Abrogation of Article 370: A Legal Perspective
August 5th 2019 will be marked as an historical day in Indian history. On the said date the Union Government lead by PM Modi introduced Presidential Order 272 & 273 to abrogate the provisions of Article 370 which had chained Jammu & Kashmir from full integration with India. But before coming to the constitutional changes affected in August 2019 and the legal questions that arise lets briefly look into how this Article 370 has evolved. Article 370 which was incorporated in the Indian Constitution was part of the Constituent Assembly debates then as Article 306A. During the debate it was made clear that Jammu & Kashmir state is now integral part of Republic of India after the signing of instrument of accession, however it will get special status under the Indian constitution and there would be limit on the powers of the President of India or the applicability of the Indian constitution to the state. The said provisions were to be ‘Temporary, Transitional and Special Provisions’ as per the scheme of the constitution.
The constituent assembly was convened on 31st October 1951 to draft a Constitution for J&K. The Constituent Assembly was tasked to remove monarchy and install a democratic system of governance. A resolution to that effect was unanimously approved by the Constituent Assembly of J&K on 12th June 1952. The Hindu Dominated Jammu Praja Parishad submitted a memorandum to president of India demanding that the Indian constitution be applied in full to the state. This lead to 1952 Delhi Agreement and subsequently in August 1952 on the basis of the resolution passed by the J&K Constituent Assembly the monarchy was abolished and it was replaced by an elected head of state i.e. Sadar-i-Riyasat’. The Presidential Order CO. 44 of 1952 issued under Article 370(1) added an explanation under Article 370(1) that the Government of the state of J&K which was represented by Maharaja acting on the the advice of council of ministers would be replaced with Sadar-i-Riyasat in the Indian constitution. In 1954, a further Presidential Order was made after Delhi agreement of 1952 imposing Article 35A on the subjects of Jammu & Kashmir.
Constitution of Jammu & Kashmir, 6th Amendment Act of 1965 provided for appointment of Governor in Jammu & Kashmir instead of Sadar-I-Riyasat. The said amendment contrary to earlier scheme stated that Governor will be appointed by President of India who could be any citizen of India. The President of India on 24th November 1965 in exercise of power under Article 370(1) with concurrence of the Government of the state issued Constitutional Second Amendment Order 1965 (CO .74) through which it inserted clause (aa) to clause 4 of Article 367 re-designating Sadar-i-Riyasat as Governor of the state of Jammu & Kashmir. Thus Sadar-i-Riyasat as stated in Explanation 1 of to Article 370 was to be read as Governor of the state. This position was challenged before the Supreme Court in Mohd. Maqbool Damnoo Vs State of J&K (AIR 1972 SC 963) by petitioner stating that Government of India through backdoor provision of Article 367 was trying to amend Article 370 without approval of the constituent assembly through back door. The Hon’ble Supreme Court held as under:
“The Explanation to Art. 370(1) had ceased to operate because there was no longer any Sadar-i-Riyasat of Jammu and Kashmir. If the definition contained in the Explanation cannot apply to the words 'Government of the State’ the meaning given in Article 367(4) as amended will have to be given to it. If this meaning is given it is quite clear that the Governor is competent to give the concurrence, stipulated in Article 370 and perform other functions laid down by the Jammu and Kashmir Constitution. [Sampat Prakash v. State of Jammu and Kashmir, [1969] 2 S.C.R. 365; referred to.]
The contention that section 147 of the Constitution of Jammu and Kashmir contemplates perpetual existence of Sadar-i-Riyasat because this section expressly bars the Assembly from amending any provision of Art. 147 and one of the provisions continued in this section is that the assent to the amendment of the Constitution must be given by the Sadar-i-Riyasat, cannot be accepted. The Constitution itself contains section 18 which provides that unless the context otherwise requires the General Clauses Act, Samvat 1977 shall apply for the interpretation of this Constitution as it applies for the interpretation of the Act of the State legislature. By virtue of this Act the Governor is the successor to the Sadar-i-Riyasat. He would be entitled to exercise all the powers of the Sadar-i-Riyasat. There is no doubt that he is the successor. It is quite clear from sections 26, 27 and 28 of the Jammu and Kashmir Constitution that the Sadar-i-Riyasat is really the name given to the Head of the State. Under the said Constitution as amended the head of the State is designated as the Governor Sub-section (2) of section 26 as amended vests the executive powers of the State in him. The Governor is not elected as was the Sadar-i- Riyasat, but the mode of appointment would not make him any the less a successor to the Sadar-i-Riyasat. Both are heads of the State.
Clauses (aa) and (b) of Article 367(4) as substituted by CO 74 of 1965 (The Constitution Application to Jammu & Kashmir) Second Amendment Order, 1965 cannot be said to be an amendment of Article 370(1) by back door. The explanation had become otiose and the references to the sadar-i-Riyasat in other parts of the Constitution had also become otiose. there were two alternatives, first, either to leave the courts to interpret the word “Government of the State” and give in its legal meaning or secondly to give legal meaning in a definition clause. What has been done is that by adding clauses (11) and (b) a definition is supplied which the courts would have in any event given. Accordingly, it must held that the amending act was validly assented to by the Governor.”
