Revocation of Articles 370 and 35A

Revocation of Articles 370 and 35A

A Constitutional Perspective

Usman Butt

Rule of Law requires that Constitutional due process should be followed for every decision of the government. The term ‘Rule of Law’ has been derived from the French phrase ‘la principe de legalite’ (the principle of legality) which refers to a government based on principles of law, not of men. The entire basis of Administrative Law is the doctrine of the rule of law.  It also applies to the Indian government because constitutional supremacy and constitutional morality are the basic features of the Indian Constitution which has been made the supreme law of the country and other laws are required to be in conformity with it. It also means that any law which is found in violation of any provision of the Constitution, particularly, the fundamental rights, is void. In the backdrop of this very principle, Modi government’s decision to revoke Articles 370 and 35A needs to be declared void ab initio as it violates provisions of the Indian constitution.

Modi government finally dropped the big Kashmir bomb on August 05 with Indian parliament approving to revoke two key constitutional provisions — Article 370 and Article 35(A) — that give the state of Jammu & Kashmir a host of special rights. Article 370 granted special status and limited autonomy to Jammu and Kashmir since 1949, and Article 35A provided the state the authority to define “permanent residents” and grant special rights to permanent residents of J&K, including employment and acquisition of immovable property in the State. The J&K is now bifurcated into two states and has been brought under the control of New Delhi. While Prime Minister Narendra Modi has described the revocation as “unshackling of Kashmiris”, many legal experts are questioning the legal validity of this move. They assert that changing the requirement of concurrence of the “constituent” assembly to “legislative” assembly, and in the absence of the legislative assembly, using the governor as the proxy, was illegal. Since 1959, at least four times, the courts have said that Article 370 is permanent. The unilateral decision of scrapping the Articles is symptomatic of the authoritarian bent of the Modi government.

The Presidential Order dated 05th August 2019 is not restricted to Article 370(1) of the constitution; it is also related to Article 367 which deals with interpretation guidelines of constitution with reference of General Causes Act, subject to adaptation and modification made under Article 372. In short, besides the scope of Article 370(1), that of Articles 367 and 372 also needs to be examined.

Article 370

Article 370 has three sub-clauses. In the 1st sub-clause (1)(a), it says Article 238 will not apply to Jammu & Kashmir which is redundant now as Article 238 was repealed by 7th Amendment in 1956.

Sub clause (1)(b) says about the lawmaking power by the parliament under Article 370 is restricted to Union List and Concurrent List, which is in consultation with the Government of Jammu & Kashmir, with reference to matters specified on the instrument of accession of the year 1948 which includes Maharaja or any other person for the time being recognized by the President on the advice of Council of Ministers.

In Clause 371(1)(b)(ii) it says for matters other than specified under instrument of accession with the concurrence of the Government of Jammu & Kashmir is required.

Clause (c) provides Article 370(1) will apply to Jammu & Kashmir and clause (d) states such other matters the President by order specify.

The power mentioned above is subject to consultation in matters connected with accession and concurrence with the matters for being outside the scope of accession instrument. Therefore, for issuing a proclamation or making laws pertaining to Jammu and Kashmir, there is a requirement for consultation with Jammu and Kashmir State Constituent Assembly, in matters relating to Instrument of Accession and concurrence of Jammu and Kashmir government in matters outside the accession instrument. Without consultation or concurrence of state government, no presidential notification is possible. “The government,” in today’s background, means President on the concurrence of Council of Ministers headed by the Chief Minister.

These articles, in short, say that in matters outside the Instrument of Accession, the concurrence of government means that before concurrence the matter(s) has/have to be placed before the Constituent Assembly of Jammu and Kashmir for taking such decisions. Article 370(3) gives the power to the President to issue a notification to the effect that Article 370 will cease to apply or apply with such modification. This, again, has a caveat that it can be done only with the recommendation of the Constituent Assembly. Now there is no Maharaja. So the changes, if any, have to be done within three years under Article 372. In today’s scenario, without concurrence from the legislative assembly, Article 370(3) cannot be invoked without the Council of Ministers headed by the Chief Minister. Articles 370(1) and 370(2) cannot be invoked without consultation or concurrence of the Government of Jammu & Kashmir, as the case may be.

Whether Article 370 is a temporary, as some people argue, or permanent provision, makes no difference because the procedure to be followed for making changes is only with reference to Article 370. Initially, when the accession instrument was made in 1948, it was believed that, it can be worked out within a period of three years.

Now that almost, seventy years had lapsed since the accession instrument was executed, it is redundant to call it temporary. At any event, there is no dichotomy in procedures relating to abrogation of Article 370.

What is your view on certain being amended by the President Order dated 05th August?

As far as Article 367 is concerned, it has no relevance at all for the presidential order under Article 370. It is restricted to the interpretation of the general clauses act’s applicability alone. It says subject to adaptation and modification done by the president under Article 372, for bringing force to the existing laws in conformity with the Constitution. It cannot be the source of power to issue any notification under Article 370. Besides that, power under Article 372 comes to an end in three years. So today those references to Article 372 has no relevance.

