Outmanoeuvred?

A five-judge Constitution Bench of the Supreme Court passed a judgment on March 2, 2020, where the petitioners prayed that petitions challenging the constitutional validity of scrapping Article 370 in J&K be referred to a larger bench. The ground for such a prayer was that there were two conflicting judgments of the Supreme Court on the status of Article 370, and therefore, there was a need to get the issue settled by a larger bench.

In the Prem Nath Kaul case (1959), the Supreme Court observed that Article 370 (2) shows that the continuance of the exercise of powers conferred on Parli­ament and the president by the provisions of Article 370 (1) is “made conditional on the final approval of the Constituent Assembly of Kashmir”. However, in the Sampat Prakash case (1968), the apex court decided that “Article 370 has never ceased to be operative” and it could be invoked even after the dissolution of the Constituent Assembly.

The present five-judge bench, however, held that there was no conflict between the judgments of the Supreme Court in the cases under reference and therefore, there was no case for referring the matter to a larger bench. The bench stated, inter alia, that the continuation or cessation of the operation of Article 370 after the dissolution of the Constituent Assembly of the state was not an issue before the Supreme Court in the Prem Nath Kaul case unlike in the Sampat Prakash case.

To understand this issue, we need to examine the relevant provisions of Article 370 that governed the relationship between the government of India and the state of J&K. India achieved independence through the Indian Independence Act, 1947 which provided that from August 15, 1947, there would be two independent dominions of India and Pakistan. The princely states were to join either of them. They were also given a third option—to remain independent. Quite a few of them were toying with the idea of remaining independent. However, all but the state of J&K joined India by August 15, 1947, or soon after.

But when Kashmir was invaded on October 22, 1947, Maharaja Hari Singh sought military help from Delhi and simultaneously requested accession of Kashmir to India. Thus, Kashmir was acceded to India under exceptional circumstances on October 26, 1947. Yet, the Maharaja slipped in certain clauses in the Instrument of Accession of Kashmir that would help him retain some extent of sovereignty over the state. Thus, the accession of Kashmir was different from those of other princely states, and it was a conditional one.

These facts had a bearing in the making of Article 370. The effect of Article 370 read with Article 1 of the Constitution can be summarised as follows:

1. i) The act of accession of the state of J&K was unequivocally given legal effect by declaring J&K a part of the territory of India by virtue of Article 1 read with Serial No 15 of the First Schedule.
2. ii) The legislative authority of Parliament over the state of J&K would be such that in addition to defence, external affairs and communication, which are specified in the Instrument of Accession of Kashmir, the Union Parliament can also make laws with regard to the items in the Union and Concurrent Lists, but only with the concurrence of the state government.

iii) Article 238 which concerns application of certain provisions relating to the princely states will have no effect on J&K.

1. iv) In terms of Clause (3) of Article 370, the president may, on the recommendations of the Constituent Assembly, issue an order that Article 370 will either cease to be operative or shall be operative only subject to such exceptions and modifications as may be specified by the president.

Very briefly, it can be said that Article 370 extends autonomy to J&K by making it clear that except for the provisions so specified in the Constitution, no other provisions of the Indian Constitution would be applicable to it.

Article 35A, introduced later on May 14, 1954, empowered the J&K Legislature to do a few things; these included defining “permanent residents” of the state and emphasising exclusive and special rights and privileges with regard to the acquisition of immovable property in the state, employment under the state government, and so on. The idea was that the benefits to which the residents of the erstwhile princely state of Kashmir were entitled were not to be withdrawn with Kashmir joining the Indian Union. Thus, Article 370 and Article 35A took care of the restricted autonomy for Kashmir. The elements of such autonomy were also enshrined in the new Constitution of the state of J&K that was introduced in November 1956.

Let us now understand certain specific provisions of Articles 370 and 35A as they stood before August 5, 2019.

Article 370 had barred application of certain provisions of the Indian Const­itution to the state of J&K. Article 370(1) (c) and 370 (1) (d) deal with the applicability of the Indian Constitution to the state of J&K. In terms of Article 370 (1) (c), the two articles, i.e. Article 1 and Article 370 of the Constitution will apply to J&K.