Abrogation of Article 370
The above situation is exactly how it played out in August 2019. The union government through Presidential Order 272 dt 05th August 2019 invoking powers under Article 370(1) did the following things:
Superseded the Presidential Order of 1954 thus revoking Article 35A.
All the Provisions of the Constitution of India as amended from time to time shall apply to State of Jammu & Kashmir.
Adding Clause (4) to Article 367 of Indian Constitution where Sadar-I-Riyasat would be read as Governor of Jammu & Kashmir and the Government of the state would also refer to Governor of the state acting on advice of council of ministers.
That the world “Constituent Assembly” in Provisio to Clause (3) of Article 370 shall read as legislative assembly of the state.
With this presidential order the Union Government through parliament interpreted the term ‘Legislative Assembly’ of the state to be the successor of the Constituent Assembly. The president of India invoked Article 370(3) to terminate all other provisions of the Article 370 whilist maintaining a hollow shell of application of Indian constitution to Jammu & Kashmir in toto with a non obstante clause to any order, decree of the court, law in force, other provisions of the constitutions, treaties, agreements etc. Thus making the past precedents and all impediments redundant in abrogation of Article 370. These moves along with J&K Reorganization Act, 2019 and statutory resolution for PO 273 of 2019 formed part of the legislative business on Article 370 on 05th August 2019. This invited furore in some sections of country and many of the legal experts opined that this clever way of amending Article 370 through backdoor was unconstitutional and unsustainable in law.
Let us glance to legal objections that are raised qua the abrogation of Article 370 the way it was carried out . Firstly, the President of India under Article 370(3) has powers to repeal or amend Article 370 but only after with concurrence of the Constitution Assembly of J&K. However the said assembly was dissolved in 1957 after the Constitution of J&K was adopted. Thus the Government of India would have to satisfy two things before Supreme Court of India that, a) Legislative assembly of J&K is a successor of Constituent Assembly & b) that Concurrence of the People of J&K through Assembly was taken to establish its case.
Thus it must be noted that in Maqbool Damnoo Case (1972) as stated above the Supreme Court upheld the method of invoking Article 370(1) by the President to amend Article 367 and reading Sadar-i-Riyasat as Governor. The Court had rejected the plea that this was a backdoor amendment of Article 370 and stated rather Sadar-i-Riyasat was the natural successor of the Maharaja who was the executive head of the state. The Supreme Court went on to state that similarly the Governor also has to be into as Government of State instead of Sadar-i-Riyasat. Thus the issue of backdoor amendment of Article 370 through Article 367 is procedurally not ultra vires however what is to be tested is whether legislative assembly of J&K can be termed to be the successor of the constituent assembly. For this we will need to look into Constitution of Jammu & Kashmir. The J&K Constitution under Article 147 states that Legislative Assembly can make any amendment to the constitution barring Article 3 & 5, Article 147 and any provision of Constitution of India that links the state with the Union.
The detractors would here point out that the power of legislative assembly of J&K runs parallel to its jurisdiction to all matters barring the matters which fall into the exclusive domain of the Parliament of India. This would mean keeping Article 370 outside the purview of the legislative domain of legislative assembly of J&K. However, the counter argument can be that the power in Article 147 of J&K Constitution is qua amendment and not of concurrence as is envisaged in Article 370(3). We have seen previously in various instances when the J&K assembly has passed resolutions seeking more autonomy from the union government. On applying the Doctrine of Stare Decisis & the ratio of Damnoo case it could be said that the legislative assembly is the natural successor of the constituent assembly of J&K just like Governor is to Sadar-i-Riyasat.
However to fully understand who can give concurrence on behalf of the legislative assembly or any other authority or body in the state we would have to again refer to Constitution of J&K to see the ambit of the powers so laid out therein. In Section 92 of the J&K Constitution, it is stated that during a breakdown of constitutional machinery the Governor may by a proclamation:
Section 92(1)….
(a) assume to himself all or any of the functions of the Government of the State and al or any of the powers vested in or exercisable by anybody or authority in the state;
(b) make such incidental and consequential provisions as appear to the Governor to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provision of this Constitution relating to anybody or authority in the State:
Provided that nothing in this section shall authorise the Governor to assume to himself any of the powers vested in or exercisable by the High Court or to suspend in whole or in part the operation of any provision of this Constitution relating to the High Court.
(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.
(3) Any such Proclamation whether varied under subsection (2) or not, shall except where it is a Proclamation revoking a previous Proclamation, cease to operate on the expiration of six months from the date on which it was first issued.
