At the heart of everything is The Constitution (Application to Jammu and Kashmir) Order 2019 (C.O. 272), which constitutes the basis for everything that follows. The second is a Statutory Resolution introduced in the Rajya Sabha, which – invoking the authority that flows from the effects of Presidential Order C.O. 272 – recommends that the President abrogate (much of) Article 370 i. e the Constitution (Application to Jammu and Kashmir) Order 2019 (C.O. 273) and the third is the Jammu and Kashmir Reorganization Bill, 2019, that breaks up the State of Jammu & Kashmir into the Union Territories of Ladakh (without a legislature) and Jammu and Kashmir (with a legislature).

To understand the legal issues, we need to begin with the language of unamended Article 370 of Constitution of India. Article 370 of Constitution of India, limited the application of the provisions of the Constitution of India to the State of Jammu & Kashmir. Under Article 370 (1)(d) of Constitution of India, constitutional provisions could be applied to the State of Jammu & Kashmir from time to time, as modified by the President of India through a Presidential Order, and upon the concurrence of the State Government (this was the basis for the controversial Article 35-A of Constitution of India, for example).

Perhaps the most important Part of 370 of Constitution of India, however, was the proviso to clause 3. Clause 3 itself authorised the President of India to pass an order removing or modifying parts of Article 370 of Constitution of India.

The proviso stated that: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification. In other words, therefore, for Article 370 itself to be amended, the recommendation of the Constituent Assembly of J&K was required. Now, the Constituent Assembly of J&K ceased functioning in 1957.
This has led to a long-standing debate about whether Article 370 of Constitution of India has effectively become permanent (because there is no Constituent Assembly to give consent to its amendment), whether it would require a revival of a J&K Constituent Assembly to amend it, or whether it can be amended through the normal amending procedure under the Constitution of India.

The Constitution (Application to Jammu and Kashmir) Order 2019, however, takes an entirely different path. C.O. 272 uses the power of the President of India under Article 370 (1) of Constitution of India to amend Article 370 (3), via a third constitutional provision: Article 367 of Constitution of India. Article 367 of Constitution of India provides various guidelines about how the Constitution of India may be interpreted. Now, The Constitution (Application to Jammu and Kashmir) Order 2019 adds to Article 367 of Constitution of India an additional clause, which has four sub-clauses. Sub-clause 4 stipulates that “in proviso to clause (3) of Article 370 of Constitution of India, the expression Constituent Assembly of the State referred to in clause (2)” shall read “legislative Assembly of the State.”

Article 370 (1) of Constitution of India allows the President of India – with the concurrence of the Government of J&K to amend or modify various provisions of the Constitution in relation to J&K.

The Constitution (Application to Jammu and Kashmir) Order 2019, therefore, uses the power under 370 (1) of Constitution of India to amend a provision of the Constitution of Constitution of India (Article 367) which, in turn, amends Article 370 (3) of Constitution of India, and takes out the Constituent Assemblys concurrence for any further amendments to Article 370 of Constitution of India. And this, in turn, becomes the trigger for the statutory resolution, that recommends to the President of India the removal of (most of) Article 370 of Constitution of India (as the Constituent Assemblys concurrence is no longer required).

Article 370 (3) of Constitution of India provides President of India has the powers to amend or repeal the Article by issuing a notification, based on a recommendation of Constituent Assembly of Jammu & Kashmir. President of India signed the Constitution (Application to Jammu & Kashmir) Order, 2019 on August 5, 2019, regarding Article 370 (1), under which all the provision under Article 4 would be applicable to J&K. J&K Constituent Assembly would be read as J&K Legislative Assembly. Similar changes to Article 370 have been done in the past as well. Now since Presidents Rule is in force in the State, implementation of Article 370 has ceased to exist as the President of India issued the notification in this regard, after this House passed the resolution.

After issuing August 05, 2019 orders all orders or amendments issued under the same clause in 1954 stand revoked. In the Constitution (Application to Jammu and Kashmir) Order, 1954 the then Congress Government had taken recourse to the same clause and had brought in Article 35-A. In terms of legalities, the President of India signed Constitution (Application to Jammu & Kashmir) Order, 2019 on the morning of August 05, 2019, now called Constitutional Order 272. Both Houses of the Parliament have approved through a majority vote the revocation of Article 370 of the Constitution. In another bill which also stands passed by both the Houses, J&K has been bifurcated into two Union Territories, one of Ladakh and the other of Jammu & Kashmir.

