Varun Kannan

The constitutional challenge to the Article 370 amendment hinges on the manner in which the Supreme Court applies and interprets its 1972 decision in Mohd. Maqbool Damnoo. This is significant for determining whether it was valid to replace the term ‘Constituent Assembly’ with ‘Legislative Assembly’ in Article 370.

On 5^th August, the Central Government made significant amendments to Article 370, which was effectuated through a Presidential Order (Constitutional Order 272) and a statutory resolution that was passed in both houses of Parliament. The Presidential Order and the statutory resolution has been challenged in the Supreme Court, and the Court has constituted a five-judge bench which has adjourned the hearing to 10^th December.

As I shall show below, the most significant decision that the Court shall have to examine while adjudicating this constitutional challenge is Mohd. Maqbool Damnoo v. State of Jammu & Kashmir – which is a decision rendered by a 5-judge bench of the Supreme Court in 1972. Before examining the relevance and applicability of this decision to the constitutional challenge of the Article 370 amendment, I shall briefly explain the core legal issues that shall arise before the Supreme Court.

The issues that shall have to adjudicated upon by the Supreme Court

Through the Presidential Order (hereinafter referred to as ‘C.O. 272’) and the subsequent statutory resolution, the Central Government deleted clause (2) and clause (3) of Article 370, and amended clause (1) in a manner that would make all provisions of the Indian Constitution directly applicable to Jammu & Kashmir. While the scope and ambit of the amendment to Article 370 was laid down in the statutory resolution, the statutory resolution derived its basis from C.O. 272. This was because C.O. 272 used the power conferred under the erstwhile Article 370(1)(d) to amend Article 367, which is an interpretation clause in the Constitution. Article 367 was accordingly amended to the effect that the term ‘Constituent Assembly of Jammu & Kashmir’ used in Article 370 shall now read to mean ‘the Legislative Assembly of Jammu & Kashmir”.

However, as Jammu & Kashmir is under Governor’s rule and did not have a Legislative Assembly, the Central Government took the view that the Assembly’s power could accordingly be exercised by Parliament. Using the rationale, the statutory resolution that proposed amendments to Article 370 was introduced and passed in both Houses of Parliament.

This brings us to the core legal issue that shall have to addressed by the Supreme Court. Under the erstwhile Article 370(1)(c), the Union Government could modify the applicability of all provisions of the Indian Constitution in relation to Jammu & Kashmir, except Article 1 and Article 370. In other words, Article 370 cannot be used to amend Article 370 itself, through a Presidential Order. By virtue of Article 370(3), such an amendment to Article 370 could have been effectuated only after a recommendation to that effect is received from the Constituent Assembly of Jammu & Kashmir.

This Constituent Assembly dissolved itself in 1957, after drafting the State’s separate Constitution. To resolve this anomaly, the Union Government issued C.O. 272, which uses the power conferred by Article 370(1)(d) to amend Article 367 in relation to Jammu & Kashmir. Hence, by virtue of C.O. 272, the power to make a ‘recommendation’ that could originally only be exercised by the Constituent Assembly could now be exercised by the Legislative Assembly.

Although C.O. 272 does not directly amend Article 370, it uses Article 367 to change the term ‘Constituent Assembly’ to ‘Legislative Assembly’ in Article 370(3). This prima facie appears to be a colorable exercise of power, as if Article 370 cannot be modified solely through a Presidential Order, it can also not be indirectly amended by amending another constitutional provision i.e. Article 367. The question that hence arises is whether C.O. 272 has effectively modified Article 370(3), through Article 367.

This is where the five-judge bench decision in Mohd. Maqbool Damnoo (hereinafter ‘Damnoo’) is of extreme relevance. Damnoo concerned a previous instance where Article 370 was used to modify Article 367, in relation to Jammu & Kashmir. The factual scenario and the decision in the Damnoo case is analyzed below.

The decision of the Supreme Court in Damnoo

In Damnoo, the validity of the Jammu & Kashmir Preventive Detention (Amendment) Act, 1967 was challenged in the Supreme Court. It was contended that the statute was invalid as the consent of the Sadar-i-Riyasat of Jammu & Kashmir was not taken. Prior to 1965, the Sadar-i-Riyasat was the elected Head of the State of Jammu & Kashmir. Through an amendment to the Jammu & Kashmir Constitution in 1965, the office of the Sadar-i-Riyasat was replaced with that of the Governor, who was to act on the aid and advice of the Council of Ministers. Along with the 1967 Amendment Act, the Petitioners also questioned this 1965 Amendment before the Apex Court.

Reference was also made to the Constitution (Application to Jammu & Kashmir) Second Amendment Order, 1965. This Presidential Order invoked the power conferred by Article 370 to modify Article 367, in relation to Jammu & Kashmir. Before referring to the modification made to Article 367, it is pertinent to refer to the explanation to clause (1) of the erstwhile Article 370. As per this explanation – “For the purposes of this article, the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-I-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office”.

The term ‘Sadar-i-Riyasat’ was not present in the original text of Article 370. In 1952, an amendment was made to the explanation to clause (1), on the basis of a recommendation from the Constituent Assembly of Jammu & Kashmir. This amendment had substituted the office of the Maharaja with that of the Sadar-i-Riyasat, who was the head of the State until the 1965 amendment. It is important to keep in mind here that this was an amendment made to Article 370 itself, on the basis of a recommendation received from the Constituent Assembly.

