Everything wrong with the J&K Presidential Order

5IN-ARTICLE

Two days ago, India underwent a major constitutional and political change, as the central government through a presidential order (‘order’) set in motion the revocation of Article 370 which granted special status to the state of Jammu and Kashmir (‘J&K’). The order has been followed by a Bill through which the state of Jammu and Kashmir ceases to exist, and the territory is split into two Union Territories. The government’s decision has received a mixed response. In the present post, I do not wish to enter a political debate on the correctness of the government’s decision, however, I do wish to express my views on why the presidential order flouts the Constitution and is amenable to challenge before the Courts.

Before I delve into the arguments, a brief background on Article 370 would be helpful. When India attained independence, freedom was granted to the princely states as well. These states had the option of either joining the Union of India, Pakistan or staying independent. Both India and Pakistan were making attempts to convince the rulers of these states to join their respective countries. One such ruler was Maharaja Hari Singh the then ruler of J&K. The Maharaja fearing an attack from Pakistan agreed to join India, on certain conditions. In furtherance, an Instrument of Accession was drawn up between J&K and India according to which the Parliament of India could make laws regarding J&K only on the matters of defence, external affairs and communications. The remaining subjects were within the domain of J&K government. The conditions of the Instrument of Accession were reflected in Article 370, once India adopted its Constitution.

Unconstitutionality of the Presidential Order:

Article 370 states that the Parliament’s power to make laws for J&K is limited to the matters of defence, external affairs and communications. In case, the parliament wishes to make laws on any other matter, concurrence of the government of the state is mandatory.  Interestingly, the Article also provides that the President may by public notification either modify the Article or declare that it shall cease to exist (clause 3). However, for issuing such a notification the consent of the Constituent Assembly of the State is mandatory.

A reading of the provision brings out three important principles:

  1. The Parliament’s power to make laws for the state of J&K is limited to three subjects matters.
  2. The Article provides for consultation/concurrence with the Government of J&K before making laws applicable to the state.
  3. The President cannot revoke the article or modify it, unless it obtains the consent of the Constituent Assembly of the State.

The government vide the presidential order has amended Article 367 of the Constitution which is the interpretation clause. As per the amended Article, the expression ‘Constituent Assembly of the State’ as used in the Constitution is now to be read as ‘Legislative Assembly of the State’. This in effect means that under Article 370, the President now requires the consent of the Legislative Assembly of the State and not the Constituent Assembly.

An important question that is bound to arise is why the government amended Article 367 (interpretation clause) and not Article 370 itself. The answer is twofold. First, the erstwhile language of Article 370(3) did not allow the President to amend it without the concurrence of the Constituent Assembly, therefore the government cleverly changed the meaning of the expression ‘Constituent Assembly’ itself, to the ‘Legislative Assembly of the State’. Second, since the last few months, J&K has been under the Governor’s Rule which means that the Governor has the power to assume to itself the functions and powers of the Government of the State (Section 92, Constitution of J&K). The central government can argue that since, the powers of the Government of the State were currently with the Governor (including powers of the Legislative Assembly), he could grant consent as required under Article 370 for ceasing the operation of the provision.

The manoeuvring by the government no matter how clever, still falls foul of the Constitution of India on the following grounds.

A. Governor had no power to grant the consent under Article 370(3):
As per Section 92(1) of the J&K Constitution, every proclamation made by the Governor during the Governor’s Rule needs to be tabled before the State Assembly as soon as it is convened. The principle that can be culled out from the provision is that the Governor can only take temporary actions and actions with permanent consequences are to be taken by the State Assembly only. The justification behind such a rule is a basic principle of democracy i.e. the laws that govern citizens are made by their elected representatives which are the members of the assembly and not a Governor who is appointed by the Central Government. The Governor’s consent brings a permanent change to the governance of the state, which it is not empowered to do.

For the sake of an argument, if we were to assume that the Governor was empowered to grant the consent on a reading of Section 92(1) of the J&K Constitution, one cannot ignore that the same Section requires every proclamation issued by the Governor to be tabled before the State Assembly as soon as its convened. Interestingly, the Governor’s sanction has resulted in a situation where the state of J&K has ceased to exist and hence, has no State Assembly. Such a change as per the J&K Constitution can be affected only by an amendment, which only the State Assembly is empowered to do and not the Governor. Therefore, the Governor’s action is ultra vires the J&K Constitution and hence, invalid.

