The President has, on the recommendation of Parliament, issued 'The Jammu And
Kashmir Reorganization Act, 2019' [Act No. 34 of 2019] a Declaration under
Article 370 (3) of the Constitution of India in exercise of his powers under
Article 370 (3) read with Article 370 (1) of the Constitution to declare that
all clauses of Article 370 would cease to be operative from August 06, 2019,
except the clause to the effect that (a) II Appendix of this Constitution,
as amended from time to time, without any modifications or exceptions" shall
apply to Jammu & Kashmir (J&K), notwithstanding anything contrary contained in
the Constitution of the Jammu & Kashmir or any law, document, judgement, ordinance,
order, by-law, rule, regulation, notification, custom or usage having the force
of law in the territory of India, or any other instrument, treaty or agreement
as envisaged under Article 363 or otherwise.
Article 370 (3) of Constitution of India provides that 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 signed the
Constitution (Application to Jammu & Kashmir) Order, 2019 on August 05, 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 President’s Rule is in force in the State, implementation of
Article 370 has ceased to exist as the President issued the notification in this
regard, after this House passed the resolution.
After issuing August 05, 2019 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 0rder 272. Both Houses of
the Parliament have approved through a majority vote the revocation of Article
370 in the Constitution. In another bill which also stands passed by both the
Houses, J&K has been bifurcated into two Union Territories – J&K with a
Legislature and Ladakh without a Legislature.
Notably, Government has also amended Article 367 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
In its preface of the recent copy of the Constitution of India dated 31st July,
2018 it has been clarified that “the Constitution applies to the State of Jammu
& Kashmir with certain exceptions and modifications as provided in Article
370 and the Constitution (Application to Jammu and Kashmir) Order, 1954. This
has been included in Appendix I for facility of reference and Appendix II
contains re-statement of the exceptions and modifications”. It is also an
interesting fact that the Bare Acts and Books on Constitution of India available
in Indian market usually don’t mention C.O. 48, Article 35-A & other special
modifications to the Constitution of India with respect to Jammu & Kashmir and
hence majority of the population is completely unaware of its particularity.
The source of Article 35-A and other major modification of the Constitution of
India with respect to J&K are in The Constitution (Application to Jammu and
Kashmir) Order, 1954’ (C.O. 48). The C.O. 48 has been issued in exercise of the
powers conferred by the clause (1) of Article 370, wherein the President, with
the concurrence of the Government of the State of Jammu & Kashmir made this
Order. It has been also subsequently modified with new additions in the C.O. 48
till the year 1988 through the same route.
The present The Constitution
(Application to Jammu and Kashmir) Order, 2019 (C.O. 272) has also been issued
under the same power enshrined under Article 370 of the Constitution of India
itself. If the power exercised by the then Congress Government under Article 370
(1) was valid then what is so special today which makes it unconstitutional in
the year 2019. Merely because the power has been exercised to make assimilation
of J&K with rest of India more homogenous doesn’t make it unconstitutional.
Effectively Article 370 provides competence and restrictions to the Union
Legislature to make laws with respect to the State of J&K, applicability of
certain provisions of the Constitution to J&K and also if any amendment made in
the Constitution then it’s extension over the State of J&K. It is provided that
this can only be done by a ‘Presidential Order’ under Article 370 (1)(b)(ii) and
under Article 370 (1)(d), if the subject matter of the law falls outside the
ambit of matters enumerated in the Instrument of Accession.
It provides that the concurrence of the State Government is essential before
issuing such ‘Presidential Order’ over any subject matters not specified in the
Instrument of Accession. Readers here may pause & read Article 370 of the
Constitution which provides about this ‘Temporary Provisions’ with respect to
the State of Jammu and Kashmir for better clarity.
Amending power of the President under Article 370 with respect to State of J&K:
The Instrument of Accession was signed by the Ruler of J&K on 26th October 1947
and the same was accepted by the Governor-General of India on 27th October 1947.
Under the Instrument of Accession only three subjects - External Affairs,
Defence and Communications – were surrendered by the State to the Dominion.
Due to these special features not all the provisions of the Constitution of
India apply to the State of Jammu & Kashmir; some of the provisions apply, some
do not apply, while others apply in a modified form. Over the time more and more
provisions of the Constitution have been applied to it by way of this instrument
of Presidential Order. Such Presidential Order doesn’t require any mandate from
the Parliament. It requires the Concurrence or Consultation with the State
Government and the satisfaction of the President before issuing such order to
respect the spirit of the Instrument of Accession. An amendment made to the
Constitution does not automatically apply to the State of J&K. It can apply only
with the concurrence/consultation of the State Government, and when the
President issues an Order under Article 370.
Article 370 is a special provision for amending the Constitution in its
application to the State of J&K. Article 368 does not curtail the power of the
President under Article 370. Even a radical alteration can be made in a
constitutional provision in its Application to the State of J&K. The Hon’ble
Supreme Court has refused to interpret the word ‘modification’ as used in
Article 370 (1) in any narrow or pedantic sense.