(4) If the Government or by a Proclamation under his section assumes, to himself any, of the powers of the Legislature to make his laws, any law made by him in the exercise of that power shall, subject to, the terms there of continue to have effect until two years have elapsed from the date on which the proclamation ceases to have effect, unless sooner
(5) No Proclamation under this section shall, except where it is a Proclamation revoking a previous Proclamation, be laid before each House of the Legislature as soon as it is convened.”
Section 92 (1) & (4) of the J&K Constitution clearly enunciates that Governor acts on behalf of the state & can pass laws acting on behalf of legislative assembly of J&K which could include suspending in part or in full the provisions of the J&K Constitution itself. Thus the Governor was fully empowered to act on behalf of the legislative assembly of J&K which was under President Rule when Article 370 was revoked by the parliament of India. The law is very clearly laid down as we saw in the Delhi Civil Services Case (2023), where it was held that the writ of the executive head i.e. Lt. Governor runs parallel to the legislative power of Delhi assembly. When the J&K Constitution itself permits suspension of the constitution by the Governor, then by effect the legislature would have equally wide powers like that of the Constituent Assembly of J&K which no other state in India has. Even the President of India can not suspend the whole constitution of India unlike the unfettered powers Government of the State i.e. Governor had in Jammu & Kashmir.
By applying the principles of Damnoo case (supra) the Governor is the Government of the State and he represents the will of the people through legislative assembly in case of president rule as was the case here. Further his powers extend vastly to even suspend the constitution thus ipso facto the legislative assembly is represented through him would have the same power run concurrently making it at par of the constituent assembly of J&K. However state of J&K is under president rule with the Governor acting on his behalf under Article 356. In such circumstances as per the proclamation of president rule, the parliament of India under Article 356(1)(b) had the power to exercise the function on behalf of the legislative assembly. It can thus be deduced that President of India while exercising power under Article 370 (3) sought concurrence from Parliament of India to abrogate Article 370, acting for and on behalf of legislative assembly of the state of Jammu & Kashmir.
The will of the people of Jammu & Kashmir is one question that will be keenly debated but we must ought to remember that courts are bound by laws and not public opinions. The will of people of the people of J&K is represented through legislative assembly which during the president’s rule is bestowed in the Governor as per J&K’s own constitution. The Governor acts in the name of the president of India thus parliament acts and supplants its wisdom for the legislative assembly during president rule in J&K. Further questions will be asked that can Parliament through executive actions like these and statutory resolutions amend the constitution instead of going through normal route of Article 368. The answer is that the key for revocation of Article 370 was within the article itself and thus invoking Article 370(1) to read in interpretations in Article 367 qua state of Jammu & Kashmir were not barred or invalid.
Since Article 368 has not been invoked the even question of attracting basic structure doctrine does not come into to play at all as the Constituent Assembly and even the parliament of India at many occasions held that this is temporary and transitionary provision. Even PM Nehru on the floor of Lok Sabha on 27th November 1963, said that Article 370 has been eroded and the process of gradual erosion is going on. A year later, the then Home Minister Gulzari Lal Nanda, again on the floor of Lok Sabha on 4 December 1964, said, Article 370 is a tunnel to take the Constitution of India to Jammu and Kashmir. He further said that in the end, only the shell will remain there and it will be bereft of its contents, and it will hardly make any difference whether it is kept or not. Thus the will of the constitutional framers as well as parliament is known and that the Article 370 was temporary and transitory provision which has probably outlived its shelf life.
We must also keep in mind that Indian constitution is a quasi federal one with a strong center as been held by the supreme court in catena of cases. While the states have a lot power federalised in the constitution yet Temporary, Transitory & Special provisions in Part XXI of the Constitution gives President a special power on behalf of certain states like J&K under Article 370 reflecting a strong unitary bend in a quasi federal structure. In past many states have been reorganized like Telangana, Uttarakhand, Chhattisgarh & Jharkhand after passing of resolutions in respective state legislatures. But what differentiates Jammu & Kashmir with other states is that in case of J&K there is a separate constitution unlike other states that vastly empowered the governor to act on behalf of state legislature in certain circumstances. Thus the said comparison would be totally erroneous and would make this case fall outside the scope of usual procedure followed under Article 3 & Article 368 of the Constitution for reorganization of states by Parliament.
In such circumstances it can be said that even J&K Reorganization Act of 2019 would also stand test of law. Thus revocation of Article 370 has lead to fulfilment of representation to marginalized sections of society in J&K while giving equality before law to women who would earlier be deprived of their inheritance rights by marrying to subjects outside the state. Abrogation of Article 370 would also mean laws like RTI & RTE stood applied to the State of Jammu & Kashmir. These measures in true sense fulfill the very egalitarian principles of our transformative constitution which can’t remain mute to inherent discrimination of separate laws, separate flags and separate constitution in one country. 05th August 2019 would indeed go down as a historic date where parliament of India dealt a severe blow to the separatists agenda in the valley sponsored from across the border sending across a unifying message that India stands as one behind one flag and one constitution.