The Article 370 Amendments: Key Legal Issues

In this post, I will attempt to break down the constitutional changes to Article 370, and highlight some key legal issues surrounding them. In essence, to understand what has happened today, there are three important documents. At the heart of everything is Presidential Order C.O. 272, which constitutes the basis for everything that follows. The second is a Statutory Resolution introduced in the Rajya Sabha, which – invoking the authority that flows from the effects of Presidential Order C.O. 272 – recommends that the President abrogate (much of) Article 370. The third is the Reorganisation Bill, that breaks up the state of Jammu and Kashmir into the Union Territories of Ladakh (without a legislature) and Jammu and Kashmir (with a legislature).

To understand the legal issues, we need to begin with the language of unamended Article 370. Article 370, as is well known, limited the application of the provisions of the Indian Constitution to the state of Jammu and Kashmir. Under Article 370(1)(d), constitutional provisions could be applied to the state from time to time, as modified by the President through a Presidential Order, and upon the concurrence of the state government (this was the basis for the controversial Article 35A, for example). Perhaps the most important part of 370, however, was the proviso to clause 3. Clause 3 itself authorised the President to pass an order removing or modifying parts of Article 370. The proviso stated that:

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 other words, therefore, for Article 370 itself to be amended, the recommendation of the Constituent Assembly of J&K was required. Now, the Constituent Assembly of J&K ceased functioning in 1957. This has led to a long-standing debate about whether Article 370 has effectively become permanent (because there is no CA to give consent to its amendment), whether it would require a revival of a J&K CA to amend it, or whether it can be amended through the normal amending procedure under the Constitution.

C.O. 272, however, takes an entirely different path. C.O. 272 uses the power of the President under Article 370(1) (see above), to indirectly amend Article 370(3), via a third constitutional provision: Article 367. Article 367 provides various guidelines about how the Constitution may be interpreted. Now, C.O. 272 adds to Article 367 an additional clause, which has four sub-clauses. Sub-clause 4 stipulates that “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 “legislative Assembly of the State.”

In other words, this is what has happened. Article 370(1) allows the President – with the concurrence of the government of J&K (more on that in a moment) – to amend or modify various provisions of the Constitution in relation to J&K. Article 370(3) proviso states that Article 370 itself is to be amended by the concurrence of the Constituent Assembly. C.O. 272, therefore, uses the power under 370(1) to amend a provision of the Constitution (Article 367) which, in turn, amends Article 370(3), and takes out the Constituent Assembly’s concurrence for any further amendments to Article 370. And this, in turn, becomes the trigger for the statutory resolution, that recommends to the President the removal of (most of) Article 370 (as the Constituent Assembly’s concurrence is no longer required).

This is very clever. Is it legal? One serious objection is Article 370(1)(c). Article 370(1)(c) (unamended) stated that “notwithstanding anything contained in this Constitution, the provisions of Article 1 and this Article shall apply in relation to that State.” This is absolutely crucial, because it makes clear that the power of the President to amend provisions of the Constitution in relation to J&K does not extend to Article 1 and “this Article”, i.e., Article 370 itself. 370(1)(d) makes it even clearer where it refers to the “other provisions” of the Constitution that may be altered by Presidential Order (and this is how the present Presidential Order is different from previous ones, such as those that introduced Article 35A). Article 370 itself, therefore, cannot be amended by a Presidential Order such as C.O. 272 (the one exception was a clarificatory amendment, which is not analogous to this one).

Now, it may be immediately objected that C.O. 272 does not amend Article 370: it amends Article 367. The point, however, is that the content of those amendments do amend Article 370, and as the Supreme Court has held on multiple occasions, you cannot do indirectly what you cannot do directly. I would therefore submit that the legality of C.O. 272 – insofar as it amends Article 370 – is questionable, and as that is at the root of everything, it throws into question the entire exercise.

There is a second important point to be noted here. C.O. 272 says – as it must – that the concurrence of the government of the state of Jammu and Kashmir has been taken. However, Jammu and Kashmir has been under President’s Rule for many months now. Consequently, actually, the consent is that of the Governor. However, there are two serious problems with basing C.O. 272 upon the consent of the Governor. The first is that the Governor is a representative of the Central Government – like the President. In effect, therefore, Presidential Order 272 amounts to the Central Government taking its own consent to amend the Constitution.

