Scrapping of Article 370 is the biggest attack on Constitution

On 5th August, 2019, the Government of India introduced a slew of measures, unilaterally and undemocratically, which, in effect, revoked the ‘special status’ granted to the State of Jammu and Kashmir, by virtue of Article 370 of the Constitution. In fact, Article 370 has been a much abused provision of the Constitution, especially by the current government aficionados and supporters. Before we understand the import of what changes have been stream rolled, it is important to understand the historical background of Article 370.

At the time of independence in August, 1947, the Indian Independence Act came into force, which gave an option to the Indian Princely States, total 565 in number including the Princely State of Jammu & Kashmir ruled by Maharaja Hari Singh, to either remain independent, or join the Dominion of India or the Dominion of Pakistan. Though most Princely States signed an instrument of accession with India, the State of Jammu & Kashmir did not, since the then Maharaja Hari Singh wanted to remain independent. However, just a few months later, on 20th October, 1947, Jammu & Kashmir was attacked by many armed tribesmen ostensibly from Pakistan, creating panic in Maharaja Hari Singh who did not have sufficient local army to quell the attack, and to protect the territory. Accordingly, he sought India’s help, and signed the instrument of accession with India on 27th October, 1947.

A bare perusal of the Instrument of Accession would reveal that it constituted the kernel of agreement between the State of Jammu & Kashmir and the Dominion of India. The Instrument along with the schedule made it clear that the Indian Parliament could enact laws only on defence, foreign affairs and communications, while on rest of the issues, the State has dominion over. Clause 4 of Instrument declared that “I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor General and the Ruler of this State, then any such agreement shall be deemed to form part of this Instrument and shall be construed and have effect accordingly.”

Furthermore, Jammu & Kashmir did not participate in the drafting of the Constitution in the Constituent Assembly till June, 1949, when Sheikh Abdullah and three others joined the Assembly, which was deliberating on Article 306A (similar to Article 370 of the present Constitution). In the Constituent Assembly debates, it was clearly stated that “... the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of constituent assembly, will determine the constitution of the state as well as the sphere of Union jurisdiction over the State......”

Accordingly, Article 370 was introduced in the Constitution, and along with the instrument of accession, it became the constitutional arrangement between the Republic of India, and the State of Jammu & Kashmir.

Article 370(1)(b) clearly provides that the Parliament has the power to enact laws only on the subjects mentioned in the Instrument of Accession, and any other matter, would require the consent of the government of the J&K. Even where the Parliament has the power, then President cannot issue any order without consulting the State Government. Article 370(3) further provides that the President may, by a notification declare that this provision may cease to exist, or may modify it, after taking the recommendation of the Constituent Assembly. In effect, Article 370 of the Constitution sought to grant autonomy to the State of Jammu & Kashmir, while being part of the Republic of India, since it was the central aspect of the Instrument of Accession. Article 370, as it is sought to be portrayed, was not a bounty or charity given to the people of Jammu & Kashmir, but a constitutional promise made by the Indian State at its inception.

On 5th August, 2019, the Government promulgated a ‘Presidential Order’ under Article 370(1) of the Constitution, which sought to amend Article 367 of the Constitution that pertains to interpretation of the Constitution. As per the order, Article 367(4) was added, which provides, amongst others, that “references to the Government of the said State shall be construed as references to the Governor of Jammu & Kashmir acting on the advice of his Council of Ministers”. Further, the order stated that “the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”. The order also provides that “references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State”;

In other words, the Presidential Order seeks to revoke Article 370 without amending a single word of Article 370, but by amending Article 367! This is completely legally untenable, since the only provision which empowers the Parliament to amend the Constitution is Article 368. There is nothing in Article 370 that empowers the President to amend other provisions of the Constitution. Further, Article 370(3) clearly states that the President can notify an order, either abrogating or modifying Article 370, only after the recommendation of the Constituent Assembly of J&K. Even if we assume that the Constituent Assembly of J&K is to be read as the Legislative Assembly of J&K, it is evident that the Presidential Order could not have promulgated this order, without taking the consent of the State Government.

Admittedly, J&K does not have an elected assembly for the last few months, and is under President’s Rule, i.e. the Governor, who is a representative of the Executive, is administering the State. Accordingly, the Governor’s consent can never amount to taking consent from State Government of J&K. The essence of Article 370 lies in the concurrence of State Government to any Parliamentary legislation or to any Presidential order. To argue that in the event of President’s Rule in J&K, the Governor’s consent would constitute the consent of the State Government is not just outrageous, but is a complete fraud on the Constitution.

In addition, the Central Government also introduced the Jammu & Kashmir Reorganisation Bill, 2019, which seeks to bifurcate the State of Jammu & Kashmir, into two Union Territories, i.e., the Union Territory of Ladakh (including the districts of Leh and Kargil), with no legislature, and the Union Territory of Jammu & Kashmir, with a legislature. This is the first time that the Parliament has converted a State into a Union Territory, to be administered through the aegis of the Lieutenant Governor appointed by the Central Government.

While Article 1 states that India, i.e., Bharat shall be a Union of States, Article 3 provides the procedure for the formation of new States and alteration of areas, boundaries or names of existing States. There is nothing in Article 3 that states that an existing State can be divided into two Union Territories, though an existing State can be divided into two States, as has happened many times in the past. Further, the proviso to the Article 3(3) clearly provides that no such Bill can be introduced in the Parliament, except on the recommendation of the President, and where such Bill has been referred to by the President to the legislature of the State for expressing its views.

In the present case, firstly, an existing State cannot be stripped off its Statehood unilaterally by the Central Government, and even if it is possible, the President had to seek the views of the Legislative Assembly of J&K. The views of the Governor in this case are irrelevant. None of the constitutional or parliamentary procedures have been followed. It is a direct assault on the federal structure of India, as well as on the central tenent of instrument of accession between J&K and India. With Article 370, in effect, being abrogated, the very aspect of accession of J&K to India is legally questionable now.

There are too many legal infirmities in both the Presidential Order and the J&K Reorganisation Bill, 2019, for it to stand constitutional scrutiny. But when all known procedures of law and constitutional norms are being torn apart, may be the principles of applying constitutional scrutiny would be given a go by.