The Governor’s action of granting consent is also problematic as it goes against the basic idea behind Article 370(3). The Hon’ble Supreme Court in Prem Nath Kaul v. State of J&K [1959 Supp (2) SCR 270] while discussing the Article opined that our Constitution makers assigned great importance to the final decision of the Constituent Assembly under Clause 3. In my opinion, the justification for such an importance could be that the makers wanted to vest in the Constituent Assembly, the task of protecting the state from acts of the Central Government, that are not in the state’s interests. In the controversy at hand, the Governor could not have acted as the Guardian envisaged under the Article, as it was answering to its political appointee and would have the interest of the Centre in mind as against the interests of the state.

B. The Order is a breach of a constitutional promise:
The special status of J&K stemmed from a promise made to its erstwhile ruler. In fact, it was these assurances which were the linchpin to J&K acceding to India. These assurances were given a constitutional status, making them a constitutional promise. The presidential order and the subsequent actions of the government amounts to a breach of this constitutional promise.

It should be noted that when the order of the President discontinuing the privy purses of the rulers was challenged, Sh. Nani Palkhivala made a similar argument before the Supreme Court stating that the government was bound to honour its guarantee to the rulers. The argument was accepted, and the President’s order was set aside. Although, the Parliament passed a Constitutional Amendment to undo the decision, the argument of Nani, is applicable to the present case as well.

A looming question which breach of this promise leaves open is regarding the status of J&K. Since, J&K acceded to India on the basis of certain assurances and promises, does revocation of those assurances, render the accession of J&K invalid?

Concluding Remarks:

The government has time and again reiterated that Part XXI of the Constitution which contains Article 370 is temporary in nature as evidenced from its title i.e. Temporary, Transitional and Special Provisions. While this is true, one cannot ignore that this Part is as integral to the Constitution as any other, as held by the Supreme Court in Raghunath Ganpat Rao v. Union of India [1994 Supp 1 SCC 191]. Therefore, to see such an integral part of the Constitution being erased from existence in an unconstitutional matter, without any debate or discussion is shocking.

I do not wish to comment on the intentions of the government behind the move or its correctness. However, I do wish to state that any act no matter how righteous,  when done in violation of the principles of the Constitution is an act of constitutional impropriety and liable to be quashed. The words of Justice Mittar in Maharajadhiraja Madhav Rao v. Union of India, squarely apply to the present controversy.

The Hon’ble Judge opined that:

‘Breach of any of the Constitutional provisions even if made to further a popular cause is bound to be dangerous precedent. Disrespect to, the Constitution is bound to be broadened from precedent to precedent and before long the entire Constitution may be treated with contempt and held up to ridicule. That is what happened to the Weimar, Constitution.’

The presidential order issued by the government has been challenged before the Supreme Court. All eyes shall now be on the Apex Court where it would be required to decide between the will of the majority and the principles of our Constitution.

[Views expressed are personal.]

3 thoughts on “Everything wrong with the J&K Presidential Order

  1. Riya Maheshwari

    Being a temporary provision, no matter by what means the said Article has been abrogated, the essence of the provision(i.e.temporary provision) has been considered for.
    Moreover, the said Article was unwillingly adopted by the then Constituent Assembly. So it is incorrect to say that the action of the Govt. is unconstitutional. The move is concurrent with the wishes of the Constituent Assembly.
    Hence it must be welcomed.
    P.S.-Even our fundamental rights are subject to public interest then why not this Article so abrogated can be considered subject to National interest.
    Let me know if I am wrong with my point of view.

    Like

    1. Swapnil Tripathi

      Hi Riya! Thank you for your comment.
      There is a procedure provided in the Constitution, which needs to be abided by. Any violation of the procedure is an act of constitutional impropriety. Today it’s Article 370, tomorrow it’ll be something else.
      Second, the fact that the Assembly approved its incorporation, shows they were willing enough. The wishes of the assembly are made evident from the text of the Constitution and nothing else.
      Third, a parallel between FR and 370 is incorrect in my opinion. Even if we assume the same, FR are reasonably restricted subject to public interest and cannot be removed/violated all together. Here 370 is removed and not restricted.

      For your point on the appropriateness of the decision/welcoming the same, I have made it very clear in the post that I do not wish to comment on the same. I’m merely testing it on the touchstone of the Constitution and sadly it does not comply with the same, in my opinion.
      We can always agree to disagree. 🙂

      Like

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