Legal hurdles could derail Modi govt’s big Kashmir move

Home Minister Amit Shah’s statement pertaining to Kashmir on the morning of August 5 brought about this big change in the current status quo: Empowered under Article 370(1) of the Constitution, vide the Constitution (Application to Jammu and Kashmir) Order, 2019, the President of India superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 and amended Article 367 of the Constitution.

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The Jammu and Kashmir Reorganisation Bill, 2019 was also tabled by the Home Minister seeking to declare Ladakh as a Union Territory without legislature and Jammu & Kashmir as a Union Territory with legislature. The question is will these moves pass legal muster or be shot down when challenged in court?

The background

Article 370 is, in nature, of a ‘temporary provision’ with respect to J&K. It comes under Part XXI of the Constitution, which deals with "Temporary, Transitional and Special provisions" — granting J&K a special autonomous status. Unlike other similarly situated ‘special provisions’ for other states, Article 370 was intended to be temporary in nature. The 1954 Presidential Order restricted applicability of laws applicable to the territory of J&K without State’s permission and gave it proportionate representation in Parliament. This Order also inserted Article 35A in the Constitution which has remained a bone of contention for many years.

Since then there have been more than 45 Presidential Orders, extending different parts of the Constitution to the State, and making necessary amendments to the Constitution for its application to the state. The conjoint effect of Articles 370 and 35A and the 1954 Presidential Order is that the Centre needs the state government's concurrence to apply laws — except in defence, foreign affairs, finance and communications. These provisions also lay down that the state's residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. As a result, Indian citizens from other states cannot purchase land or property in J&K.

Legal issues

Under Article 370(1), which starts with a non-obstante clause (meaning that no other constitutional provision binds it), the President has been provided with a special power. The only condition is that it should be in ‘concurrence’ with ‘government’ of the State. The first issue arises here. There is no ‘government’ in the State and Presidential Rule has been imposed since June 2018. Can the Governor be kept on the same pedestal as an elected government is the first issue.

Secondly, on whose aid and advice can the Governor act in the absence of elected representatives? Thirdly, there is no sanction by the Governor till now with the Parliamentarians. If the sanction was taken from the Governor and notified, its validity could have been challenged and the next step of direct declaration could have been avoided.

The fourth issue is that Article 370 has itself been indirectly used to dilute itself. Article 370(3) provides that the President may declare Article 370 to be inoperative but only on the recommendation of the ‘Constituent Assembly’. In absence of an express declaration, the Constituent Assembly cannot be understood as the Legislative Assembly or the Parliament. On the other hand, the Constituent Assembly can never be reconvened in the absence of any law to that effect. Therefore, vide the instant Presidential Order, the President has also laid down that Constituent Assembly shall be deemed to mean Legislative Assembly of the State. Can a constitutional provision be amended without being tabled, discussed and debated is the other constitutional issue which arises?

This brings another question that whether a constitutional provision can be used to dilute itself? Furthermore, it is trite law that what cannot be done directly, cannot be done indirectly. So by amending Article 367 empowered under Article 370(1)(d), the Presidential Order dilutes Article 370 and negates Article 370(3). An answer to this may be that Article 370(3) is only one of the modes and not the only mode of doing away with Article 370 as a whole.

Lastly but not the least, Article 367 has been amended by a Presidential Order. Whether a constitutional provision (except those expressly permitted to be done so) can be amended by the President without a constitutional amendment bill being passed by both houses (except for a money bill) simply by way of a Presidential Order deserves to be answered.

These will be the questions which would arise before the Supreme Court once this Presidential Order is challenged.

Way forward

The Presidential Order does not repeal or revoke Article 370 by using Article 370(3). However, it makes Article 370 excessively weak and brings a monumental change in its strength. A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs The President of India discussed the President's powers under Article 370(1) to "modify" the Constitution. Though the Court observed that the President may modify an existing provision in the Constitution in consequence of the power under Article 370, the judgment is silent as to whether the President can, without the Parliament's knowledge, introduce a new Article or amend an Article which will dilute Article 370. The Order will be challenged soon and the interpretation given by the Supreme Court shall prevail finally. Till then, fingers crossed!

(Namit Saxena is Advocate, Supreme Court of India)

The views expressed above are the author’s own. They do not necessarily reflect the views of DH.