The abrogation of Article 370: Questions of Constitutionality and Constitutionalism

The abrogation of Article 370: Questions of Constitutionality and Constitutionalism

Author: Mr. Parth Thummar, Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur

Introduction:

Through 3 legal documents (1) Presidential order withdrawing special status of Jammu and Kashmir (J&K) (2) Presidential order abrogating Article 370 and (3) Passing of an act by Parliament which carved out two union territories from the state of J&K (‘Jammu & Kashmir’ and ‘Ladakh’) changed the destiny of J&K in the month of August 2019 and it resulted in clampdown on civic liberties of citizens and many political leaders were put under house arrest. Many petitions have been filed in SC challenging this move of Union government. 

Was Article 370 a temporary provision?

On 26^th October 1947, the Maharaja Hari Singh signed the instrument of accession to protect J&K from Pakistani riders (who were tribesmen) who had invaded J&K, but this instrument stipulated that Parliament of India will have legislative power only to legislate on three subjects of defense, external affairs and communication with respect to J&K. Earlier in Junagadh where the majority of the population was Hindu and ruler was Muslim, the position of India was that Nawab couldn’t join Pakistan against the wishes of people and hence plebiscite was held. Having adopted such a stance earlier India couldn’t adopt any different position with respect to J&K where a majority of the population was Muslim with the Hindu king. Hence this accession was consented by Lord Mountbatten on a condition that when normalcy returns in the state, a plebiscite will be held. Indian constitution was being drafted when the J&K problem was still persistent. Hence some temporary provisions in the constitution were put to keep India’s commitment that it will not do anything against the wishes of people of J&K. B. N. Rau had who advisor to the constituent assembly had mooted the idea of temporary provision and its final draft was prepared by GopalaswamiAyyangar.

With this temporary provision, only Articles 1 and 370 were applicable to J&K. If parliament wanted to make any part of the Indian constitution dealing with matters other than specified in Instrument of Accession namely defense, external affairs, and communications apply to J&K, then it was required to obtain “concurrence” of the “government” of J&K. Article 370(3) provided the way to amend and repeal any provision of Article 370, and it could be done by President only with the consent of Constituent assembly.

J&K Constituent Assembly was formed on 1^st May 1951. J&K constitution was enacted in 1956 and on 26 January 1957 J&K Constituent Assembly was dissolved permanently. J&K Constituent Assembly was mandated to decide the fate of Article 370 but before its dissolution, it didn’t make any recommendation for repealing or modification of Article 370. Hence unless a new Constituent Assembly was convened, Article 370(3) president was prevented from make any changes in Article 370.

What is the position of SC on Article 370 over the years?

In Prem Nath Kaul v. State of J&K (AIR 1959 SC 749) SC held explicitly what was implicitly seen from the Constituent Assembly debates that “the constitution-makers attached great importance to the final decision of the constituent assembly” and President could exercise its power under Article 370 if Constituent Assembly of J&K had given its approval to him to do so. In Sampat Prakash v. State of J&K (AIR 1970 SC 1118) petitioner argued that Article 370 had ceased to be operative once the Constituent Assembly was dissolved. But the court held that formation of Constitution of J&K didn’t automatically make Article 370 inoperative and the only way Article 370 can cease to operate is by way of presidential order under Article 370(3) on the recommendation of Constituent Assembly of J&K.

In a recent judgment of State Bank of India v. Santosh Gupta ((2017) 2 SCC 538) SC has reiterated the same position but it also held that the Constitution of J&K was subordinate to the Constitution of India.

Is abrogation constitutionally valid?

By virtue of the presidential order of 1954, Article 356 is applicable to the state of J&K. The President of India had issued a Proclamation under Article 356 on 19^th December 2018 after political instability in the state, by vesting to himself all the functions of the Government of J&K. It also stated that all the powers of the legislature of J&K will be exercised by the Parliament. Important clarification that it carried was, any reference in the Constitution to the “Governor” or “Legislature” of J&K was to be taken to mean a reference to the President and Parliament respectively.

3 changes that are mentioned in the introduction part happened thereafter in quick succession changing the constitutional status of J&K.

On 5^th August 2019 in Constitution (Application to Jammu and Kashmir) Order, 2019 issued by Parliament Article 376 of the Constitution was amended to replace any reference to the word “Constituent Assembly” in the Article 370(3) with “Legislative Assembly”. As President’s rule was already imposed in J&K, Parliament was acting as the “Legislative Assembly” of J&K. And this essentially empowered Parliament to amend or repeal Article 370. This is a clear case of clever drafting. Now its for the Supreme Court to decide the constitutional validity of the Abrogation as legal scholars are equally divided on this issue. 

Questions of Constitutionalism:

Constitutionalism is the spirit of the Constitution. It’s the unwritten article protecting all the articles of Constitution from any vice be it in the legislature, executive or judiciary. It is said that almost all the countries in the world now have Constitutions but many lack the idea of Constitutionalism. India is a union of states, which means states are equal state holders in democracy. A move by the central government which relegates states to a position which makes state government mere spectator in the constitutional process may seem constitutional through the letters of Constitution but it may raise questions of Constitutional propriety. Constitutionalism prevents constitutional fraud and replacing the “Constituent Assembly” for “Legislative Assembly” is nothing less than fraud on constitution. This not only stripes the power of the state but also makes people of state voiceless.

Conclusion:

After independence Indian leaders had gone to the extent to suggest that a plebiscite would be held wherein the people of Kashmir would be given the right to decide whether they want to stay with India or join Pakistan, in short, they were at liberty to even secede from the Union of India. The need to hold a plebiscite was obviated.In 1956, when the Constituent Assembly of J&K enacted a Constitution which said that the state would be an integral part of India. India has tried to solve the issue of J&K with political maneuvering and diplomacy using legal tools but what India needs to understand is the problem of J&K is not just political or legal but its more than that. People of J&K were given hope for their future at the time of independence by a promise to place the fate of J&K in their hands. They were given hope that they will be listened to when it comes to issues pertaining to them. But none of that sort happened. What could not be done for years needs to be done at the earliest and that’s holding a plebiscite. People of J&K loves India and they are Indian in all sense and plebiscite will just validate that fact. What J&K wants is to hear. And India needs to decide whether it wants “the Land of J&K” or “the people of J&K”