Long Read: The Full Briefing On How Modi, Shah Got Everything Right To ‘Fix’ Article 370

Long Read: The Full Briefing On How Modi, Shah Got Everything Right To ‘Fix’ Article 370The ‘Master-Minds’: Arun Jaitley, Amit Shah and Prime Minister Narendra Modi. 
  • Can Article 370 be struck off by a Presidential Order is the raging question today.

    However, the 5 August move by the government gives finality to the dream of “One India” that every patriotic Indian has dreamt of since the enactment of the Constitution.

5 August 2019 is now marked in India’s calendar as a red-letter day. This day saw the government of the day take a bold step towards taking the state of Jammu and Kashmir out of troubled waters.

Home Minister Amit Shah began by moving a resolution in Rajya Sabha to bring about certain changes in Article 367, and thereafter introducing a bill for reorganising Jammu and Kashmir into two separate Union Territories (UT) — the UT of Ladakh without a state legislature and that of Jammu and Kashmir, with a state legislature.

The entire exercise, which was carried out by the government with unprecedented support from allies and most opposition parties, was undoubtedly one of the most complex yet well-managed legal exercises in independent India.

This obviously gave rise to a lot of opposition from several quarters — people who were routinely benefitting from the erstwhile status quo that saw Kashmir Valley in tatters over the years.

Questions such as “how could Art 370 be scrapped with a Presidential Order?” or “can such a step be taken without the permission of the Supreme Court of India?” or even “is this exercise valid even though it has been carried out when the state legislature is absent?” have been raised amongst others.

While some of these questions come from a place of intentional malice, others arise out of genuine ignorance, and this article is an attempt to shed some light on the latter.

The Text Of Article 370

To arrive at the crux of what happened on 5 August, it is essential to first reproduce the text of Article 370 as it stands. Article 370 says:

370. Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything contained in this Constitution —

(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said state shall be limited to—

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation: For the purpose of this article, the government of the state means the person for the time being recognised by the President on the recommendation of the legislative assembly of the state as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the council of ministers of the state for the time being in office.

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

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.

An Analysis Of Article 370

A thorough reading of this article will reveal that it carves out a special status for the state of Jammu and Kashmir. The operative portion for making any degree of change to the said article is Clause (3) of the article which permits the President to do away with the article or make any exceptions or modifications in it by way of a notification provided that the recommendation of the Constituent Assembly of the state is sought before such a notification is issued.

The biggest challenge thrown by the opposition at today’s Presidential Order, is that the recommendation of the Constituent Assembly of the state, as required under the abovementioned clause, was not taken.

This is, of course, an impossibility because the Constituent Assembly of the state was dissolved on 25 January 1957. The question then arose whether, in the absence of such a Constituent Assembly, Article 370, which was quite obviously intentioned to be temporary in nature, would be fated to last indefinitely.

The current government of India has overcome the said hurdle with sheer creative genius and absolute constitutional compatibility.

It must be understood that Article 370 was introduced into the Constitution of India as a statement of political will and not legal progression. Article 370 (1) confers upon the President, the power to extend certain provisions of the Constitution of India, to the state of Jammu and Kashmir, as may be required from time to time. With the power derived from this provision, a Presidential Order was issued in 1954 which extended certain provisions of the Constitution of India to the state of Jammu and Kashmir.

This order also introduced Article 35A, a special class of citizens who were referred to as ‘permanent residents’ of the state of Jammu and Kashmir, and conferred upon them special rights with respect to employment with the state government, acquisition of immovable property, settlement in the state or availing of scholarships or any other form of aid from the state government among other things.

The article also provided that such laws could not be challenged on the ground that they were discriminatory towards other citizens of the Union of India. It also gave the state legislature the right to define who would qualify as a permanent resident, their rights and restrictions.

The government of India introduced a Presidential Order in Parliament now known as ‘The Constitution (Application to Jammu & Kashmir) Order 2019’ to supersede the previous Presidential Order of 1954, to the extent mentioned in the current order, exercising the power conferred under Article 370.

The current order makes the entire Constitution of India applicable to the state of Jammu and Kashmir. The order effectively renders nugatory, the special status that had been granted to J&K vide Article 370 by stating that all the provisions of the Indian Constitution, as also its amendments, shall now apply to the state of Jammu and Kashmir.

The New Presidential Order, 2019

The current order, very attentively, makes certain amendments to Article 367 of the Constitution of India, which deals with ’Interpretation‘ and makes two effective changes to it, which will be applicable to the state of Jammu and Kashmir, apart from the ones mentioned above. The new clause states that:

1) any reference in the Constitution to the Government of Jammu and Kashmir shall be construed as a reference to the Governor of Jammu and Kashmir.

2) The words ‘Constituent Assembly of the State’ in Clause (3) of Article 370 quoted above, will now read as ‘Legislative Assembly of the State’.

Apart from resolving the issue of the absence of the original Constituent Assembly of J&K for all future purposes, that had left the state in a limbo all these years, this amendment has also served the purpose of providing legal corroboration to the steps taken on this red-letter day.

As is already known, the state of Jammu and Kashmir has been under President’s Rule since December 2018. Given the current circumstances, it was obligatory upon the government to exercise the powers conferred upon it under Article 356(1)(b).

