November 29, 2020

India Judiciary and Article 370 of the Constitution

After India sought independence from the British rule, Kashmir chose to remain an independent territory, neither joining India nor Pakistan. It was ruled by a Hindu king, Hari Singh, with a majority of Muslims. [1] However, a sudden attack by armed tribesmen in the Kashmiri region made the Maharaja seek military aid from India to protect them from the invasion.[2] Indian Army was sent to Kashmir on the condition that it would accede to India. This event led to Hari Singh signing the Instrument of Accession with the Indian government, nonetheless, on certain terms and conditions.[3] The adoption of Article 370 in the Constitution of India is a result of the agreement between the two sovereign states and is a constitutional recognition of the terms mentioned in the Instrument of Accession and assures Kashmir its distinct political, cultural and regional identity.[4]

Article 370 is a part of the Temporary, Transitional and Special Provisions, under Part XXI of the Indian Constitution.[5] It bestows a special status to Kashmir, conferring a certain level of autonomy to draft their own Constitution separate from India, and only transferring the authority to control the defence, communications, and foreign affairs to the central government.[6] It curbs the power of the Parliament in the matters of Union and Concurrent lists of the seventh schedule which is not included in the Instrument of Accession, since it requires the concurrence of the State government of Jammu and Kashmir. [7]Also, if any article of the constitution is to be made applicable to Kashmir, the president can do so by issuing an order under Art.370(1)(d), after a consultation with the state government.[8] Moreover, Art.370(1)(c) contains that Article 1 of the Constitution is applicable to Kashmir, making it a part of the Indian territory.[9] Further, under Art.370(3), if this article is to be modified or declared inoperative, the President can issue a notification only after an approval by the Constituent Assemble of the State which implies that if Art.370 is to be amended itself, the consent of the constituent assembly is required, however, the constituent assembly of Jammu and Kashmir (J&K) ceased to exist in 1957.[10]

In the present day, three important events have taken place. First, is the issuance of the Presidential Order C.O. 272 which de-operationalizes Art.370. [11] Second, is the Statutory Resolution introduced in the Rajya Sabha proposing an abolition (most of) of Art.370. [12] Finally, a Reorganisation Bill was introduced bifurcating Jammu and Kashmir into two union territories: Ladakh (without a legislature) and Jammu and Kashmir (with a legislature). [13] Now, there are serious constitutional repercussions attached to these three documents. The President has used the power granted under Art.370(1) to add a new clause to Article 367, i.e., the interpretation clause of the constitution. This clause states that the phrase ‘Constituent Assembly of the State’ in the proviso of Art.370(3) must be read as the ‘Legislative Assembly of the State.’[14] In effect, the power under Art.370(1) has been used to amend Art.367 which in turn, amends Art.370(3) which brings about the Statutory Resolution, suggesting the President to invalidate much of Art.370 because the approval of the Constituent Assembly is no longer required.[15] This presidential order will be challenged in the Supreme court of India.

There are numerous problems associated with this order which need to be addressed in the court of law. The most preeminent contention that would appear before the Supreme Court (SC) would be a challenge to the legality of the order issued. This order uses Art.370 to amend 370 itself, even though technically it amended Art.367, the indirect effect of it fell upon 370. Now, Art.370(1)(c) states that Art.1 and Art.370 would be applicable to Kashmir which clearly implies that the President does not have the authority to amend Art.370 in relation to J&K.[16] Also, Art.370(1)(d) states that only “other provisions” of the Constitution may be modified by the President.[17] Moreover, the Supreme Court has stated in the case of P.L. Lakhanpal v. The State of Jammu and Kashmir[18] that a Presidential order under Art.370(1) cannot amend Art.1 and Art.370 and further reaffirmed this decision in Sampat Prakash v. The State of Jammu and Kashmir.[19] Furthermore, this is clearly a situation of amendment from backdoor and the SC has ruled on several instances that what cannot be done directly can also not be performed indirectly.[20] Hence, the Presidential Order issued has not followed the due process of law and should be declared unconstitutional.

The second fundamental issue arising is not taking the consent of the State of J&K into account before publishing the Order. However, the Order states that their concurrence has already been taken but in reality, J&K does not have an elected legislative assembly and has been under the President’s governance for a long period of time.[21] Therefore, the consent that was taken into consideration was that of the Governor, who is an agent of the President in the State and the President acts on the aid and advice of the Central Government. In essence, the Parliament has taken its own consent to amend the Article because in J&K all powers of the Legislature are a subject to supervision of the Parliament and are exercised under the authority of the President.[22] A decision of much constitutional significance that seeks to change the entire status of a State permanently, cannot be just approved by a single person without any elected government. Similarly, with respect to the Reorganisation Bill, Art.3 suggests that the views of the State Assembly must be considered before bifurcating it into two union territories, the consultation that was accounted for was that of the Parliament. [23] The SC had held in D.C. Wadhwa [24] that even formal legality can amount to a fraud on the Constitution and in this situation using only one person who functions on the aid and advice of the President to approve the Order is amounting to fraud on constitution.[25]

