On 5th of August 2019, India has completed its full integration with Jammu and Kashmir region which was long overdue since its conditional merger with the Union of India. The dream of Dr. S P Mookerjee, who had laid down his life on the path of complete unification of India turns into a reality. The debate over the nature of Instrument of Accession, Article 370 & special status to J&K that it cannot be altered by any means or what would be the method to abrogate it came to an end on the part of the executive and legislature. Now the matter is left for the judiciary to decide upon the constitutionality of this method adopted by the Government, provided that the same is challenged before the Courts.
Therefore, this article attempts to appreciate the legislative history behind these controversial provisions and whether the method adopted by the Government to supersede the earlier Constitutional Order, 1954 (hereinafter referred as C.O. 48) with the new Constitution Order, 2019 (C.O. 272) dated 05.08.2019 & C.O. 273 dated 06.08.2019 is a valid exercise or not. The paper also finds an answer to the question Whether substitution of the Article 370 and bifurcation of the state is legitimate or not?
In its preface of the recent copy of the Constitution dated 31st July, 2018 it has been clarified that “the Constitution applies to the State of Jammu and Kashmir with certain exceptions and modifications as provide in Article 370 and the Constitution (Application to Jammu and Kashmir) Order, 1954. This has been included in Appendix I for facility of reference and Appendix II contains re-statement of the exceptions and modifications”. It is also an interesting fact that the bare acts and constitutional books available in Indian market usually don’t mention C.O. 48, Article 35A & other special modifications to the constitution of India with respect to Jammu and Kashmir and hence majority of the population is completely unaware of its particularity.
The source of Article 35A and other major modification of the Constitution of India with respect to J&K are in ‘The Constitution (Application to Jammu and Kashmir) Order, 1954’ (C.O. 48). The C.O. 48 has been issued in exercise of the powers conferred by the clause (1) of Article 370 of the Constitution, wherein the President, with the concurrence of the Government of the State of Jammu and Kashmir made this Order. It has been also subsequently modified with new additions in the C.O. 48 till the year 1988 through the same route. The present Constitution Order, 2019 (C.O. 272) has also been issued under the same power enshrined under Article 370 itself. If the power exercised by the then Congress Government under Article 370 (1) was valid then what is so special today which makes it unconstitutional in the year 2019. Merely because the power has been exercised to make assimilation of J&K with rest of India more homogenous doesn’t make it unconstitutional. Now, let us delve into the constitutional law and legal positions to negate the argument that this exercise of the government is unconstitutional.
Effectively Article 370 provides competence and restrictions to the Union legislature to make laws with respect to the State of J&K, applicability of certain provisions of the Constitution to J&K and also if any amendment made in the Constitution then it’s extension over the State of J&K. It is provided that this can only be done by a ‘Presidential Order’ under Article 370 (1)(b)(ii) and under Article 370 (1)(d), if the subject matter of the law falls outside the ambit of matters enumerated in the Instrument of Accession.
It provides that the concurrence of the State Government is essential before issuing such ‘Presidential Order’ over any subject matters not specified in the Instrument of Accession. Readers here may pause & read Article 370 of the Constitution which provides about this ‘Temporary Provisions’ with respect to the State of Jammu and Kashmir for better clarity.
Amending power of the President under Article 370 with respect to State of J&K:
The Instrument of Accession was signed by the Ruler of J&K on 26th October 1947 and the same was accepted by the Governor-General of India on 27th October 1947. Under this instrument only three subjects- external affairs, defense and communications – were surrendered by the State to the Dominion. (Instrument of Accession annexed) (Indian Constitutional Law, MP Jain, 6th Edition, Pg. 1119)
Due to these special features not all the provisions of the Constitution of India apply to the State; some of the provisions apply, some do not apply, while others apply in a modified form. Over the time more and more provisions of the Constitution have been applied to it by way of this instrument of Presidential Order. Such Presidential Order doesn’t require any mandate from the Parliament. It requires the Concurrence or Consultation with the State Government and the satisfaction of the President before issuing such order to respect the spirit of the Instrument of Accession.