President has no power to amend clauses under 370 without concurrence from the state legislature. It is a colorable exercise of power by the President by amending the definition of ‘government’ and ‘constituent assembly’ and overlooking the role of the legislative assembly given under Article 370(2). The entire exercise of the Presidential Order notified on 05th August is illegal and ultra vires to his powers under Constitution for the reasons stated above. If the Presidential Order dated 05th August 2019 fails for the reasons stated above, the new Act should also fail since it is against constitutional morality and a mala fide exercise of power.

As for the validity of the bill passed by the Parliament regarding Jammu & Kashmir State Reorganization Act, it is apt to suggest here that if the Presidential Order dated 05th August fails for the reasons stated herein above, following suit, the new Act referred to herein above should also fail since it is against constitutional morality and mala fide exercise of power which is one of the grounds opened to challenge legislature as per the decision in Shreya Singhal case.

As regards the question that article 370 was amended in the past through presidential orders, how do those instances differ from the current situation, it is important to quote a court case in this context. In the case titled Puranlal Lakhanpal vs The President of India, the petitioner argued that the six seats are allotted to the State of Jammu and Kashmir in Lok Sabha and election to those seats should ordinarily have been by direct election under article 81(1) of the Constitution but the President modified the Article under artilce 370(1); that this modification amounted to a “radical alteration” in Article 81 and was not justified under Article 370(1). The court however held that “[T]here was no radical alteration” in article 81 and the President had the power to make the modification which he did. Since this was done by the concurrence of state legislature article 370 is complied with. But the current amendment does not follow this procedure. President amended the procedure under article 370, bypassing the requirement of a concurrent state legislature, by colorably amending Art 367 by substituting the Governor in the place of a legislative assembly of the state which radically changes Article 370, This does not satisfy the test of SC judgment. It is colorable because the president cannot amend art 367, after 3 years since the amendment of art 367 and 372(3)

Case in Supreme Court of India

India’s Supreme Court agreed to hear legal challenges to the Modi administration’s withdrawal of Kashmir’s special constitutional status. As many as 10 petitions have raised legal challenges to the amendment of the Constitution and changes to the special status of Jammu and Kashmir. The pleas have been filed by a variety of persons, including lawyers, artists, bureaucrats and politicians. The petitions have alleged that the Article 370 amendment could not have been done without the concurrence of a duly elected Constituent Assembly in Jammu and Kashmir.

The decision to substitute the “Governor” as the authority to recommend and ratify proposals to change the legal status of the State, according to the petitioners, was “illegal and unconstitutional.” Despite objections from the government that Pakistan would use the proceedings to “embarrass” India on the world stage, chief justice Ranjan Gogoi ordered that a five-judge constitution bench would hear all 14 petitions in the first week of October.

Precedents

The High Court of Jammu and Kashmir had in October 2015 ruled that Article 370 cannot be annulled as the clause (3) of the article bestows the power to rescind the article upon the state constituent assembly. But, as the constituent assembly, was dissolved in 1957, it did not take any such move to revoke the article, and the article acquired a permanent status irrespective of being designated as a temporary provision of the Constitution.

The Supreme Court of India, in 2018, had opined on the similar lines and said that since the state constituent assembly has been discontinued, the President of India would not be able to implement or execute the obligatory provisions required for its withdrawal. Hence, if the Article 35A has to be abrogated again, it cannot realise the compulsory provisions which are indispensable under Article 370 as the article is a part of a series of presidential orders implemented under Article 370 of the Constitution.

What is rule of law?

Although the term the rule of law is to be found in abundance throughout legal and constitutional literature there is no legislative definition of what that term actually means. The concept of Rule of law was, however, discussed by ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote: “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state”. Likewise, Aristotle also endorsed the concept of Rule of law by writing that “law should govern and those in power should be servants of the laws.”

In modern history, Sir Edward Coke, the Chief Justice of King James I’s reign is considered the person who originated the concept of rule of law. He maintained that the King should be under God and the Law and he established the supremacy of the law against the executive and that there is nothing higher than law.

Later, Albert Venn Dicey (a British jurist and constitutional theorist) developed the concept in his book ‘The Law of the Constitution’ (1885). His writing on the British Constitution (which is unwritten) included three distinct though kindred ideas on Rule of law:

(i) Absence of discretionary powers and supremacy of Law: viz. no man is above law. No man is punishable except for a distinct breach of law established in an ordinary legal manner before ordinary courts. The government cannot punish any one merely by its own fiat. Persons in authority do not enjoy wide, arbitrary or discretionary powers. Dicey asserted that wherever there is discretion there is room for arbitrariness.

(ii) Equality before law: Every man, whatever his rank or condition, is subject to the ordinary law and jurisdiction of the ordinary courts. No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land.

(iii) Predominance of legal spirit: The general principles of the British Constitution, especially the liberties and the rights of the people must come from traditions and customs of the people and be recognized by the courts in administration of justice from time to time.