The third issue in question is whether the Legislative Assembly can act as a constitutional replacement for the Constituent Assembly of Jammu and Kashmir. To answer this question, we need to understand the difference between legislative and constituent powers. Legislative power is the power to make the laws and the latter can make changes to the Constitution. Therefore, the legislative assembly of J&K must possess a constituent power to recommend modification to Art.370 to substitute Constituent Assembly. However, the legislative assembly does not have this power and also, Art. 147 of the Constitution of J&K prohibits the Legislative Assembly of that State to make any amendments to Art.370 of the Indian Constitution, hence, the State of J&K cannot actively introduce or seek to make any change in Art.370.[26] Therefore, the only competent authority to do so is the Constituent Assembly which does not exist anymore.

Another concern is whether Art.370 is a permanent part of the constitution and falls within the ambit of the basic structure. In Prem Nath Kaul[27], the court had instilled great importance to the final decisions of the Constituent Assembly and had stated that any decision by the Parliament is conditional unless the Constituent Assembly approves it. Moreover, a petition filed by Kumari Vijaylakshmi Shah seeking to declare Art.370 as temporary in nature was rejected by the court and was held that even though Art.370 was intended to be a temporary provision, it can only be abrogated when the Constituent Assembly makes a recommendation to the President but since the said assembly was dissolved without making any such suggestion, 370 became a permanent part of the Constitution and had reaffirmed this decision in State bank of India v. Santosh Gupta.[28] In addition, 370 is also a representation of the principle of federalism which constitutes a part of the basic structure of the Constitution. For instance, Art.35A provides certain benefits to the people residing in Kashmir, such as, no one living outside of J&K can purchase property in Kashmir.[29] In Kesavananda Bharati, the SC had ruled that the basic structure of the constitution cannot be eroded or altered through an amendatory process. [30] Hence, it becomes clear that 370 is not only a permanent part of the constitution but also comprises the basic structure and it clearly cannot be violated.

The most pressing and essential matter of contention in the SC would be that of the fundamental rights of the Kashmiris being violated. The state of Kashmir is under a curfew and all sources of communication including phone lines and internet services have been shut down. Even access to basic amenities like healthcare, banks, educational institutions, shops, public offices are suspended. Also, political leaders like Omar Abullah and Mehbooba Mufti are under preventive detention, under s.144 of the Criminal Procedure Code, without any sign of public unrest in the State. Moreover, satellite phones were given to key political leaders and no one else. [31] This imposition by the government is in complete violation of Art.19 (right to freedom of speech), Art.21(right to life and personal liberty) and Art.14 (right to equality) of the Constitution. The inhabitants of Kashmir were completely unaware of the events taking place in the outside world, they were not allowed to carry out their business or practise trade, their freedom to press, movement and personal liberty was curbed. Further, preventive detention should only be used in extreme emergent situations where the government is completely sure that there is a threat to public order. To impose such restrictions without any emergency is absolutely unnecessary and alarming. [32]

After considering the above arguments, I feel that the whole procedure involved in issuing the Presidential Order was legally flawed. Keeping the principle of democracy in mind, the central government should have consulted a greater number of representatives of J&K. Also, the spirit of federalism asks us to preserve the diversity in our country and removing the special status of J&K would be a serious blow to it. Moreover, keeping political leaders on house arrest is an extreme form of measure taken by the government without any threat to the security of the State. Their detention must be immediately revoked, and the curfew levied on Kashmir should be removed. Every attempt must be made to restore normalcy in the State. Furthermore, before acceding to India, Kashmir was a sovereign state and then later it granted India a limited autonomy over it. The Instrument of Accession, Article 370, and various Supreme court decisions all signify that it should be the State of Jammu and Kashmir who should define the constitutional relationship between India and itself and it should not be the other way around. The government cannot encroach upon the powers of J&K. [33]The Supreme Court of India should hold the Presidential Order and the Reorganisation Bill as unconstitutional and invalid because it destroys the very fabric of the Constitution of India.

BIBLIOGRAPHY:

1. S.P.Sathe, Article 370: Constitutional Obligations and Compulsions, 25 EPW (1990).

2. EPW Engage, Article 370: A Short History of Kashmir’s Accession to India, Economic and Political Weekly (Aug. 6, 2019), https://www.epw.in/engage/article/article-370-short-history-kashmirs-accession-india.

3. Gautam Bhatia, The Article 370 Amendments On Jammu & Kashmir: Key Legal Issues, Bloomberg Quint (Aug. 5, 2019, 8:54 PM), https://www.bloombergquint.com/opinion/the-article-370-amendments-key-legal-issues.