There is, however, a more important issue. President’s Rule is temporary. It is only meant to happen when constitutional machinery breaks down in a state, and an elected government is impossible. President’s Rule is meant to be a stand-in until the elected government is restored. Consequently, decisions of a permanent character – such as changing the entire status of a state – taken without the elected legislative assembly, but by the Governor, are inherently problematic. Formally, they may be within the bounds of legality; however, as the Supreme Court held in D.C. Wadhwa, on the question of re-promulgation of Ordinances, formal legality can nonetheless, in effect, amount to a fraud on the Constitution. Using the Governor to sign off on a Presidential Order that fundamentally alters the constitutional character of a federal unit appears, to me, to be straying dangerously close to the constitutional fraud line.

For these two reasons, therefore – first, on the indirect amendment of Article 370(3) proviso via 370(1), and secondly, on the use of the Governor as a substitute for the elected assembly in a matter of this kind – I would submit that there are serious legal and constitutional problems with Presidential Order C.O. 272 – which, of course, forms the basis of both the statutory resolution and the Reorganisation Bill.

74 thoughts on “The Article 370 Amendments: Key Legal Issues

  1. Wonderfully explained. However, does this also mean that, in a normal situation, under Article 370(1), the President can through an order amend and impose other provisions to J&K as long as it does not affect Art 1 and 370?
    Also, maybe it’s just an obvious doubt, but would such amendments through order be only imposed upon J&K and by effect do not amend the Constitution entirely for the whole country?

  2. Well Explained Gautam. I have a query though:

    1. Art 370 requires consent of CA of state.
    2. Art 367(4) equates CA to Legislative Assembly.

    While the office of the governor can be perceived to be equivalent to State Govt (Executive), it can not be equated to Legislative Assembly (Legislature). Wont this go against the principle of “Separation of Powers” and hence the basic structure itself??

    • The statutory resolution amending Article 370 has been moved with the recommendation of the Parliament not the Governon. Under Article 356, the Preaident subsumes the powers of thr Governor and the Parliament the power of the State Legislature.

  3. If you have given this matter some thought, I am wondering if there exists any constitutionally permissible way for Article 370 to be abrogated without reviving the J and K CA? If not, and if the solution adopted by the Government also could be viewed as amounting to a fraud on the constitution as you compellingly argue, there may be a compelling argument in support of the proposition that this was the only plausible means of adhering to Article 370’s temporary character and abrogating it when it is determined that it has outlived its utility. I realize that this may not serve as a sufficient basis to purify this exercise from the taint of bad faith.

    PS: I assure you that I won’t trouble you with more follow-ups or get into a debate 🙂

    • The consequence of that can well be that 370 is now permanent. Another alternative is that it can be amended via 378, given that both provisions have a “notwithstanding”, and there’s no clear hierarchy.

  4. Unable to understand how you reached the conclusion that language of 370(1)(c) curtails the legislative powers of Parliament to amend Article 370 by using A. 370. If legislature intended the same (curtailment of power argument) then why did not the legislature expressly added such Proviso, considering the fact that there are two Provisos to 370 (1). Also why did legislature provided vast amending powers to President under Proviso 2 of 370(1)

  5. Thank you for this clear statement… Still need to work things through, but it was really helpful.

  6. One of the best analysis of the attempted abolition of Article 370. Thank you for taking the pain to explain it so comprehensively!

  7. With people like Jaitley and Mukul Rohatgi as their legal advisors they must know that what they have done is a legal sleight of hand that will not stand scrutiny in court. Yet they have gone through with it so as to divert attention from their abject failure on the economic front.

  8. Very well explained.

    But, I see one way this can perhaps stand a challenge in constitutional court. Or at least this may be the argument the attorney general raises:

    ***

    Making the Kashmir constituent assembly mandatory requirement for amending article 370 makes it impossible to amend article 370. No part of the Constitution should remain untouchable. The basic structure doctrine will have to be invoked.

    What is the basic structure of article 370? It is about letting the constituent assembly of Kashmir decide on how Kashmir should be governed. The constituent assembly of Kashmir embodied their decision in the Constitution of Kashmir.

