Varun Kannan

The Article 370 Amendments were effectuated through a Presidential Order and a Statutory Resolution. Post the dissolution of the Constituent Assembly, the most appropriate route for amending Article 370 is through Article 368. The presence of such an alternative route throws pertinent questions on the constitutional validity of the manner in which the Article 370 amendments were effectuated.

On 5^th August, the Central Government issued a Presidential Order (C.O. 272) and a statutory resolution which made substantial amendments to Article 370 of the Indian Constitution. The Presidential Order (hereinafter referred to as ‘C.O. 272) laid the foundation for two separate legal instruments that were subsequently introduced: (i) a statutory resolution that proposed amendments to Article 370; and (ii) the Jammu and Kashmir Reorganization Bill, 2019. At the outset, it is instructive to note that Article 370 has not been entirely abrogated – as the statutory resolution deletes only clause (2) and clause (3) of Article 370, and has amended clause (1).

Several constitutional concerns have been pointed out with respect to C.O. 272 and the statutory resolution (see here and here). In this post, I aim to analyze the possible interpretations that can be given to the erstwhile clause (3) of Article 370, which stated that a recommendation of the Jammu and Kashmir Constituent Assembly is necessary before any amendment can be made to Article 370. Based on these possible interpretations, I shall also argue that post the dissolution of the Constituent Assembly, the most appropriate route for bringing about this amendment was through Article 368, and not through a statutory resolution.

Article 370(3) and the necessity of a ‘recommendation’ by the Constituent Assembly

Under the erstwhile Article 370, provisions of the Indian Constitution would not be applicable directly to the State of Jammu & Kashmir. The constitutional provisions could be made applicable only through a Presidential order issued under Article 370. Under the proviso to Article 370(3), a recommendation of the Constituent Assembly is necessary before the President issues a public notification making any amendment to Article 370. Also, as per Article 370(1)(c) and 370(1)(d), the applicability of all other provisions of the Constitution to Jammu and Kashmir (except Article 1 and Article 370) can be amended through a Presidential Order. Article 370 can hence only be amended with the concurrence of the Constituent Assembly.

C.O. 272 seeks to amend Article 367 to the effect that in the proviso to Article 370(3), the term ‘Constituent Assembly’ shall now mean the ‘Legislative Assembly’ of Jammu & Kashmir. C.O 272 hence indirectly amends Article 370(3) to do away with the requirement of having a recommendation from the Constituent Assembly. As Jammu & Kashmir is currently under President’s rule, the requirement of taking the Legislative Assembly’s consent implies having the Governor’s consent, who is a representative of the Central Government. This was the basis on which the Home Minister introduced a statutory resolution in both Houses of Parliament, proposing the deletion of clause (2) and clause (3) of Article 370.

Before examining possible interpretations of Article 370(3), it is instructive to refer to Justice Nariman’s observations in SBI v. Santosh Gupta (2016), which concerned whether the SARFAESI Act, 2002 was applicable in Jammu & Kashmir. Justice Nariman referred to an earlier decision in Sampath Prakash to observe that although the marginal note of Article 370 refers to it as a ‘temporary’ provision, it is in current usage and shall continue to be in force till the event specified in Article 370(3) takes place. This implies that although Article 370 was intended to be a temporary provision, it continued to exist as the Constituent Assembly made no recommendation for its abrogation or amendment. Now, as the Constituent Assembly was dissolved in 1957 after framing Jammu and Kashmir’s separate Constitution, the manner in which Article 370 can be amended is debatable. Another question that arises here is whether Article 370 can be deemed to be permanent – as the Constituent Assembly which could have recommended its abrogation ceases to exist.

Possible interpretations of Article 370(3)

As Subhash Kashyap points out, there exists two views on whether Article 370 can be amended or abrogated. The first view is that as the concurrence of the Constituent Assembly is a condition precedent for amending Article 370, dissolution of the Constituent Assembly would mean that Article 370 ceases to be temporary, and as A.G. Noorani argues, it attains a permanent character.  Under the second view, the Constitution does not envisage a situation where there exists a vacuum, and there must exist a successor to the Constituent Assembly, which can be the Legislative Assembly or another appropriate constitutional body. The concurrence of the Legislative Assembly’s successor can be hence deemed sufficient for amending Article 370.

After amending Article 367 through a Presidential Order, the Government deleted Article 370(2) and 370(3) and amended Article 370(1) through statutory resolutions that were introduced in Parliament. The amendment in effect made the Jammu and Kashmir Legislative Assembly the successor of the Constituent Assembly, and paved the way for passing the statutory resolutions through a simple majority. If the amended Article 367 and Article 370(3) is interpreted purposively, it can be argued that the Governor’s concurrence under a situation of President’s rule cannot substitute the concurrence of the Legislative Assembly, which is an elected body.

This provides sufficient legal ground for a possible constitutional challenge to C.O. 272 and the statutory resolution before the Supreme Court. The Government’s likely response to such a challenge shall be that the Legislative Assembly acts as a successor of the Constituent Assembly, and that in the absence of an elected government, the Governor’s concurrence is sufficient, especially when such concurrence has been ratified by Parliament through a statutory resolution.

The non-use of Article 368

Instead of adopting a route that has a shaky legal and constitutional basis, the Government could have chosen to amend Article 370 through Article 368. Under the original Article 370(3), any amendment to Article 370 can be made through a public notification that can be issued only after a recommendation to that effect is given by the Constituent Assembly. From a plain reading of the proviso to Article 370(3), it can be inferred that having a recommendation from the Constituent Assembly serves as a pre-condition only if Article 370 was to be amended through a public notification. Post the dissolution of the Constituent Assembly, it can be argued that the proviso to Article 370(3) is rendered ineffective, and akin to any other constitutional provision, Article 370 can be amended through a constitutional amendment under Article 368. The power to amend the Constitution flows from Article 368, and no constitutional provision can be cast in stone and deemed permanent. This is further supported by the wording of Article 368(1), which begins with a non-obstante clause and states that – “Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution…”.

Post the non-existence of the Constituent Assembly and taking into account the wording of the non-obstante clause, the most legally sound route for amending Article 370 is through Parliament’s constituent power under Article 368. The existence of such an alternative route throws significant legal and constitutional questions over the statutory resolution, which was brought in the absence of an elected Legislative Assembly.

The road ahead

This is also probably the first instance where Parliament has exercised it’s legislative power to amend a constitutional provision. Unlike a statutory resolution which can be passed with a simple majority, a constitutional amendment can only be passed with a two-thirds majority in each House of Parliament. The Government probably did not choose the Article 368 route as it was not confident of gathering a two-thirds majority in the Rajya Sabha.

As the route chosen was through the exercise of legislative power and not constituent power, there exist substantial grounds to set-up a constitution bench to determine the constitutional validity of C.O. 272 and the subsequent statutory resolution. The Supreme Court has accordingly constituted a five-judge bench, which will begin hearing this matter on 14^th November. In this scenario, the Court shall have to test whether C.O. 272 and the statutory resolution act as an effective substitute for non-use of Parliament’s amending power under Article 368.

Varun Kannan is a 5^th Year law student at NUJS, Kolkata