Now, let us get back to the modification made to Article 367 by the Constitution (Application to Jammu & Kashmir) Second Amendment Order, 1965. As per this Presidential Order, a clause that mentioned the following was added to Article 367:

“a) references to the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu & Kashmir;

(b) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers;”

By virtue of this amendment, the term ‘Sadar-i-Riyasat’ as used in the explanation of Article 370(1) was to be read as the ‘Governor’ of Jammu & Kashmir. This amendment order hence sought to give effect to the prevailing constitution position, where the elected office of the Sadar-i-Riyasat had been replaced with the office of the Governor, who is an appointee of the Union Government.

It was contended by the petitioners that this amounted to an amendment to Article 370 through the backdoor, as the power conferred by Article 370 could not be used to amend Article 370. The argument made in Damnoo is similar to what the petitioners are likely to contend before the Apex Court, while challenging C.O. 272. The Court rejected this argument, and held as follows:

“But, as we have already said, the explanation had become otiose and references to the Sadar-i-Riyasat in other parts of the Constitution had also become otiose. There were two alternatives; first, either to leave the courts to interpret the words “government of the State” and give it its legal meaning, or secondly, to give the legal meaning in a definition clause. What has been done is that by adding Clauses (aa) and (b) a definition is supplied which the Courts would have in any event given. Therefore, we do not agree that there has been any amendment of Article 370(1) by the back-door”. (emphasis supplied)

From the above passage, it is evident that the Court upheld the validity of the amendment order on the ground that it was clarificatory in nature, and did not in any way ‘modify’ Article 370. It was also held that the office of the Governor succeeded and replaced the office of the Sadar-i-Riyasat. In this regard, it was stated that although the Governor’s office is not an elected office like that of the Sadar-i-Riyasat, this would not make the Governor any less of a successor. On these grounds, it was held that the Governor had the power to give assent to the Jammu and Kashmir Preventive Detention (Amendment) Act, 1967.

The applicability and relevance of Damnoo for adjudicating the present constitutional challenge

Akin to the argument advanced in Damnoo, the Petitioners before the Supreme Court may contend that C.O. 272 seeks to amend Article 370 through the backdoor. The answer to this question lies in a very simple premise – if C.O. 272 is interpreted as a modification of Article 370, then C.O. 272 shall have to be struck down, as Article 370 cannot be modified in that manner. In other words, if reading the term ‘Constituent Assembly’ as ‘Legislative Assembly’ amounts to a modification of Article 370, then C.O. 272 has to be struck down as Article 370 cannot be used to modify itself.

In Damnoo, the validity of the 1965 amendment order was upheld as the office of the Governor succeeded and replaced the office of the Sadar-i-Riyasat. Similarly, while defending the validity of C.O. 272, the Union Government shall have to establish that the Legislative Assembly acts as a successor of the Constituent Assembly under Article 370(3), in so far as it relates to the power to make a recommendation to modify Article 370.

However, unlike the office of the Governor, which clearly succeeded and replaced the office of the Sadar-i-Riyasat, the Legislative Assembly did not in any way ‘replace’ or ‘succeed’ the Constituent Assembly. The Constituent Assembly dissolved itself after completing its task – which was to draft the Constitution of the State of Jammu & Kashnir. It dissolved without making any recommendation on Article 370. The Government shall then have to establish that post the dissolution of the Constituent Assembly, the body that is now competent to make a recommendation for modifying Article 370 is the Legislative Assembly. It is pertinent here to refer to the views of noted constitutional expert Subhash Kashyap, who has stated that there must be some successor to the Constituent Assembly in the eyes of law, as the Constitution does not envisage the existence of a situation where there is a vacuum.

While determining whether the Legislative Assembly can be considered as a successor for this purpose, it is also important to keep note of Section 147 of the Jammu & Kashmir Constitution. Section 147 confers the Legislative Assembly with the power to amend the Jammu & Kashmir Constitution, subject to the conditions laid therein. Except Section 3 and Section 5 (which cannot be amended), all other provisions of the Constitution can be amended by the Assembly, on the basis of a two-thirds majority.

From Section 147, it can be inferred that while the Constituent Assembly was the body that drafted the separate constitution of the State, the power to amend the same vests with the Legislative Assembly, post the dissolution of the Constituent Assembly. However, Section 147 also states that the Legislative Assembly does not have the power to introduce a Bill to modify the provisions of the Indian Constitution, as applicable to Jammu & Kashmir.

This provision hence acts as a hurdle to the contention that the Legislative Assembly can be considered as a successor to the Constituent Assembly in the eyes of law. However, the Union Government may rebut the same by stating that Section 147 only forbids the introduction of a Bill to amend provisions of the Indian Constitution, and does not in any forbid the Legislative Assembly from making a ‘recommendation’ to the Central Government for amending Article 370.

The most important hurdle for the Union Government shall be the Petitioner’s claims of a backdoor amendment to Article 370, which can amount to a colorable exercise of power. The Union Government may respond by contending that akin to the 1965 amendment order, C.O. 272 is also an amendment that is ‘clarificatory’ in nature. But, as Article 370 cannot be used to amend itself, it is questionable whether even such a ‘clarificatory’ amendment that changes ‘Constituent Assembly’ to ‘Legislative Assembly’ shall pass constitutional scrutiny.

Conclusion

The applicability and relevance of the decision in Damnoo and the 1965 amendment is probably the most significant issue that the Court shall have to grapple with, once the hearings re-commence on 10^th December. The outcome of the constitutional challenge significantly hinges on the manner in which the Court applies Damnoo to interpret the change brought about by C.O. 272.

(Varun Kannan is a final year student at the National University of Juridical Sciences (NUJS), Kolkata)

Image Credits – Bar and Bench