    The Kashmir constitution section 3 mentions that Kashmir is an integral part of Union of India. The Kashmir constitution section 5 refers to the Indian constitution for questions on executive and legislative power of parliament of India [note 1].

    Therefore, the Kashmir constituent assembly’s decision was to stay with India and concede the powers on deciding power back to Indian parliament.

    ***

    [note 1]: I don’t understand why the Kashmir constitution left this loophole open like this. They should have duplicated the relevant parts of Indian constitution in the Kashmir constitution.

    The above is just based on my understanding. I would love to be proved wrong somewhere.

  9. Great Analysis. But the President Rule now in Kashmir, can it be treated as President Rule under Art 356? Because Art 356 was not applicable before today’s Presidential Order.

  10. Is it conceivable that the Indian SC would reverse the abrogation of article 370, while allowing the bifurcation to stand?

  11. Why are you referring to the unamended Art.370? If Art.370 has been amended earlier and that has become a law, there is nothing wrong in getting this suspended/relived. When this has been passed in both the houses, can Supreme Court intervene and change or stop it? If such a legal recourse is easy, why the key players in J&K politics keeping quiet?

  12. Thanks for your fascinating analysis. Your succinct post did great service to people like me who is concerned about the BJP government’s anti-constitutional machinations but has limited knowledge about the Indian constitutional law.

    I agree with your argument that the Administration’s invocation of article 370 (1) to amend article 367, which further changes the content of article 370 itself, especially in respect of the proviso to article 370 (3) wherein the Constituent Assembly is replaced by the State Assembly, is an abuse of the power of presidential order under article 370 (1). As a result, the constitutional amendment as adopted in Presidential Order C.O.272 would be unconstitutional. Apart from the fundamental flaw as you rightly point out, I would think that a secondary and more legalistic submission could save article 370 itself without confronting C.O. 272 itself, although it would not save article 35A.

    Specifically, to satisfy the formal legality of repealing the entire article 370 under the new article 370 (3), the consent of the Legislative Assembly of Jammu and Kashmir is required. Yet, the Statutory Resolution of 05 August, 2019 itself falls short of doing the trick. Rather, it must rely on the Presidential Proclamation of 19 December 2018 whereby the powers of the Legislative Assembly were effectively transferred to the House of the People. Only by virtue of this presidential proclamation could the said Statutory Resolution (passed by the House of the People) be argued to have given the consent required for the repeal of article 370 even with the Legislative Assembly of Jammu and Kashmir still in abeyance.

    My thought is that the alleged powers transferred from the Legislative Assembly of Jammu and Kashmir to the House of the People under the said Presidential Proclamation do not include the right to consent as stipulated in article 370 (3); otherwise the Central/ Parliamentary substitute for the Legislative Assembly of the State would render the special protection under article 370 meaningless.

  13. The question is 367, how it can be amended by mere presidential order? Maybe you missed this or I missed something.
    As far as prez orders are concerned, it can only APPLY an EXISTING provision of the constitution to J&K THROUGH 370 – being the enabling mechanism, is my understanding.
    So how can there be an amendment to 367 WITHIN the prez order? Can somebody reply this?

    • 1954 order added 35a to the constitution using power granted by A 3701d .Capitalising on that precedent,present order added clauses to A367 using that same power.Both are debatable,as A 370 (1)(d) only provides power to modify existing provisions.

  14. I don’t think your concern about Governor being effectively the central govt itself holds much substance. The governor is the presidential agent with respect to certain functions, but the governor is also the representative of the State of J&K, and is able to be the “state of J&K” and he would satisfy the letter of the law , because the legislative assembly is not required to give consent, rather, it is the government , and in the absence of an elective govt, the governor is the govt even if he is nominated and not elected. Further, there is no bar on the governor acting for the State in lieu of the elective govt WITH RESPECT TO art. 370 provisions and the presidential order provisions.
    Also, the central govt can argue that your views that 370 is being undermined indirectly is a subjective view, and they can argue that in fact 370 is being utilized rationally by giving full power to its flexibility.
    The only real issue I don’t understand is 367 amendment which does not seem to have taken place at all (so the current 367 amendment seems to be on the same footing as 35-A, so it will be funny if someone supporting 35-A says that the C.O is invalid on amending 367) – in that respect, amending 367 as done now , and 35-A both seem to sink or swim together.
    So there is a win-win situation – if the supreme court strikes down the change to 367, it cannot uphold 35-A either. At least, this seems to be my understanding.

