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Thursday, Aug 22, 2019

Have we scrapped Article 370 of the Constitution?

A government order issued on Friday said the two union territories would come into being on October 31. But the notification hasn’t ended the debate in legal circles on whether the action of government was legal.

analysis Updated: Aug 10, 2019 18:56 IST
Samarth Krishan Luthra
Samarth Krishan Luthra
Rapid Action Force (RAF) personnel patrol a street during restrictions, in Jammu, India, on Friday, Aug 9, 2019.
Rapid Action Force (RAF) personnel patrol a street during restrictions, in Jammu, India, on Friday, Aug 9, 2019.(Nitin Kanotra/ Hindustan Times)
         

President Ramnath Kovind has issued the presidential order to end Jammu and Kashmir’s epical status and given his assent to the law bifurcating the state into two union territories. A government order issued on Friday said the two union territories would come into being on October 31. But the notification hasn’t ended the debate in legal circles on whether the action of government was legal.

To understand whether the government acted validly, one must note that the Constitution of India and that of Jammu & Kashmir are distinct from one another. This unique position is a creation of the special status bestowed upon the State of J&K by the Constitution of India to give effect to the Instrument of Accession of the Dogra ruler.

Article 370 provides for “temporary provisions with respect to the State of Jammu and Kashmir”. Article 370(1) (d) further states that the President, with the consultation of the government of the State of Jammu & Kashmir, may by Order, make exceptions and modifications to the provisions of the Constitution that shall apply in relation to that State of Jammu & Kashmir.

This Presidential Order has been issued under Article 370(1)(d) of the Constitution of India and it is this power that was exercised by the President of India through his order C.O. No. 272 to amend Article 367 of the Constitution of Jammu & Kashmir (the interpretation clause), so as to insert a new clause, being Article 367(4)(d) which treats the “Legislative Assembly of the State” for the purpose of Article 370(3), as the “Constituent Assembly of the State”, a body which had otherwise ceased to exist in the late 1950’s.

Clause (3) of Article 370 reads “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”.

The effect of this legal change is that the State of Jammu and Kashmir, which is currently under President’s rule, would be represented by the Governor as would be the government of Jammu & Kashmir. This effectively means, that, to issue this Order under Article 370(1) (d) of the Constitution of India, only the concurrence of the Governor had to be obtained and the Presidential Order C.O. No. 272 issued by the President with the consultation of the Government of the State of Jammu & Kashmir (represented by the Governor), as noted in it is valid.

Further the application of the entire Constitution of India to Jammu and Kashmir (as has been done) could only have been done with the “recommendation of the Constituent Assembly of the State”.

The Constituent Assembly of the State of J&K was dissolved in the late 1950s. While recognizing this, the Supreme Court in State Bank of India v. Santosh Gupta has while declaring that Jammu and Kashmir has no sovereignty after joining the Indian Union yet held that the recommendation of the Constitutional Assembly is necessary for the President to act under Article 370(3). Prior to the clarification brought about by the Presidential order C.O. No. 272, treating the Legislature of Jammu And Kashmir as its Constituent Assembly, Article 370(3) was defunct.

Once the Presidential Order C.O. No. 272 clarified that for Article 370(3), “Constituent Assembly of the State” means “Legislative Assembly of the State”, the President could exercise the power under Article 370(3) to “declare that this article shall cease to be operative….” with the recommendation of the Legislative Assembly – currently represented by The Governor. This legally strengthens the Presidential order “to declare that, as from 5th of August, 2019, all clauses of the said article 370 shall cease to be operative except clause (1) thereof”.

Thus the President can be said to have acted in a legal manner, in accordance with Article 370 itself.

Article 370, in fact, has not been abrogated and continues to be a part of the Constitution of India. The President of India has merely done away with the special status previously conferred upon J&K under Article 370, instead of taking the route under Article 368, which requires a two-thirds majority in both houses of Parliament to amend the Constitution of India.

This action of doing away with Jammu and Kashmir’s special status and conversion to a Union Territory and the carving out of Ladakh as a Union Territory, though ostensibly valid is likely to be challenged on claims of federalism and on it being a colourable legislation (the principle that what cannot be done directly, cannot be done indirectly).

What will also arise is whether the Governor represents the will of the people of J&K, so as to justify the mandatory requirement of ‘recommendation with the Constituent/Legislative Assembly’ in its true sense? While the Order and Notification of the President are prima facie legal and constitutional, only time will tell whether they will stand scrutiny of the Court and in what form.

(Samarth Krishan Luthra is practising law at Delhi. He graduated from Amity Law School, IP University in 2018)

First Published: Aug 10, 2019 18:56 IST

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