An amendment made to the constitution does not automatically apply to the State of J&K. It can apply only with the concurrence/consultation of the State Government, and when the President issues an order under Article 370. (Indian Constitutional Law, MP Jain, 6th Edition, Page 1121)
Article 370 is a special provision for amending the Constitution in its application to the State of J&K. Article 368 does not curtail the power of the President under Article 370. Even a radical alteration can be made in a constitutional provision in its Application to the State. The Hon’ble Supreme Court has refused to interpret the word ‘modification’ as used in Article 370 (1) in any “narrow or pedantic sense”. (Indian Constitutional Law, MP Jain, 6th Edition, Pg. 1121)
A 5 Judges bench of the Hon’ble Supreme Court has observed on this point in Puranlal Lakhanpal v. President of India, AIR 1961 SC 1519;
“Para 4: ……… There is no reason to limit the word “modifications” as used in Article 370(1) only to such modifications as do not make any “radical transformation”. We are therefore of opinion that the President had the power to make the modification which he did in Article 81 of the Constitution.”
The above ratio has been again reiterated by another 5 Judges bench of the Hon’ble Supreme Court in Para 15 of Sampat Prakash v. State of J&K, AIR 1970 SC 1118.
Article 370 (1) (d) lays down that other provisions of the Constitution can be applied to the State with or without modifications by Order of the President. Such an Order is not to be issued by the President-
- Without consulting the State Government if matters to be specified in the Order relate to those mentioned in the Instrument of Accession;
- Without the concurrence of the State Government if the matters to be specified in the Order relate to matters other than those mentioned in the Instrument.
Article 35 A:
It is hereby interesting to mention that the provisions stipulated under Article 370 only envisages for the application of the already existing Articles/provisions of the Constitution with or without exception or modification in the State of J&K. It nowhere provides that a new/de-novo Article can be inserted in the Constitution.
By the C.O. 48 issued under Article 370 (1) of the Constitution, with concurrence of the State Government, the insertion of the Article 35A in the Constitution is extraordinary and unique. This is an only exception whereby the C.O. 48 inserted a new provision to the Constitution and specifically uses the word ‘new article’ in the Constitution Order, 1954. This is the main reason behind some people calling it as a ‘Constitutional Fraud’ committed by the erstwhile Congress Government.
The C.O 48 in its Para 4(j) provides that after Article 35, the following new article, Article 35A shall be added.
Effect of Article 35A: This inserted provision in the Constitution gives immunity to any state legislation passed which provides any special rights to the permanent resident of the State even if it is inconsistent with the fundamental rights of other citizens of India. [eg. under Article 15(1), 16(1), 19(1)(e) –(f) etc.]
The permanent residents are such persons as are declared to be so by an existing law of the State or by any future law enacted by the Legislature of the State. And any such law may either confer special rights or privileges or imposes restrictions upon the permanent residents with respect to any or all of the following manner:
- Employment under the State Government.
- Acquisition of the immovable property in the State.
- Settlement in the State.
- Right to scholarship and such other forms of aid as the State Government may provide. (Constitution of India, D DBasu, 8th Edition, Volume III, Page No. 4011)
It has been argued for decades that because of this limitation under Article 35A, J&K is suffering from economic stagnation and it keeps the citizen of one country in two different Silos and distinguished from each other.
Supersession of the C.O. 48 by the Presidential Order under Article 370 (1)(d) is a valid exercise within the Constitution:
As already discussed in the above two cited case laws in Puranlal Lakhanpal and Sampat Prakash; any alteration by way of such Presidential Order under Article 370 (1)(d) will be permissible and if the alteration has been made within the Union List or Concurrent list corresponding with the matters enumerated in the Instrument of Accession then only Consultation of the State Government will be required. Defense and Foreign Affairs is certain heads under which such Order may be notified only after consultation with the State Government.
However, as the C.O. 48 has been notified after the concurrence of the State Government hence the exercise of issuing Constitutional Order 2019 under the Article 370 (1) by the President after concurrence of the State Government to supersede C.O. 48 is a valid exercise. This is again supported by the resolution of the Parliament to this aspect. The concurrence obtained by the Governor of the State in the present case is a valid concurrence and consent of the State Government as per the Constitution of the J&K and as per the ratio decided by the Hon’ble Supreme Court in this aspect.
A 5 Judges bench of the Hon’ble Supreme Court of India in Mohd. Maqbool Damnoo v. State of J&K, (1972) 1 SCC 536; has held that Governor is equally and similarly entitled to give concurrence on behalf of the State of J&K as of ‘Sadar-i-Riyasat’ for the purpose of amendment under Article 370 (1) of the Constitution.