  15. While the article does well to explain the indirect route taken by the Govt.,
    I do not agree with the argument that A. 370(1)(c) disallows any amendment to the A.370 or A.1 of the Constitution.
    370(1)(c) simply says that certain provisions shall apply to the state of J&K notwithstanding anything contained in the Constitution. Are you saying that even a 368 amendment cannot change the way article 370 and article 1 apply to J&K?
    So, if your argument is to be accepted, can A.370 ever be amended?

  16. exactly. I wonder how the govt missed seeing such a obvious thing and why they are celebrating a dubious “amendment”. If the 367 “amendment” is seen as null and void – which it is – then the whole edifice falls apart and J&K is back as it was, 370 and all. But the interesting thing is that those who argue against the 367 “amendment” have to admit that 35-A is also a similar null and void “amendment”.
    Maybe that’s the govt game plan – if the 367 “amendment” is declared null and void, so will 35-A have to be declared as null,void,non existent etc.

  17. Technicality apart which I leave to great advocates
    My only point is this action is good for people of J&k , people of this nation and everyone

  18. If you compare this order to the one passed in 1954, modifications to Article 367 were present even in that. So unlikely a challenge to the same modification in this order would survive. But what needs to be studied is how Article 356 applies to the state of J&K, in the context of the 1954 order as amended from time to time, and evaluate whether the President could have issues CO272 when President Rule was in progress. If the President could not have issued such a notification, then there it can be rolled back.

  19. In the first instance, President acted on the strength of existing authority and no provisio was sought to be amended as you claim.

  20. Although both of your arguments seem to be well founded, however, I believe that had you taken into account the title of article 370 (Temporary provisions…), your findings would have been different given the fact that CA of J&K doesn’t exist.

      • Although, what us lawyers often make a living out of is nit-picking with judicial precedent. It may not be incorrect to suggest that IndConLawPhil does so too from time to time. 🙂 If you combine two ex facie facts- the use of the word “temporary” in the marginal heading and the casus omissus with respect to the modification of Art 370 beyond the life-time of J&K’s “Constituent Assembly”, I do believe there is good reason for the SC to overrule the 2016 decision.

  21. what is the status of the matter if the elections are held and legislative concurrence is obtained within 6 months to ratify the whole exercise??

  22. I am ambivalent on this whole situation, Kashmir needed a solution, doing away with its separate constitution and status might not be such a bad way to resolve this issue. Provided that violence does not occur, the rights of Kashmiris are protected and they are treated fairly.

    The constituent assembly of J&K could not exist in perpetuity so any consent had to be of the State Assembly. Could the Governor give the consent, that question is valid.

    Practically and in the long run, this change in the constitutional status of Kashmir might work out best. Most ordinary people want to live in peace and prosperity.

    So the Government needs to now provide peace and prosperity to Kashmiris.

    The old status and Constitutions were creations of a different time and circumstances. If as everyone says, Kashmir was an integral part of India, then why not welcome this change.

    This change can now create non-violent gradual change in the aspirations and lives of Kashmiris. They are fully Indian now.

  23. The Presidential Rule was in place to run J&K, and hence can’t a Presidential Order be issued? Then what’s the meaning of the President’s Rule?