Article 356 enumerates provisions applicable in the event of failure of constitutional machinery in a state. It declares that the powers of the state legislature in such an event shall be exercisable by the Parliament. Thus, in order to comply with the letter of the law, what was required was a Presidential Order and a subsequent ratification of the same by Parliament acting in its authority as the state legislature of Jammu and Kashmir.

Once these requirements are fulfilled, there remains no scope for challenge. This explains how the current exercise could have been carried out by way of a Presidential Order, and why the same is legally permissible in the absence of the state legislature.

It must be duly noted that it has been erroneously contended by many legal scholars opposing the government’s move, that Article 370 has been amended by way of a Presidential Order. It is important to emphasise that, that is not the case at all. Article 370 has neither been modified nor repealed. What has been done is that a Presidential Order issued under Article 370 in the year 1954 has now been superseded and replaced by another Presidential Order of 2019.

The Role Of The Supreme Court Of India

Another question that has been raised by many is the role of the Supreme Court of India in the entire process, and whether the government has overstepped its limit by taking the current steps without seeking the permission of the court.

The Supreme Court of India had the opportunity to deliberate upon this question when an appeal against a dismissal order of the Delhi High Court was preferred before it by one Kumari Vijaylakshmi Jha last year praying for a declaration that Article 370 was temporary in nature.

While hearing the said plea, and another batch of matters challenging the special status carved out for permanent residents of the state of J&K under Article 35A, the court observed that Article 370 was permanent in nature.

The court quoted its own judgment delivered in December 2016 in the case of “State Bank of India Vs Santosh Gupta and Anr” in which it had held that despite its headnote, Article 370 was in fact permanent because unlike some other articles in the Constitution that were in effect for specific periods of time mentioned therein, Article 370 did not specify any time limit, so a simple reference to it as a ‘temporary provision’ was insufficient.

The judgement also referred to previous judgements delivered by the court in the cases of “Sampat Prakash Vs the State of Jammu & Kashmir (1969) 2SCR 365” and “Puranlal Lakhanpal Vs President of India (1962) 1 SCR 688”, to highlight the limited extent to which the unamended Article 370 permitted the President to modify it, as also the specific procedure for such modification which required the recommendation of the Constituent Assembly.

The correctness of these observations of the court, however, is not required to be elaborated upon anymore after the Presidential Order notified today.

This is because a judgement delivered by the court is only applicable in the legal backdrop that exists on the day of such delivery of judgement.

The government, however, is perfectly within its rights, to address and do away with the error pointed out by the court, thus taking away the basis of the judgement delivered and rendering it inapplicable for future purposes.

In this case, the government, by the changes introduced in the present order, did just that. Having followed the said procedure, the government did not require the permission of the Supreme Court to take any of the steps taken on 5 August, as has been contended by many.

Another judgement of the Supreme Court that adds considerable weight to the measures taken by the government today, and thus deserves to be highlighted to thwart any arguments that may arise on this front, is the judgement in the case of “Mohd. Maqbool Damnoo Vs State of Jammu and Kashmir (AIR 1972 SC 963)”.

In this case, a constitution bench of the court decided whether the governor of Jammu and Kashmir is a competent substitute for the legislative assembly. A writ petition was filed before the Supreme Court under Article 32 challenging the validity of the Preventive Detention (Amendment) Act 1967 on the basis that it was not assented to by the Sadar-i-Riyasat who alone was mentioned as head of the state in the Explanation to Article 370(1).

The court held in no uncertain terms that the Amendment Act under challenge was completely valid even though it was assented to by the Governor. In this judgement, the court discusses and elaborates upon the powers of the Governor of J&K and holds his consent to be at par with that of the assembly.

The above discussion makes it amply clear that the historic measures taken by the government of India are in complete obedience of the law, and have been analysed with immense responsibility and precision before being brought into force.

Effect Of The Changes Introduced

What now remains to be seen is the effect that these changes will have upon the rights of Indian citizens as far as the territorial area of J&K is concerned.

It is pertinent to mention that Article 35A was not the only legal impediment in the paths of those wishing to relocate to or otherwise own and acquire land in the state (now Union Territory) of J&K.

There are several local enactments that protect the rights of local residents and thus restrict the access of others to the land in the area. Examples of some local laws preventing outsiders from acquiring land are — S.4 of the J&K Alienation of Land Act, S.20 of the Big Landed Estates Abolition Act, S.4 of the Land Grants Act, S.95 of the J&K Cooperative Societies Act 1960, S.17 of the Jammu and Kashmir Agrarian Reforms Act 1976 among others.

Apart from local laws affecting the right to own property, S.12(b) of the J&K Representation of the People Act disqualifies non-residents from registering themselves as voters in the electoral roll.

A non-resident is also disqualified from holding any government job in the state. These local enactments cannot be wished away only due to the Presidential Order that has been issued today.

The order, however, takes away the constitutional protection that was afforded to these local enactments all this while.

In the absence of such protection, as also, upon the application of the entire Constitution of India to Jammu and Kashmir, these laws can immediately be either repealed by Parliament, or challenged before the court as being violative of articles 14 and 19 of the Constitution of India.

The momentous steps taken by Parliament on 5 August, have thus given finality to the dream of “One India” that every patriotic Indian has dreamt of since the enactment of the Constitution in 1949.

Aankhi Ghosh is Advocate, Supreme Court of India and Delhi High Court.


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