Notably, Government has also amended Article 367 of Constitution of India and added Clause (iv) to it which now includes Jammu & Kashmir in General Category along with other States. Earlier, it was not included in the category of States referred to as the said States in this Article. But now it is also a part of the said States. Jammu & Kashmir is now like any other State when it comes to applying constitutional provisions. The power which was vested in Legislative Assembly of the State is now vested in the Governor (read Lt. Governor). Earlier the Assembly used to recommend to the Governor and the later used to recommend further to the President of India. But now like any other State, the Council of Ministers will give advice to the Lt. Governor. Constituent Assembly is now to be read as Legislative Assembly. Thus the compulsion to have Constituent Assembly to scrap Article 370 of Constitution of India is not required.

The special status of Jammu & Kashmir was accommodated in the Indian Polity by the incorporation of Article 370 to the Constitution of India and the Presidential Orders that ensued. These Presidential Orders, passed under clause 1 (d) of Article 370, not only extended provision of the Constitution of India to the State of Jammu & Kashmir but also modified their applicability to suit its special needs and peculiar circumstances. Since the passing of the Constitution (Application to Jammu and Kashmir) Order, 1954, the pith and substance of Article 370 has been brought before the Supreme Court time and again to interpret its nature, character and applicability.

The matters started coming to the Honble Supreme Court of India as early as 1955, when in Puranlal Lakhanpal Vs. President of India & Ors, 1961 AIR 1519; 1962 SCR (1) 688, wherein, the Courts writ jurisdiction was invoked to interpret the word modification in Article 370 (1)(d). The Apex Court interpreted the aforesaid term in a wider sense and said that the word modification would also include Presidents power to amend a constitutional provision in its application to Jammu & Kashmir.

The apex court had opined that:
The power to make exceptions implies that President of India can provide that a particular provision of the Constitution would not apply to the State… It seems to us that when the Constitution used the word modification in Article 370 (1), the intention was that the President of India would have the power to amend the provisions of the Constitution of India if he so thought fit in their application to the State of Jammu & Kashmir.
The Court added that modification would include the powers to make radical transformations.

In the context of the Constitution we must give the widest effect to the meaning of the word modification used in Art. 370 (1) and in that sense it includes an amendment. There is no reason to limit the word modifications as used in Art. 370 (1) only to such modifications as do not make any radical transformation, it observed.

The decision in Puranlal marked a beginning of what would later become a series of petitions filed before the Apex Court to challenge the constitutionality of the Jammu & Kashmir Preventive Detention Act, 1964. When Article 35 was made applicable to the State it was modified to include clause (c) which made it clear that the laws regarding preventive detention in J&K cannot be challenged for being in violation of the fundamental rights guaranteed under the Constitution of India. Both in P. L. Lakhanpal Vs. State of J&K, 1956 AIR 197; 1955 SCR (2) 1101 and Abdul Ghani Vs. State of J&K, 1971 AIR 1217; 1971 SCR (3) 275 Habeas Corpus Petitions were filed before the Supreme Court to challenge the detentions made under the said Act; citing them to be in contravention of Part III of the Constitution of India. In both the cases, the validity of the Act was upheld by using Presidents powers under Article 370 (1)(d) of Constitution of India as a justification. The Petitioners were rendered without a remedy even if the Act purported to violate their Right under Article 21 of Constitution of India.

The controversial Jammu & Kashmir Preventive Detention Act, 1964 was originally given a timeline of five years. However, its enforcement and validity was periodically extended for 15 and then 10 years by the Constitution (Application to Jammu & Kashmir) Second Amendment Order, 1959 (C.O. 59) and the Constitution (Application to Jammu and Kashmir) Amendment Order, 1964 (C.O. 69). When in Sampat Prakash Vs. State of J&K, 1969 AIR 1153; 1969 SCR (3) 574 (1970) this was challenged, the Apex Court denied relief to the Petitioner and opined that:

... The power to modify in clause 1 (d) of Article 370 also includes the power to subsequently vary, alter, add to or rescind such an order by reason of the applicability of the rule of interpretation laid down in Section 21 of General Clauses Act. If the Order of 1954 is not invalid on the ground of infringement or abridgement of fundamental rights under Part III, it is difficult to appreciate how extension of period of immunity made by subsequent amendments can be said to be invalid as constituting an infringement or abridgment of the provisions or part of it.

