Four reasons why the Presidential Order on Kashmir is not kosher, yet

Jeet H Shroff | Updated on August 06, 2019

Home Minister Amit Shah   -  PTI

The President has in effect exceeded the confines of the power delegated to him under Article 370(1)(d). He cannot do so

On Monday the government sought to all but scrap Article 370 from the Constitution through Presidential Order. While the media popularly reported the Presidential Notification as having scrapped Article 370, this is not accurate.

First let us understand the legal provisions and history. Article 370 was included in the Indian Constitution as a temporary provision for J&K. Articles 370(1)(c) and 370(1)(d) (which are relevant) deal with the applicability of the Indian Constitution to J&K. Article 370(1)(c) states that Article 1 and Article 370 of the Constitution shall apply to J&K. Article 370(1)(d) states that other provisions of the Constitution can be made applicable to J&K with such “modifications as the President may by order specify”.

However Article 370(1)(d) requires that the President secure the concurrence of the J&K government before issuing such an order. Finally, Article 370(3) states that the President can issue a notification making the whole of Article 370 inoperative if such a recommendation is made to the President by the Constituent Assembly of J&K.

Article 370 was brought into being as a compromise. When Kashmir acceded to India, Kashmir was given the right to draft its own Constitution. All princely states were given this right but other states accepted the Indian Constitution as being applicable to themselves. Kashmir however constituted its own Constituent Assembly and reserved for itself the right to make its own laws on all but a few matters. Article 370 gives constitutional effect to this understanding.

However Article 370 was intended to be temporary until Kashmir’s Constitution was drafted and the Constituent Assembly of Kashmir has the power to recommend the abrogation of Article 370 to the President. The Constituent Assembly of Kashmir however dissolved itself in 1957 without making any recommendation for amendment or abrogation and for this reason, the Indian Supreme Court has ruled on multiple occasions that Article 370 is now a permanent part of the Indian Constitution since the only body that could have abrogated it has been dissolved without doing so.

This is the principal difficulty that the government has to overcome in order to successfully ‘scrap’ Article 370 in its entirety.

Let us now understand what the Indian government did on Monday.

First, the Presidential Order was issued. The Presidential Order uses Article 370(1)(d) to apply all provisions of the Indian Constitution (other than Articles 1 and 370 – which are already applicable) to J&K. The concurrence of J&K government is necessary to effect such a step but since J&K is presently under President’s rule and has no state government, this was effectively dispensed with.

Second, when applying provisions of the Indian Constitution to J&K, the President effected one ‘modification’— to Article 367. Article 367 is the interpretation clause of the Constitution. In Article 367, the Presidential Order inserts a new sub-clause (4)(d) which states that the words “Constituent Assembly” in Article 370(3) must be read as “Legislative Assembly of the State”. What does this mean? The government has sought to overcome the problem of the Constituent Assembly not having abrogated Article 370 by requiring that “Constituent Assembly” in Article 370(3) be read as the J&K Assembly.

By doing so, it now becomes possible for the J&K Assembly to do what the Constituent Assembly did not i.e. recommend the abrogation of Article 370. To be clear, the President has not amended Article 370(3) itself because he does not have the power to do so. He can only modify other provisions of the Constitution when making them applicable to J&K.

Third, applying this new interpretation of Article 370(3), the President could have abrogated Article 370 upon a recommendation to this effect being made by the J&K Assembly. But since J&K is now a Union Territory and is under President’s rule and has no legislative assembly at the moment, it fell upon Parliament to make this recommendation under the newly ‘modified’ Article 370(3). Accordingly, the recommendation to the President abrogate Article 370 was issued by the Home Minister through his Resolution.

Through these three steps, the government calculates that it has finally paved the way for scrapping of Article 370. Were alternatives available? Yes, but these would either have required the concurrence of J&K’s properly elected representatives or a two-third majority in Parliament to effect constitutional amendments. The government calculated it would not be able to achieve either. Hence this bit of jugglery.

The government’s action is, from a legal standpoint, clever. But is it perhaps a bit too clever? It appears so for four reasons.

First, the President does not have the power to modify Article 370 itself. But that is precisely what the Presidential order purports to do indirectly. Article 370 is already applicable to J&K under Article 370(1)(c). Under Article 370(1)(d) the President’s has the power to modify and apply other provisions of the Constitution to J&K i.e. provisions other than Article 370.

