Kashish Makkar

In the midst of the political frenzy surrounding the Kashmir issue, we analyse the procedural validity of the Kashmir Order in this article.

While the unprecedented preparations by the Union to tackle any potential disturbances in the valley did churn up the rumour mills on the abrogation of the Special Status to Jammu & Kashmir, the government was successful in putting a remarkable blanket on its ‘real plan’. It is even more remarkable that when the Union Home Minister laid down the government’s plan and the proposed course of action before the Parliament, both the Media and Opposition failed to grapple with the nature and nuances of the same. While the Opposition stormed the well of the Rajya Sabha, the Media followed its protocol to feed the frenzy of the majority. As a result, the legal nuances of the government’s plan was lost on a large number of politicians, policy experts and scholars alike.

In this post, I will analyse the procedural nuances and validity of the Constitution Order passed by the President of India impacting the special status of the State of Jammu & Kashmir. This will be followed by an analysis of the interplay of the Statutory Resolutions relating to this special status proposed in the Rajya Sabha by the Home Minister.

Articles 370 & The Special Status

Before understanding the amendments proposed to the Constitution, affecting the special status of Jammu & Kashmir, it is imperative to understand the framework of Article 370. Article 370(1)(b) provides that the Union government via the Parliament has the power to make laws for the State of Jammu & Kashmir on the matters specified in the Instrument of Accession (IoA). The IoA provided only Defence, Foreign Affairs and Communications to be in the domain of the Parliament. State of Jammu & Kashmir exercised sovereign control over rest of the matters by virtue of its own constitution, drafted by its own constituent assembly. Therefore, the Parliament can only legislate with respect to the Defence, Foreign Affairs and Communications of the State of Jammu & Kashmir.

However, Article 370(1)(d) also provides that the President by order can apply other provisions of the constitution to the State. However, such a power is subject to a proviso that if the order relates to matters specified in the IoA, then the consultation of the State Government is mandatory. In case the same is not mentioned in the IoA, the concurrence of the State Government is mandatory. Since, the special status of the state of J&K is not related to Defence, Foreign Affairs and Communications, any order mandating application of any constitutional provisions requires concurrence of the State Government.

As a result, the President by an Order can mandate the application of any constitutional provisions to the State, if such an order has the concurrence of the State Government. This simply translates into the fact that the President can revoke the special status of the State of J&K by applying the regular provisions of the Indian Constitution to the State, if it receives the concurrence of the Government.

The Constitution (Application to J&K) Order, 2019 [CO 272]

By the Presidential Order issued under Art. 370(1), the Union has by virtue of its Rule 2 applied all the Provisions of the constitution to the State of J&K. Thereby, by virtue of this Order passed under Article 370(1) the special status of the State of J&K has been revoked in effect. Contrary to what has been suggested by the headlines, Article 370 has not been repealed from the Constitution. Instead, clause (1) has been used to denude the State of J&K of its special status. Therefore, Article 370 still stands as a substantive provision in the constitution.

However, as analysed in the previous section, such a presidential order mandating the application of regular provisions of the constitution requires the concurrence of the Government of Jammu & Kashmir. As one would know, the Legislature of the State of Jammu & Kashmir has been in a state of suspended animation. The failure of the Governmental functions in the State of Jammu & Kashmir after the withdrawal of 25-member BJP from the coalition that ran the government, led initially to a Governor’s Rule (under S. 92 of the J&K Constitution), and later President’s Rule.

Therefore, on December 19, 2018 the following proclamation was issued by the President of India:

“In pursuance…of the proclamation issued…by me under article 356 of the Constitution of India, I hereby direct that all the functions of the Government of the State of Jammu and Kashmir and all the powers vested in or exercisable by the Governor of that State…shall, subject to the superintendence, direction and control of the President, (and) be exercisable also by the Governor of the State.”

As a result, the ‘Government’ whose concurrence was required in this case to issue the Constitution Order was essentially the President of India and the Governor of State of J&K subject to the superintendence of the President. Some have argued that it is CO 272 itself which clarifies that the reference to ‘Government’ includes the ‘Governor’. The conclusion of this argument is that the Order is tautological. However, what must be noted is that as far as the reference to ‘Government’ is concerned, CO 272 merely makes a clarificatory statement. Even without the clarification, the December 2018 Proclamation essentially makes the Governor the correct authority to give concurrence.

Therefore, CO 272, in so far as it required the President’s assent and the concurrence of the State Government (Read: President of India) is valid.

Article 370: The Future

As analysed in the previous section, the Article 370 still stands as a substantive provision in the Constitution. Why then, did the government choose to denude Article 370 of its effect, instead of directly revoking it?

The popular debates surrounding the abrogation of the Special Status of the State of J&K revolved around using the route prescribed under Article 370(3) which provides:

“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….shall be necessary before the President issues such a notification.”

Therefore, clearly, the Presidential order could have simply, by a notification, declared the article to be non-operative. However, as provided in the proviso to Article 370(3), such an order requires the recommendation of the Constituent Assembly of the State of J&K. The Constituent Assembly of the State was a body that drafted the Constitution for the State of J&K and ceased to exist once the constitution was enacted. As a result, such a route would not have been possible.

Hence, the government chose to denude the effect of Article 370 by virtue of CO 272. However, the Union did not limit itself with denuding the impact of Article 370. CO 272 also laid down the path for the eventual declaration of Article 370 as inoperative under Article 370(3). The Order prescribed an amendment to Article 367, which is an interpretational clause aiding the reading of the Constitution, making the reference to “the Constituent Assembly of the State” to mean the “Legislature of the State”.

As a result, by virtue of the amendment introduced to the constitution by the CO 272, the President can declare Article 370 as inoperative by virtue of a Recommendation by the Legislature of the State of J&K.

There is, however, one last catch. The Presidential Proclamation of Dec. 19, 2018 discussed in the previous section that provided for the application of the President’s Rule, also prescribed that:

“the powers of the Legislature of the state shall be exercisable by or under the authority of Parliament and all the decisions taken thereof shall have a concurrence of the President under Article 74 (1)(i) under which council of Ministers with the Prime Minister, at the head, will aid and advise the President.”

As a result, the Legislature of the State that is required to provide the recommendation to render Art. 370 as inoperative is essentially the Parliament of India. The Statutory Resolutions introduced by the Home Minister become relevant at this stage.

One of the Statutory Resolutions proposed by the Home Minister and which was approved by a voice vote in the Rajya Sabha recommended the abrogation of Article 370 from the Constitution. Once the same resolution is also passed by Lok Sabha, it shall act as the recommendation of the Parliament to render Article 370 as inoperative. As discussed previously, the Parliament in the instant case is exercising the authority of the Legislature of the State. Therefore, the Parliament’s recommendation shall amount to a recommendation of the Legislature of the State under Article 370(3), allowing the President to render Article 370 inoperative permanently.

Kashish Makkar is one of the Founding-Editors of the Law School Policy Review.

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