In Sampat Prakash, the Court also made a significant observation about the lifeline of Article 370 itself. It opined that the Article could only be removed only on the recommendation of the Constituent Assembly of the State. Since, the said Assembly made no such recommendation before it ceased to exist post 1957, it shows that it had no intention to ask for revocation of the said Article.

Article 370 (3) clearly envisages that the article will continue to be operative and can cease to be operative only if, on the recommendation of the Constituent Assembly of the State, the President makes a direction to that effect. In fact, no such recommendation was made by the Constituent Assembly of the State, nor was any Order made by the President declaring that the article shall cease to be operative. On the contrary, it appears that the Constituent Assembly of the State made a recommendation that the article should be operative with one modification to be incorporated in the Explanation to clause (1) of the Article. This makes it very clear that the Constituent Assembly of the State did not desire that this article should cease to be operative and, in fact, expressed its agreement to the continued operation of this article by making a recommendation that it should be operative with this modification only., observed the Honble Supreme Court in Sampath Prakash.

Despite the observations made in Sampat Prakash, the Supreme Court in Mohd Maqbool Damnoo Vs. State of J&K, 1972 AIR 963; 1972 SCR (2)1014 and then in SBI v. Santosh Gupta (2017) went to interpret the provision in such a way that it paved a way for possible inroads to modify the constitutional status of the State.

In Mohd Maqbool, the Honble Supreme Court upheld the validity of 1965 Presidential Order, which inserted clauses in Article 367 (4) to state that references to Sadar-I-Riyasat should be read as Governor and went on to opine that Governor is competent to give concurrence on behalf of the State Government which is stipulated in Article 370 and for other functions laid down in the Constitution of Jammu & Kashmir.

The Constitution Bench did not accept the argument of the Petitioner that it was an amendment by back door to Article 370. The Honble Supreme Court said that the explanation was necessary as Sadar-i-Riyasat for the State no longer existed and said that the modification merely reflected the existing Constitutional position. Therefore, there was no need for expressing any opinion of whether Article 370 could be amended by using Article 370 (3), the Honble Supreme Court said.

We are not concerned with the question whether Art. 370 (3) can now be utilised to amend the provisions of Art. 370 (1) and (2) and therefore we do not express any opinion on that point. We are now not concerned with an amendment of Art. 370 (1). 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, the bench said.

Further, the Supreme Court in Civil Appeal No. 12237-12238 of 2016 titled State Bank of India Vs Santosh Kumar Gupta & Anr., Vide its Judgment dated December 16, 2016 , while holding that SARFAESI Act was applicable to J&K, highlighted that the State has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India.

Art. 1 of the Constitution of India and Section 3 of the Jammu & Kashmir Constitution make it clear that India shall be a Union of States, and that the State of Jammu & Kashmir is and shall be an integral part of the Union of India, the apex court observed. The residents of Jammu & Kashmir are first and foremost citizens of India, added the Court.

The Bench comprising Honble Justice Kurian Joseph & Honble Justice R. F. Nariman held that after the Constitution (Application to Jammu and Kashmir) Order, 1954 and the other Orders following it, the Parliament did not need concurrence of the State Government to legislate in respect of matter contained in Union and Concurrent list in the Schedule Seven of the Constitution of India. All entries specified by Constitution (Application to Jammu and Kashmir) Order, 1954 contained in List I of the Seventh Schedule to the Constitution of India would clothe Parliament with exclusive jurisdiction to make laws in relation to the subject matters set out in those entries.

It has been argued that Parliamentary legislation would also need the concurrence of the State Government before it can apply to the State of Jammu & Kashmir under Art. 370. This is a complete misreading of Art. 370 which makes it clear that once a matter in either the Union List or the Concurrent List is specified by a Presidential Order, no further concurrence is needed., the Bench observed.

The present Government by virtue of the Constitution (Application to Jammu and Kashmir) Order, 2019 used the Presidential power under Article 370 (1)(d) to amend Article 367 and made the Constituent Assembly of the State of Jammu & Kashmir synonymous with the Legislative Assembly. Moreover, the concurrence for the same has not been sought from the elected Legislative Assembly but from the Governor of the State of Jammu & Kashmir. These interpretive changes to make the Governor synonymous with the State Government has been routed through Clause 1 (d) of Article 370 of Constitution of India.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu
Email: [email protected], [email protected]

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