Abrogation of Articles 370 and 35A: Assault on the Constitution

In the landmark Kesavananda B haraticase(1973), the Supreme Court’s Constitution Bench, comprising 13 judges, distinguished between a simple amendment to the Constitution and rewriting a part of it and held that the latter was unconstitutional as it would involve abrogating its basic structure. In other words, the power to amend does not include the power to alter the basic structure of the Constitution so as to change its identity. The majority judges in that case held the federal character of the Constitution to be a part of its basic structure.

The Centre and those who defend the scrapping of the special status of Jammu and Kashmir may have several justifications for it, mainly political. But, in addition to those, if the Centre is unable to deny that doing away with the special status of the State could alter the basic structure of the Constitution, it is potentially vulnerable for being struck down as unconstitutional by the Supreme Court. On August 6, during the debate in the Lok Sabha, Union Home Minister Amit Shah let the cat out of the bag when he said that there was no reason to limit the word “modifications” as used in Article 370(1) only to such modifications that do not make any “radical transformation”.

Article 370, titled Temporary provisions with respect to the State of Jammu and Kashmir, uses the word “modifications” in subclause (1)(d) as follows:

“Notwithstanding anything in this Constitution, 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 subclause (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.”

Again subclause (3) of Article 370 says:

“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.”

In the notification issued by President Ram Nath Kovind on August 6, it was stated:

“In exercise of the powers conferred by clause (3) of Article 370 read with clause (1) of Article 370 of the Constitution of India, the President, on the recommendation of Parliament, is pleased to declare that, as from the 6th August 2019, all clauses of the said Article 370 shall cease to be operative except the following which shall be read as under, namely:

“ All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in Article 152 or Article 308 or any other Article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgment, ordinance, order, by-law, rule, regulation, notification, custom or usage have the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 or otherwise.”

(Both Articles 152 and 308 define “State” as excluding the State of Jammu and Kashmir, while Article 363 deals with bar to interference by courts in disputes arising out of certain treaties, agreements, and so on.)

It is clear from the President’s August 6 notification that Article 370 has not been repealed, but replaced by an entirely new provision. Curiously, the notification inserts it as an “exception”, if not a modification of the old provision. This “exception” was not a part of the old provision of Article 370 as it stood prior to August 6. Therefore, excepting something which was not a part of the old provision from being declared inoperative by the President sounds incomprehensible.

A plausible explanation is that the Centre was perhaps conscious of the fact that Article 370, as it stood earlier, did not permit its wholesale replacement by a new provision, and by using the word “exception”, the Centre sought to overcome this handicap imposed by the old provision.

If, according to the Kesavananda Bharati judgment amendments to the Constitution cannot mean changing its very identity, the words “exceptions” or “modifications” used in Article 370 could not have meant any radical transformation which the Centre aimed with the scrapping of the special status for Jammu and Kashmir and replacing of the old Article 370 with a new one.

State Constituent Assembly

The Centre’s assault on Article 370 did not end with replacing it with a new provision and completely changing the identity of the old provision. As the Centre could not have done so without the recommendation of the State’s Constituent Assembly, as required under Article 370(3), and as the State’s Constituent Assembly dissolved itself way back in 1956 without clarifying whether Article 370 should continue to operate or not, something more was required to facilitate the assault on Article 370.

Thus the President sought to amend Article 367 for the purpose by adding an additional clause (4). Article 367 deals with interpretation of the Constitution. Now, clause (4) reads: “In proviso to clause (3) of Article 370 of this Constitution, the expression ‘Constituent Assembly of the State’ referred to in clause (2)” shall read as “legislative Assembly of the State.” This amendment was required to avoid any requirement to revive the Constituent Assembly of Jammu and Kashmir, which dissolved itself after completing its task in 1956. It was argued that with the self-dissolution of the Constituent Assembly of Jammu and Kashmir in 1956, the “temporary provision” with an exit clause in Article 370(3) had become permanent and this amendment was intended to bestow on the State Legislative Assembly the imprimatur of the Constituent Assembly.

This has serious implications. By nature, scope and stature, a Constituent Assembly is a distinct body, entrusted with the task of drafting a Constitution. If its responsibilities are to be performed by a future Legislative Assembly, formally assuming its role, no Constitution would be safe from assaults on its essential values. The framers of the Constitution, because they sat in the Constituent Assembly, enjoy distinct status even after the dissolution of the Assembly. What they said or did not say during the Constituent Assembly debates aid in the interpretation of constitutional provisions. This is not to suggest that their words are binding on the future, but to suggest that another body in the future could assume its role and rewrite the Constitution without a mandate from the people would be a complete mockery. Imagine if the current Lok Sabha converts itself into a Constituent Assembly to rewrite the Constitution or parts of the Constitution using this as a precedent. The consequences could mean the end of the Republic itself.

But what the Centre did is something far more disturbing. As the Jammu and Kashmir State Assembly also stood dissolved following the imposition of President’s Rule, the Centre suggested that the Governor could give the consent for amending Article 370 and Parliament could make a recommendation to that effect. This substitution of one body after another to achieve the purpose of abrogating a constitutional provision defies both reasoning and common sense.

Far more sinister is the Centre’s attempt to avoid its obligation to amend a constitutional provision by following the proper procedure, as laid down in Article 368. The Presidential Order amending Article 367, it is clear, draws its authority from Article 370(1), which deals with the power of Parliament to make laws for the State of Jammu and Kashmir. As the unamended Article 370 did not enable substitution of the Constituent Assembly by the State Assembly, the Centre took a circuitous route to achieve that purpose by inserting a deemed provision under Article 367 through a Presidential Order. This is completely impermissible, because a Presidential Order could only be used to make modifications or exceptions in Article 370, or to make it inoperative, with the recommendation of the State’s Constituent Assembly. A Presidential Order, in other words, could not be invoked to amend other provisions of the Constitution. Therefore, Article 367 could only have been amended under the procedure laid down in Article 368. An amendment under Article 368 could only be carried out when the Bill for that  purpose is passed in each House by a majority of the total membership of the House and by a majority of not less than two-thirds of the members of the House present and voting. 

If the Constitution elaborately lays down a procedure for amendment of the Constitution and the President evades that procedure to achieve the same purpose, the result could only be described as a fraud on the Constitution.

The designation of the State of Jammu and Kashmir as a Union Territory with a Legislative Assembly and the bifurcation of Ladakh (including Kargil) as a Union Territory without a Legislative Assembly, without a recommendation from the State Assembly, are also fraught with serious infirmities which strike at the root of federalism, a basic feature of the Constitution. As the Supreme Court begins to hear the petitions challenging the Centre’s draconian decisions against Jammu and Kashmir, the constitutional test of legality could be availed themselves of by the aggrieved people of the State as the only remedy under the Constitution.