(Tanuj Sharma is a second year student at National Law University, Odisha)
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The Central Government having an overarching majority in the Parliament is often questioned upon the nature of laws and amendments such as the Citizenship Amendment Act or abrogation of Article 370 that have been passed in the Parliament. This has brought criticism from different spheres to these legislations. Prima facie, it looks threatening to our constitutional principles of balance of power as so much of authority to a single ideological party is likely to bring in a fascist regime. But at the same time, the Constitution gives the judiciary the power to maintain a system of checks and balances and to ensure that there is no misuse of power.
It has almost been a year since the decommissioning of Article 370, a provision of our Constitution which gave a special status to the state of J&K. While several developments in the state have taken place in this very year, there remains an unanswered question to its constitutionality as there have been criticisms of this move both politically and legally. However, this article seeks to reflect this controversial decision of the Central Government and critically analyse only the legal issues and their resolution to seek answers to the questions on the legitimacy of this move.
ABROGATION OF ARTICLE 370 AND THE PROBLEM WITH IT
The Government of India through a Presidential Order C.O. 272, dated August 5, 2019, revoked the special status of Jammu and Kashmir[i], provided under Article 370 of the constitution. In furtherance, The Jammu and Kashmir Reorganisation Bill 2019 along with the resolution to approve the decommissioning of the article was introduced in the Parliament by the Home Minister and was passed by both the houses. This step taken by the Central Government was widely criticized as being an authoritative one and also condemning how it was done. According to the Presidential Order, Article 370 has been very cleverly used to amend itself through Article 367, the interpretative provision of The Indian Constitution.
Since Article 370 cannot be revoked except for the concurrence of the elected assembly of J&K or two-thirds of majority in the parliament, the Government still went ahead in doing so. According to article 370(3), the following provision will cease to be operative by the issuance of a Presidential order. But it’s proviso states that in order to do that, the concurrence of the Constituent Assembly of Jammu & Kashmir is required and the same was dissolved in 1957. Thus, to make any changes in the Article or to revoke it, the consent of the constituent assembly was required, which was not possible due to its non- existence. To resolve this paradox, the Presidential Order added a clause (4) to article 367 where the terminology of the “Constituent Assembly of the state” was changed to “Legislative Assembly of the state”. This meant that for all the purposes, the reference for the Constituent Assembly shall be made to the Legislative Assembly and the latter can give its concurrence in the matters of article 370[ii].
This act of chicanery has raised three legal questions before the Central Government. While some have condemned this act as unconstitutional, others have levied legal justification for the same saying that this act was constitutional in nature and doesn’t violate any of its provisions. The following were the questions raised:
- How can article 370 be used to revoke itself merely by a Presidential Order?
- How can the consent of the Legislative Assembly be assumed as the state is under President’s rule since December 2018?
- Does the revocation of Article 370 violate the principle of federalism which is a part of the basic structure doctrine?
A major criticism for this action of the Government has been on the grounds that Article 370 as a provision can’t be used to abrogate itself by a Presidential order. The President used the powers given to him under article 370(3) to revoke the article. This was very cleverly done by adding a clause (4) to article 367, which helps to interpret the constitution. This raises a question on the validity of the way this was done. Since the constitution does not give the President any power to amend the article either directly or indirectly, then how can the order be valid? To answer this question, it’s important to refer to the Mohd. Maqbool Damnoo vs State of Jammu & Kashmir.
In this case, the validity of the Jammu and Kashmir Preventive Detention Act, 1967 was challenged before the Supreme Court as the legislation was passed without taking the consent of the Sadar-i-Riyasat. Earlier, an amendment was made to the Constitution of the state in 1965, according to which the office of Sadar-i-Riyasat was replaced by the office of the Governor. The same was notified to the Indian constitution by the Constitution (Application to Jammu & Kashmir) Second Amendment order, (1965)[iii]. This Presidential Order used the powers from article 370(3) to add a clause to Article 367 which stated that all the references earlier made to the office of the Sadar-i-Riyasat in Article 370, will now be construed as the office of the Governor. This was challenged in the court on the grounds of a backdoor entry made to amend article 370 via article 367. But the court rejected this and held the order to be constitutional in nature.
This is exactly what has been done now. Article 370 has been abrogated similarly by changing the interpretation of the provision. Further, the legitimacy of the earlier Presidential Order was upheld by the Supreme Court, which now should serve as a precedent to the validity of the recent Presidential Order.
Another conflicting issue is that as per Article 367(4), the Constituent Assembly was replaced by the Legislative Assembly. But the State Assembly was dissolved months back and the state is under the President’s rule during the emergency[iv]. This raises a question as to how the consent of the state assembly can be assumed.
A simple answer to this will be the exercise of legislative powers assigned to parliament under Proclamation issued under article 356. As per clause 1(b) of the article, the powers of the legislature of the state during the period of emergency shall be exercisable by the parliament. This being the case, it becomes justified on the part of the Parliament to assume the powers of the state assembly of J&K and to give consent on its behalf.
And lastly, it has been claimed that decommissioning Article 370 violates the principles of federalism, which is a part of the basic structure doctrine. And it was further held in the Kesavananda Bharati vs The State of Kerala judgmentthatthe basic structure of the constitution can’t be amended. Thus, rendering the said change to be unconstitutional.
To move ahead with this issue, it is imperative to first know the federal character of the constitution. In the text of the constitution, nowhere it is mentioned anything about the federal character expressly. The only provision that gives a reference of the federal structure is Article 246 in the seventh schedule. It is mentioned there that both the Centre and states have their matters of legislation on which the other can’t frame laws. But in case the matter of legislations made by both of them coincides, the law made by the centre will prevail. Even under Article 1, India has been described as a “union of states” which shows that the model of federalism we follow is more of a unitary form of federalism. Further, as per the Supreme Court judgment in the case of State of West Bengal vs UoI, it was held that the Indian federal structure is not of absolute federalism just like in the USA but it is more of a quasi-federal structure with a slight unitary tilt.
Lastly, there are two ways of looking at this issue of the scrapping of article 370. As one way is through the lens of the state of J&K, losing its autonomy and its special status being taken away. While the other and the more constitutionally aligned way of looking at it is to consider the full-fledged integration of J&K with the Union of India a means for the state to enjoy the fruits of economic development that this erstwhile provision was averting it to have.
CONCLUSION
This analysis of the constitutionality of the government’s decision has the following as its observations. Firstly, the government is justified on its part revoking Article 370 by amending Article 367. Secondly, as per Article 356, the President’s assent by assuming the role of the state assembly is not violative of the Constitution. And lastly, this move by the central government also doesn’t violate the basic structure of the Constitution. Hence, it will be safe to assume that the decommissioning of article 370 is constitutional and in no way violates its principles and values.
[i] THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 2019, C.O. 272
[ii] THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 2019, C.O. 272
[iii]i THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954 C.O. 48
[iv] After Governor’s rule, President’s rule comes into force in Jammu and Kashmir, The Economic Times (December 20, 2018), https://economictimes.indiatimes.com/news/politics-and-nation/after-governors-rule-presidents-rule-comes-into-force-in-jammu-and-kashmir/articleshow/67168758.cms
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