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Whether Abrogation of Article 370 And Bifurcation of State of J and K Is Legitimate Or Not?

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 provisions.

Constitutional Background:
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 SC 1118.

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.

Article 35-A:

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 Governor.

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 provision.

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 & Kashmir.

Conclusion:
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]

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