August 3, 2021

Article 370 Abolition: in the Light of Doctrine of Colourable Legislation

The incorporation of Article 370 on 17th October, 1949 after a long debate in the Constituent Assembly was one of the major historic inclusions made in the Indian Constitution. Then it was on 5th August, 2019 that one Presidential Notification, known as The Constitution (Application to Jammu and Kashmir) Order, 2019 was issued with the aim of amending the Article 367 which is the interpretative clause of the Constitution for Article 370, by inserting a new sub-clause, that is Article 367(4)(d) and scrapping off the 65 year old Order, known as The Constitution (Application to Jammu and Kashmir) Order, 1954. By doing this not only the special rights and privileges enjoyed by the State of Jammu & Kashmir (hereinafter State) are taken away, but also from now on the Constitution of India will come into force there. With this new Order many questions were raised on the competency of the Legislation and on the proficiency of such step taken by it. In order to analyze this Order we will here take the help of the Doctrine of Colourable Legislation, which raises the question of competency whenever any law is enacted by the legislature.

The concept of the Doctrine of Colourable Legislation was discussed by the Supreme Court in the case of K.C. Gajapati Narayan Deo vs. The State of Orissa.[1] In this case the court stated that,

“It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bono fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law….The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere presence or disguise….The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly. If a legislature is competent to do a thing directly, then the mere fact that it attempted to do it in an indirect or disguised manner, cannot make the Act invalid.”[2]

As this Doctrine is based on the maxim “you cannot do indirectly what you cannot do directly” therefore it comes into play whenever a legislature attempts to do something indirectly, which it is not allowed to do directly, as in the current abrogation of Article 370. The Doctrine is not concerned with the question of motive or intention behind enacting a law, as malice or motive is beside the point, and it is not permissible to suggest parliamentary incompetence on the score of mala fides.[3]

Article 370 was inserted in the constitution as a temporary clause to provide special status to the State. It was done so, as it was contended by The Honorable Shri N Gopalaswami Ayyangar in the Constituent Assembly that it “is due to the special conditions of Kashmir. That particular State is not yet ripe for this kind of integration….there has been a war going on within the limits of Jammu and Kashmir State. There was a cease-fire agreed to…. and that cease-fire is still on. But the conditions in the State are still unusual and abnormal. They have not settled down. It is therefore necessary that the administration of the State should be geared to these unusual conditions until normal life is restored as in the case of the other States.”[4] The Article hence which was adopted by the Constituent Assembly in its clause (3) read that,

“Notwithstanding anything in the preceding clause 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:

Provided that the recommendation of the Constituent Assembly of the State shall be necessary before the President issues such a notification.”[5]

Basically Article 370(3) provides that President has the power to cease the operation of Article 370 if a recommendation is made by the Constituent Assembly of the State. But to get such recommendation is impossible as there exist no state assembly. Now here comes the role of new amendment made in Article 367 where the words “constituent assembly of the state” has been changed to “legislative assembly of the state”, a tactful step taken by the Government as in the State exist Governor’s Rule, the rule of Governor, who acts as the representative of the President and will be able to give recommendation on behalf of the State to the Union. The Government chose such step because in order to abrogate Article 370 it was either required to get concurrence of the State or to get Special Majority in the Parliament for such abrogation and to get any of the condition fulfill was near to impossible for this Government, hence such step was taken. Therefore, it is not wrong to mention here that rather than opting for the direct measure the government went for an indirect measure. In the light of Doctrine of Colourable Legislation it can be clearly seen that such abrogation of Article 370 is done indirectly which couldn’t be done directly. It is because no such recommendation or concurrence was taken by the Constituent Assembly of Jammu & Kashmir, which is against the provision of Article 370 (3) and such action by the government amounts to fraud in the Constitution. Here comes the need to check the steps taken by the government or the legislature as where the law making authority is of a limited or qualified

Character, it may be necessary to examine with some strictness the substance of the legislation for the purpose of determining what is that the legislature is really doing, as said by Duff J.[6]

The Constituent Assembly by making Article 370 a temporary clause, meant that someday or the other the Constitution of India will be fully enforced in the State but only when the State is fully ready enough to establish relationship with the Union the way other states were able to establish then. But it can be clearly seen that the State is not yet able to achieve the normal situation to establish perfect relationship with the Union the way other states are able to. Still it can be seen that the State is facing day to day violence and now with the coming of with this new order, I don’t find situation getting stable but getting much more worse. It can be seen that the government is not able to understand the motive of the Constituent Assembly behind making such a temporary clause and interfered in it using their own tactics just to fulfil the manifesto the government presented in May, 2019 after winning the parliamentary elections.

[1] AIR 1953 SC 375.

[2] Ibid.

[3] R.S. Joshi v. Ajit Mills, Ahmedabad, AIR 1977 SC 2279.

[4] Constituent Assembly Debates, Volume X, pp 421-429.

[5] Ibid.

[6] Attorney-General for Ontario v. Reciprocal Insurers & Others, [1924] A.C. 328 at 337.

Author Details: Anam Khan (School of Law, University of Petroleum and Energy Studies (UPES), Dehradun)

The views of the author are personal only. (if any)


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