4. INDIA CONST.

5. P.L. Lakhanpal v. The State of Jammu and Kashmir, (1956) A.I.R. 197 (India).

6. Sampat Prakash v. The State of Jammu and Kashmir, (1969) 1 S.C.C. 562 (India).

7. Interview by Apurva Vishwanath with Aman Hingorani, Lawyer (Sept. 1, 2019), https://indianexpress.com/article/explained/kashmir-issue-art-370-solution-removing-it-dr-aman-hingorani-5954862/

8. D.C. Wadhwa & Ors. v. State of Bihar & Ors., (1987) 1 S.C.C. 378 (India).

9. Shruthisagar Yamunan, Two petitions by Kashmiris challenge changes to 370, say Constitution’s basic structure is violated, Scroll.in (Aug. 11, 2019, 3:02 PM), https://scroll.in/article/933503/two-petitions-by-kashmiris-challenge-changes-to-370-say-constitutions-basic-structure-is-violated.

10. Prem Nath Kaul v. The State of Jammu and Kashmir, (1959) A.I.R. 749 (India).

11. State Bank of India v. Santosh Gupta, (2017) 1 S.C.C. 538 (India).

12. Faizan Mustafa, Article 370, Federalism and the Basic Structure of the Constitution, The India Forum (Aug. 5, 2019), https://www.theindiaforum.in/article/article-370-federalism-and-basic-structure-constitution.

13. Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225 (India).

14. Parjanya Bhatt, Scrapping of Article 370 – A political misadventure or long-neglected necessity?, Obserever Research Foundation (Aug. 6, 2019), https://www.orfonline.org/expert-speak/scrapping-of-article-370-a-political-misadventure-or-long-neglected-necessity-54131/.

Endnotes:

[1] S.P.Sathe, Article 370: Constitutional Obligations and Compulsions, 25 EPW 932, 932 (1990).

[2] EPW Engage, Article 370: A Short History of Kashmir’s Accession to India, Economic and Political Weekly (Aug. 6, 2019), https://www.epw.in/engage/article/article-370-short-history-kashmirs-accession-india.

[3] Id.

[4] Sathe, supra note 1.

[5] INDIA CONST. art. 370.

[6] Sathe, supra note 1.

[7] INDIA CONST. art. 370.

[8] INDIA CONST. art. 370, cl. 1.

[9] Id.

[10] Sathe, supra note 1.

[11] Gautam Bhatia, The Article 370 Amendments On Jammu & Kashmir: Key Legal Issues, Bloomberg Quint (Aug. 5, 2019, 8:54 PM), https://www.bloombergquint.com/opinion/the-article-370-amendments-key-legal-issues.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] P.L. Lakhanpal v. The State of Jammu and Kashmir, (1956) A.I.R. 197 (India).

[19] Sampat Prakash v. The State of Jammu and Kashmir, (1969) 1 S.C.C. 562 (India).

[20] Interview by Apurva Vishwanath with Aman Hingorani, Lawyer (Sept. 1, 2019), https://indianexpress.com/article/explained/kashmir-issue-art-370-solution-removing-it-dr-aman-hingorani-5954862/.

[21] Bhatia, supra note 11.

[22] Id.

[23] Hingorani, supra note 20.

[24] D.C. Wadhwa & Ors. v. State of Bihar & Ors., (1987) 1 S.C.C. 378 (India).

[25] Bhatia, supra note 11.

[26] Shruthisagar Yamunan, Two petitions by Kashmiris challenge changes to 370, say Constitution’s basic structure is violated, Scroll.in (Aug. 11, 2019, 3:02 PM), https://scroll.in/article/933503/two-petitions-by-kashmiris-challenge-changes-to-370-say-constitutions-basic-structure-is-violated.

[27] Prem Nath Kaul v. The State f Jammu and Kashmir, (1959) A.I.R. 749 (India).

[28] State Bank of India v. Santosh Gupta, (2017) 1 S.C.C. 538 (India).

[29] Faizan Mustafa, Article 370, Federalism and the Basic Structure of the Constitution, The India Forum (Aug. 5, 2019), https://www.theindiaforum.in/article/article-370-federalism-and-basic-structure-constitution.

[30] Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225 (India).

[31] Parjanya Bhatt, Scrapping of Article 370 – A political misadventure or long-neglected necessity?, Obserever Research Foundation (Aug. 6, 2019), https://www.orfonline.org/expert-speak/scrapping-of-article-370-a-political-misadventure-or-long-neglected-necessity-54131/.

[32]Interview by ET Contributers with Soli Sorabjee, Former Attorney General of India (Aug. 11, 2019), https://economictimes.indiatimes.com/news/politics-and-nation/soli-sorabjee-abrogating-article-370-is-constitutional-detaining-leaders-disturbing/articleshow/70622834.cms?from=mdr.

[33] Hingorani, supra note 20.

Author Details: Nandini Modi ( O.P. Jindal Global University)

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