Article 370(1)(d) is important. Under it, the Indian constitutional provisions could be applied to J&K from time to time, as modified through a presidential order and, importantly, after the concurrence of the state government.

Another important provision of Article 370 was the proviso to Clause 3. This clause itself authorised the president to pass an order removing or modifying parts of Article 370. But, there is an equally important proviso to it which stated: “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.”

The issue is that the Constituent Assembly of J&K was dissolved and it ceased to function from January 1957. This led to a longstanding debate on whether Article 370 has become permanent effectively because there was no Constituent Assembly to give consent. A question was also raised whether it would require a revival of the J&K State Constituent Assembly to amend it or whether it can be amended through the normal amendment procedure under the Constitution. Further, the state of J&K was under President’s Rule from December 2018. Therefore, obtaining the concurrence of the state government was an issue as it was non-existent during this time.

In the present context, another important article is Article 367 which provides various guidelines about how the Constitution may be interpreted. The presidential order of August 5, 2019 added clause (4) with four sub-clauses to Article 367 where “Sadar–I Riyasat” will be construed as “governor of Jammu & Kashmir” and “State Government” shall include the governor. Further, the words “Constituent Assembly” used in Article 370(3) must be read as “Legislative Assembly of Jammu & Kashmir”.

So how was the special state status as provided by Article 370 abrogated and J&K bifurcated? First of all, the Presidential Order C.O. 272 issued on August 5, 2019, used Article 370(1) (d) to apply all provisions of the Indian Constitution other than Articles 1 and 370 to the state of J&K. As mentioned, Articles 1 and 370 were already applicable to J&K by virtue of Article 370 (1)(c).

Article 370(1)(d) does allow the president to amend or modify various provisions of the Constitution in relation to J&K, but with the concurrence of the government of J&K. Under Article 370(1)(b)(i) and (ii), similar concurrence of the government of J&K is needed for the president’s exercise of power in respect of matters in the Union List and the Concurrent List.

So, the Presidential Order C.O. 272 used the power of the president under Article 370 (1) to indirectly amend Article 370 (3) and Article 370 (1) itself via a third constitutional provision i.e. Article 367, which provides various guidelines on the interpretation of the Constitution.

By virtue of the aforesaid amendments of Article 367 through Presid­ential C.O. 272, the governor of J&K, who is a representative of the central government, became the government of J&K. Further, the Legislative Assembly became the Constituent Assembly. But there being no Legislative Assembly because the state was under President’s Rule, it fell upon Parliament to make the recommendations which were to come from the J&K Legislative Assembly. Thus, a number of legal fictions were created in order to achieve various objectives in respect of abrogation of special status of the state of J&K.

Finally, on the issue of breaking up J&K, Article 3 of the Constitution gives Parliament the power to change the boundaries of a state and to form a new one by simple majority. But this change required that such a Bill be first referred to the concerned state assembly by the president for ascertaining its views. But as there was no Legis­lative Assembly, the Second Resolution of the Parliament stated that the president had referred the Jammu & Kashmir Reorganisation Bill, 2019 to Parliament for its views as it is vested with the powers of the state legislature of J&K. On passing by Parliament, the state of J&K got bifurcated into two Union Territories from October 31, 2019.

In the best tradition of Indian democracy, debate started in various platforms on the correctness or otherwise of the government actions. Broadly, five main issues emerged out of them:

(1) Was Article 370 just a temporary provision or has it effectively become permanent since there was no Constituent Assembly in Kashmir to give consent?

(2) Can Article 370 be used first to amend Article 367, and thereafter the amended Article 367 be used to amend Article 370 itself, to call the Legislative Assembly as the Constituent Assembly?

(3) Can the governor of the state under President’s Rule be called the state government?

(4) Have the conditions relating to “sovereignty” in the Instrument of Accession of Kashmir been violated, and if so, are they valid?

(5) Is the reorganisation of the State of J&K by bifurcating it and converting the parts into Union Territories without the approval of the state legislature and the state government valid in law?

The jury is out on this. The Supreme Court judgment of March 2, 2020, has not gone into the merits of the issues. The wait starts for the final verdict of the Supreme Court on this.

—The writer is former Chairman, Central Board of Excise Customs and author of the book “Article 370 Explained for the Common Man”

Illustration: Amitava Sen