 370 (3) does not affect the “federal structure” of the Constitution. Further, the President of India has the power to ‘modify’ Article 370(3) of the constitution itself and apply same to the state of J&K.

It is relevant to note that the said analysis is confined to the limited research of the authors. It will be seen in the coming time how the Constitution bench of the Hon’ble Supreme Court answers the said questions.

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Authors:

Disclaimer: The views or opinions expressed are solely of the author.