  24. Interesting read. Compelling argument. In the meantime in some quarters there seems to be a common ground among both hardliners on both sides of India & Pakistan who would be more than happy to see Article 370 go so to invalidate controversial/flawed instrument for accession signed under questionable circumstances that became the only string for India to hang onto Kashmir against the majority Muslim Kashmiris (with the exception of Kashmiri Pandits minority with all due respect) which gave India some form of legitimacy it needed for its grip on Kashmir hence whatever legitimacy that was hanging on balance has all but disappeared overnight by virtue of breaching the terms of accession instrument – as seen from Pakistan’s side – while on the India’s side, the hardliners never had faith in viability of Article 370 in the first place so to enable integration of Kashmir by any means, using full forces and levers of power at its disposal even if it means sending thousands of troops to the territory and locking up elected political leaders, come what may.
    On a side note, a prominent Indian lawyer/advocate of the Supreme Court of India (SCI) visiting London said that the BJP government is fully aware of all the contrary legal arguments/have taken into considerations with their top constitutional legal advisors at disposal (whether the advocate in question is a member of the gov lawyers panel – I don’t know) but said, should all things fail, they have a nuclear option of national security – using the very tool fellow Pakistan (SCP) has used before: Doctrine of Necessity… “that which is otherwise not lawful is made lawful by necessity” as used in the infamous case of Federation of Pakistan v Maulvi Tamizuddin Khan (1955) which could also be cited as precedent from a fellow Common law country SC judgement as a persuasive argument to convince the SCI that national security was at stake should all legal arguments fail (which remains to be seen of course). The lawyer quipped it would deliver a masterstroke for the BJP government to undermine Pakistan and opposition parties own counter claim on legal grounds if there is any. He did however acknowledged that regardless of the legal arguments and legitimacy of government move to integrate Kashmir/change the future of the state, such move would could potentially set dangerous precedent for future hostile populist governments to undermine state powers using emergency constitutional tools. He quipped as a humour: Next is West Bengal on the list to bring under presidential rule removal of its firebrand [sic] Mamata Banerjee’s TMC from power of they overplay or abuse their power.

  25. Thanks for this great insight. Whether this amendment will consider as an attack on Federal structure of Indian system ? If yes, then as per Keshvananda Bharti’s Case Federalism is Basic structure of constitution which cannot be amended.

  26. Very well written post. Though I had a query;
    Isn’t the concurrence of State Govt. required for enacting an order such as the C.O. 272 itself? What the C.O. purports to do is secondary, but then if the C.O. in the first place violates the “concurrence” under 370 would it be subject to challenge?

    • C.O. purports to take the concurrence of State Govt in the opening line, which – because of President’s Rule – is actually the concurrence of the Governor. That is the whole sleight of hand.

  27. It would seem that despite 370 1 (d) prohibiting modifications to 370, 370 (3) allows the president to effectively modify 370 anyway.

  28. Sir, it’s a great article which explains the legal part in a comprehensive manner, but I have a few questions regarding this whole controversy:-
    1) whats the legality of the Presidential order? in sense, can the president unilaterally change Article 367 without passing it through the constitutional amendment? if that’s the case, then what’s shall be the extent of this uncontrolled power as the can any time impose president rule in any state and start their agenda there.
    2) Second is regarding the president’s rule. In the constitution is not written wat shall be the ambit of it, so, can the Rajya sabha take such extreme steps without the presence of legislative assembly by giving the excuse that it was under the president’s rule? in sense, under the president rule, can such drastic steps be taken?
    3) thirdly, though it’s slight stretched argument but can this be one of the arguments that since at the time instrument of Accession was signed, both the states were an independent state and instrument of accession is nothing but an international agreement which is governed by the principle of Pact sunt servanda. so after this abrogation, can it be said that since the international agreement is breached then it would imply that J&K would again be treated as an independent state?

  29. Sir constitution is a dynamic document and.not intended to be a static and.stale book that do not addresses the growing and changing needs of the country. Lawyers do not always believe that whatever is done by the Parliament and Legislature in the larger interest of the country is constitutional. But they as a matter of routine hail it or welcome any thing done by judiciary even if it is outside the Constitution like Collegium and the hamstringing concept of undefined basic structure theory as the historic judgements and support it as Constitutional . In other words we should not adopt two yardsticks to evaluate the performance one for Judiciary and Lawyers and other for the Legislative and Parliament and the Executives. Privy purse was also abolished by MrsnIndira Gandhi .There were some legal objections but the public welcomed .it It is not the Form but the substance that is important. The analysis fails to examine the reasons ,background , inequalities and denial of fundamental rights that were perpetrated under the cover of Art 370 and to scrutinise the need for the extraordinary constitutional surgery to protect the State of J and K..Constitution is for the Public and the Public are not for the Constitution ..

  30. Brilliant analysis, as usual!

    I marvel at your quickness with which you type — at 11:18 PM it was announced in the parliament, You have TYPED 1100 words And by 12:51 PM you have the first comment. that’s some level…

    Can you take the burden to explain a layman like me how can 367 be amended without 368? Is it by using legislative powers of J&K?

    Thank you. 🙂

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