“Para 22. It seems to us that the essential feature of Article 370, sub-clauses 1 (b) and (d) is the necessity of concurrence of the State Government or the consultation of the State Government. What the State Government is at a particular time has to be determined in the context of the Constitution of Jammu and Kashmir…”
“Para 24. …We are concerned with the situation where the explanation ceased to operate. It had ceased to operate because there is no longer any Sadar-i-Riyasat of Jammu and Kashmir. ….. If this meaning is given, it is quite clear that the Governor is competent to give the concurrence stipulated in Article 370 and perform other functions laid down by the Jammu and Kashmir Constitution.
“Para 25. …By virtue of this Act, if the Governor is the successor to the Sadar-i-Riyasat, he would be entitled to exercise all the powers of the Sadar-i-Riyasat. There is no doubt that he is the successor.
“Para 26. It is true that the Governor is not elected as was the Sadar-i-Riyasat, but the mode of appointment would not make him any the less a successor to the Sadar-i-Riyasat. Both are heads of the State.
Thereafter, concluding in Para 28 and 30 the Hon’ble Supreme Court has refused to entertain such contention that there has been any amendment of Article 370(1) by the backdoor and hold that the Amending Act was validly assented to by the Governor.
One may argue that the Governor should not give such concurrence without the aid and advice of the Council of Minister and in the absence of the legislative assembly. But, these arguments are not sustainable in the light of the provisions stipulated in the Constitution of Jammu and Kashmir. Section 26 to 28 of the Constitution of J&K clarifies it and makes ‘Sader-i-Riyasat’ (now Governor) as head of the state and there is no such stipulation fettering to the power of the head of the state. There is a reason why we have Governor’s rule in J&K whereas, President’s rule in rest of the states of India during the absence of assembly.
The Governor of Jammu and Kashmir holds absolute power as a head of state in the absence of the legislature and Council of Ministers and competent to give such concurrence to the President of India to meet any exigencies as a Government of the Jammu & Kashmir. Henceforth, the concurrence given is within the ambit of Constitution of India and J&K both.
After notification of the Constitution Order, 2019 now entire provision of the Constitution of India is equally applicable to the state of Jammu and Kashmir without any modifications as stipulated under the earlier superseded C.O. 48.
Substitution of Article 370:
Thereafter, on 6th August 2019 when Parliament has passed the resolution assuming the capacity of Constituent Assembly of the State, President of India under old Article 370 (3) read with Article 370 (1) declared by C.O. 273 that all clauses of old Article 370 shall cease to be operative and substituted it with new Article 370 which makes entire Constitution applicable to J&K without any modification notwithstanding any contrary provisions anywhere.
Before issuing such declaration under old Article 370 (3) the only necessity was the recommendation of the Constituent Assembly of the State shall be necessary before the President issues such a notification. Which is not in existence. Now, in the absence of Constituent Assembly of the State, Parliament has duly exercised its power as a successor of it and makes an end to this temporary provision.
But before scrapping old Article 370, the Government has scrapped the mess created by the old Article 370 in the form of C.O. 48 which also includes Article 35A. As the C.O. 48 superseded, the limitation on the power of Parliament to reorganize the state of Jammu & Kashmir under modified Article 3 also extinguished, hence Parliament became entitled to reorganize the state of J&K and hence the bill was validly introduced and passed in the Parliament. And since now the region is becoming Union Territory hence obviously the Parliament became the legislature of the both UTs in the absence of the legislature and hence equally competent to pass such recommendation in capacity of Constituent Assembly, which is not in existence for decades.
Therefore, in the light of the above said discussion C.O. 48 has been validly repealed by way of issuing such superseding Constitutional Order under Article 370 (1) (d) of the Constitution of India after concurrence of the State Government (i.e. Governor in the absence of the state assembly) as the subject matter falls outside the ambit of Instrument of Accession. Similarly C.O. 273 has been validly declared by the President to repeal old Article 370. There is nothing unconstitutional about it and any challenge to this in the Court is bound to fail.
In any case, the decision of both the governments is in favor of the entire State of J&K and India. It may lead us to a favorable outcome in terms of peace and development in the state free from the vice of the terrorism and separatism. The state has already organized its polity with the older system containing Article 35 A and other modified form of Constitution as per C.O. 48 for last 72 years which has only resulted in grief, lack of development, terrorism and separatism. So, there is nothing wrong on the part of both the governments to try a new political system which is successfully going through rest of the country for last seven decades.
(The Author is Research Associate at SPMRF and practicing Advocate at Supreme Court)