By modifying Article 367 (as it applies to J&K) and requiring that ‘Constituent Assembly’ in Article 370(3) be read as the J&K Assembly, the President has attempted to indirectly amend Article 370. Therefore the Indian Constitution as it is applicable to J&K today now has two provisions that say contradictory things. Article 370(3) says that the Constituent Assembly of J&K can recommend the abrogation of Article 370. Article 367(4)(d) says that Constituent Assembly must be read to mean J&K Assembly. Which provision prevails? This is where the government is likely to encounter problems:

The Presidential Order is tantamount to the President doing indirectly what he cannot do directly i.e. amending Article 370 through Article 367 because he has no power to amend Article 370 directly. This is problematic.

The President has exceeded the confines of the power delegated to him under Article 370(1)(d). He cannot do so. This was settled in the Keshavananda Bharati case which established the Basic Structure doctrine i.e. a constitutional functionary cannot use the powers given to him under the Constitution to do to the Constitution that which the Constitution never intended for him to do.

Multiple Supreme Court decisions have established that Article 370 is a permanent provision precisely because the Constituent Assembly of Kashmir dissolved itself without making such a recommendation.

The law recognises acts of omission (in this case, not recommending the abrogation of Article 370). That is to say that by dissolving itself without recommending abrogation, the Constituent Assembly of J&K made clear its intention to not abrogate Article 370.

Finally, principles of statutory interpretation require that the meaning of a provision must be derived from its own wording unless it is unclear. An interpretation clause cannot override the clear meaning of the actual provision i.e. Article 367(4)(d) cannot override Article 370(3).

Second, Article 370(1)(d) only empowers the President to modify existing provisions of the Constitution when they are made applicable to J&K. The Presidential Notification however adds a fresh provision to the Constitution in the form of Article 367(4). The President’s power to legislate provisions into the Constitution in this manner is suspect.

Third, the Presidential Order is also problematic because J&K is currently under President’s Rule. The requirement of obtaining the concurrence of the J&K Assembly was therefore dispensed with. Can a decision such as this one be taken by the President himself relying on the imposition of President’s Rule in a State? Is that a breach of India’s commitment to federalism? This is also up for debate.

Fourth, the Presidential Order may also run into trouble because (while the President may have modified Article 367(4)(d) as it is applicable to J&K) a similar amendment has not been made either to Article 367(4)(d) or Article 370(3) of the Indian Constitution itself by Parliament. The President’s power to modify the Indian Constitution under Article 370(1)(d) is only limited to J&K. The power to amend the Constitution vests exclusively with Parliament. Currently therefore, the Constitution as it is applicable to J&K contains Article 367(4)(d) which requires ‘Constituent Assembly’ in Article 370(3) to be read as the J&K Assembly but this is only applicable to J&K.

Absent is a Parliamentary amendment to this effect, even if the President intends to act on the recommendation of the J&K Assembly (issued through the Home Minister’s Resolution) he is bound by his oath of office to uphold the Indian Constitution as it stands today and the Constitution as it stands today (except in the case of J&K) does not contain either Article 367(4)(d) or an amended version of Article 370(3). The President’s power to act on the recommendation contained in the Home Minister’s Resolution is therefore suspect.

For these reasons, unless the President (and by extension, the government) is confident that the Supreme Court’s view will change when the Presidential order is challenged, a formal amendment to Article 367 or Article 370(3) would strengthen the President’s hand as and when he does issue a notification to abrogate Article 370. Voting for the J&K bifurcation bill suggests that the government will not find it hard to push through these constitutional amendments with a two-third majority in Parliament.

The abrogation of Article 370 was a historical promise. Prime Minister Nehru himself agreed that Article 370 would be rendered obsolete by the passage of time. The abrogation move may bolster the government’s ability to make the fruits of India’s economic progress directly available to Kashmir. Yet, the manner in which this has been done is unlikely to inspire trust in the ordinary Kashmir and may well cause lasting damage to the tradition of constitutional propriety.

The writer is a Mumbai-based lawyer involved in dispute resolution

Published on August 06, 2019

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