A 5 Judges Bench of the Hon’ble Supreme Court of India in Puranlal Lakhanpal v.
President of India, AIR 1961 SC 1519 observed as under;
Para 4: ……… There is no reason to limit the word “modifications” as used in
Article 370 (1) only to such modifications as do not make any 'radical
transformation'. We are therefore of opinion that the President had the power to
make the modification which he did in Article 81 of the Constitution.
The above ratio has been again reiterated by another 5 Judges Bench of the
Hon’ble Supreme Court in Para 15 of Sampat Prakash v. State of J&K, AIR 1970
Article 370 (1) (d) lays down that other provisions of the Constitution of India
can be applied to the State of Jammu & Kashmir with or without modifications by
Order of the President. Such an Order is not to be issued by the President-
Without consulting the State Government if matters to be specified in the Order
relate to those mentioned in the Instrument of Accession;
Without the concurrence of the State Government if the matters to be specified
in the Order relate to matters other than those mentioned in the Instrument.
It is hereby interesting to mention that the provisions stipulated under Article
370 Constitution of India only envisages for the application of the already
existing Articles/Provisions of the Constitution of India with or without
exception or modification in the State of J&K. It nowhere provides that a
new/de-novo Article can be inserted in the Constitution.
By the C.O. 48 issued under Article 370 (1) of the Constitution, with
concurrence of the State Government, the insertion of the Article 35-A in the
Constitution of India is extraordinary and unique. This is an only exception
whereby the C.O. 48 inserted a new provision to the Constitution of India and
specifically uses the word ‘new article’ in The Constitution (Application to
Jammu and Kashmir) Order, 1954. The insertion of Article 35-A is a Biggest
Constitutional Fraud on Constitution of India.
Effect of Article 35-A: This inserted provision in the Constitution of India
gives immunity to any State Legislation passed which provides any special rights
to the 'permanent resident' of the State of J&K even if it is inconsistent with
the fundamental rights of other citizens of India. [eg. under Article 15 (1), 16
(1), 19 (1)(e) – (f) etc.]
The permanent residents are such persons as are declared to be so by an existing
law of the State or by any future law enacted by the Legislature of the State.
And any such law may either confer special rights or privileges or imposes
restrictions upon the permanent residents with respect to any or all of
the following manner:
1. Employment under the State Government;
2. Acquisition of the immovable property in the State;
3. Settlement in the State; or
4. Right to Scholarships and such other forms of aid as the State
Government may provide.
It is because of this limitation under Article 35-A, J&K is suffering from
economic stagnation and it keeps the citizen of one country in two different
Silos and distinguished from each other.
Supersession of the C.O. 48 by the Presidential Order under Article 370
(1)(d) is a valid exercise within the Constitution:
As already discussed in the above two cited case laws in Puranlal Lakhanpal and Sampat
Prakash; any alteration by way of such Presidential Order under Article 370
(1)(d) will be permissible and if the alteration has been made within the Union
List or Concurrent list corresponding with the matters enumerated in the
Instrument of Accession then only Consultation of the State Government will be
required. Defense and Foreign Affairs is certain heads under which such Order
may be notified only after consultation with the State Government.
However, as the C.O. 48 has been notified after the concurrence of the State
Government hence the exercise of issuing Constitutional Order 2019 under the
Article 370 (1) by the President after concurrence of the State Government to
supersede C.O. 48 is a valid exercise. This is again supported by the resolution
of the Parliament to this aspect. The concurrence obtained by the Governor of
the State in the present case is a valid concurrence and consent of the State
Government as per the Constitution of the J&K and as per the ratio decided by
the Hon’ble Supreme Court in this aspect.
A 5 Judges Bench of the Hon’ble Supreme Court of India in Mohd. Maqbool
Damnoo v. State of J&K, (1972) 1 SCC 536; has held that Governor is equally
and similarly entitled to give concurrence on behalf of the State of J&K as of Sadar-i-Riyasat for
the purpose of amendment under Article 370 (1) of the Constitution.
Para 22. It seems to us that the essential feature of Article 370,
sub-clauses 1 (b) and (d) is the necessity of concurrence of the State
Government or the consultation of the State Government. What the State
Government is at a particular time has to be determined in the context of the
Constitution of Jammu and Kashmir…
Para 24. …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. ….. If this meaning is given, it is quite clear that the
Governor is competent to give the concurrence stipulated in Article 370 and
perform other functions laid down by the Jammu and Kashmir Constitution.
Para 25. …By virtue of this Act, if the Governor is the successor to the
Sadar-i-Riyasat, he would be entitled to exercise all the powers of the
Sadar-i-Riyasat. There is no doubt that he is the successor.
Para 26. It is true that the Governor is not elected as was the
Sadar-i-Riyasat, but the mode of appointment would not make him any the less a
successor to the Sadar-i-Riyasat. Both are heads of the State.
Thereafter, concluding in Para 28 & 30 the Hon’ble Supreme Court has refused to
entertain such contention that there has been any amendment of Article 370 (1)
by the backdoor and hold that the Amending Act was validly assented to by the
One may argue that the Governor should not give such concurrence without the aid
and advice of the Council of Minister and in the absence of the Legislative
Assembly. But, these arguments are not sustainable in the light of the
provisions stipulated in the Constitution of Jammu & Kashmir. Section 26 to 28
of the Constitution of J&K clarifies it and makes ‘Sader-i-Riyasat’ (now
Governor) as Head of the State and there is no such stipulation fettering to the
power of the Head of the State. There is a reason why we have Governor’s Rule in
J&K whereas, President’s Rule in rest of the States of India during the absence
of Assembly. The Governor of Jammu & Kashmir holds absolute power as a head of
State in the absence of the Legislature and Council of Ministers and competent
to give such concurrence to the President of India to meet any exigencies as a
Government of the Jammu & Kashmir. Henceforth, the concurrence given is within
the ambit of Constitution of India and J&K both.
After notification of The Constitution (Application to Jammu and Kashmir) Order,
2019 now entire provision of the Constitution of India is equally applicable to
the State of Jammu & Kashmir without any modifications as stipulated under the
earlier superseded C.O. 48.
Substitution of Article 370:
Thereafter, on 06th August 2019 when Parliament has passed the resolution
assuming the capacity of Constituent Assembly of the State, President of India
under old Article 370 (3) read with Article 370 (1) declared by C.O. 273 that
all clauses of old Article 370 shall cease to be operative and substituted it
with new Article 370 which makes entire Constitution applicable to J&K without
any modification notwithstanding any contrary provisions anywhere.
Before issuing such declaration under old Article 370 (3) the only necessity was
the recommendation of the Constituent Assembly of the State shall be necessary
before the President issues such a notification. Which is not in existence. Now,
in the absence of Constituent Assembly of the State, Parliament has duly
exercised its power as a successor of it and makes an end to this temporary
But before scrapping old Article 370, the Government has scrapped the mess
created by the old Article 370 in the form of C.O. 48 which also
includes Article 35-A. As the C.O. 48 superseded, the limitation on the power of
Parliament to reorganize the State of Jammu & Kashmir under modified Article 3
also extinguished, hence Parliament became entitled to reorganize the State of
J&K and hence the bill was validly introduced and passed in the Parliament. And
since now the J&K State is becoming Union Territory hence obviously the
Parliament became the Legislature of the both UTs in the absence of the
Legislature and hence equally competent to pass such recommendation in capacity
of Constituent Assembly, which is not in existence for decades.
Inclusion of Article 370 in the Constitution of India was never intended to
create a partial accession or to perpetuate Instrument of Accession based
autonomy for Jammu & Kashmir forever. They were intended to permanently unite
the State in an indestructible Union. The decision to grant special status to
J&K under Article 370 was temporary and transitional, as indicated by the
marginal note and as such it cannot last forever. It was not an essential
feature of the Constitution and not part of the basic structure of the
Constitution of India and hence was not beyond amendment.
Under Article 370 (iii), there is a provision for withdrawing this special
status, which can be done by the President in consultation with the State
Assembly. Since there is no State Assembly now (in J&K) and President’s Rule is
in operation, the entire legislative function vests in the President.
The power under Article 370 (1) has been used to amend Article 367. In Article
367, under Interpretation, a clause was added in relation to the State of
Jammu and Kashmir. As per the amendment, now the Government of Jammu &
Kashmir equals the Governor of Jammu & Kashmir; the
Sadar-i-Riyasat equals to the 'Governor', and most important, the
Constituent Assembly of Jammu & Kashmir now equals the State Legislature.
In plain words, to scrap Article 370, the President needed a recommendation of
the Constituent Assembly of the State. This amendment of Article 367
equated the 'Constituent Assembly' to the 'State Legislature', and the 'State
Legislature' was made equal to the 'Governor', and the abrogation was completed.
With this, the era of “State within the State” is over and the controversial
provision that made J&K separate from India is buried forever. The psychological
barrier that it created between Kashmir and rest of India stands
removed. Articles 370 & 35-A have now become a part of history of Jammu &
Therefore, in the light of the above said discussion C.O. 48 has been validly
repealed by way of issuing such superseding Constitutional Order under Article
370 (1) (d) of the Constitution of India after concurrence of the State
Government (i.e. Governor in the absence of the State Assembly) as the subject
matter falls outside the ambit of Instrument of Accession. Similarly C.O.
273 has been validly declared by the President to repeal old Article 370. There
is nothing unconstitutional about it and any challenge to this in the Court is
bound to fail.
In any case, the decision of both the Governments is in favour of the entire
State of J&K and India. It may lead us to a favourable outcome in terms of peace
and development in the State free from the vice of the terrorism and separatism.
The State has already organized its polity with the older system containing
Article 35-A and other modified form of Constitution as per C.O. 48 for last 72
years which has only resulted in grief, lack of development, terrorism and
separatism. So, there is nothing wrong on the part of both the Governments to
try a new political system which is successfully going through rest of the
country for last seven decades.
Written by: Dinesh Singh Chauhan, Advocate
J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]