Guest Post: Article 370: The Constitutional challenge

(This is a guest post by Nivedhitha K.)

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The legal trajectory that lead to the abolition of J&K’s special status has already been explained by Bhatia here. This post deals with a constitutional argument to challenge the course of events.

The Presidential Order C.O. 272 notified by the president on 5^th August, 2019 through Art 370(1) (d) is the genesis of the subsequent events. The order amended Art 367 in its application to J&K, wherein the phrase ‘constituent assembly of the state’ in Art 370(3) was construed to mean ‘legislative assembly of the state’. In my essay I argue that the Presidential Order C.O. 272 is unconstitutional to begin with, and hence the series of steps that followed the notification have no force of law.

An amendment to the Indian Constitution can be effected through Parliaments’ constituent power under Art 368. However, the Constitution can be amended for its application to the state of J&K through Art 370(1) (d), wherein the concurrence of the government of J&K will have to be obtained before the President notifies such modification. Pursuant to this, various constitutional orders have been notified by the President earlier, and this is how the notorious Art 35A came to be introduced in the Indian constitution.

Now, could Art 370(1) (d) be used to amend Art 370? The answer is in the negative. Art 370(1) (d) could only be used to ‘modify’ provisions other than Art 1 and Art 370 of the Constitution only. This is what distinguishes the present order from the one introducing Article 35A: Presidential Order C.O. 48 (the genesis of 35A) extended certain protections to permanent residents of J&K against the violation of fundamental rights.  The inclusion of Art 35A did not effect a ‘modification’ of Art 370 but merely modified another provision of the constitution (other than Art 1 and Art 370) by issuing an order under Art 370(1) d). On the other hand, Art 370(3) provides for a special procedure through which Art 370 could be modified or abrogated, where the recommendation of the constituent assembly of J&K is a mandatory requirement.

‘Modification’ under Art 370(3)

The central question of law is whether Presidential Order C.O. 272, in which the constituent assembly of the state and the legislative assembly of the state are used interchangeably, is a ‘modification’ under Art 370(3). In order to understand this situation, a reference is made to a similar circumstance in the past. Unamended Article 370, in its explanation clause, had stated that the government of J&K shall mean the Maharaja of J&K. In 1952, through a resolution under Art 370(3), the constituent assembly of J&K ‘modified’ Art 370 by substituting Sadar-I-Riyasat in the place of Maharaja. Subsequently, in 1954 Presidential Order C.O. 48, notified through Art 370(1)(d) which amended Art 367 in its application to J&K, stated that reference to Sadar-I-Riyasat in Art 370 shall be construed to mean the governor. In the case of Mohammad Maqbool Damnoo v. State of J&K, Presidential Order C.O. 48 was questioned. The question that arose was whether using Art 370(1) (d) to “interpret” phrases in Art 370 amounted to ‘modification’ under Art 370(3). The court had observed that the Presidential Order C.O. 48 merely elucidated the Constitutional position that existed in the state, wherein Sadar-I-Riyasat had been functionally substituted by the governor and hence it did not amount to ‘modification’ under Art 370(3). Therefore, the question in the instant case is whether the legislative assembly is a “constitutional substitute” for the constituent assembly. If the answer is in the affirmative, the Presidential Order C.O. 272 would not have ‘modified’ Art 370; otherwise, it would have. If it has modified Article 370, then the order is unconstitutional, since a modification could only be effected by following the procedure under Art 370(3).

Constituent Power and Legislative Power

I will now prove that the legislative assembly of J&K is not a constitutional substitute of the constituent assembly of the state. The premise of my argument is based on the difference between the legislative power (power to enact laws) and the constituent power (power to modify the Constitution) of the legislature. In rigid constitutions, the procedure to amend the Constitution (special majority) is different from the procedure to legislate (simple majority).  The constitutional equivalent of the constituent assembly is the constituent power of the legislative assembly. Therefore, if the legislative assembly of J&K possesses the constituent power to recommend modification to Art 370, then the presidential Order would not have effected a modification.

Crucially, however, the legislative assembly of J&K does not possess the constituent power to recommend a modification. Consider section 147 of the J&K Constitution. Proviso 2 of section 147 declares certain provisions of the constitution unamendable: these are sections 3, 5, 147 of the J&K constitution, and provisions in the Indian constitution that are related to the special status of J&K (i.e, Art 370). Therefore, the legislative assembly does not have the constituent power to amend Art 370 or provisions related to the special status (s. 3 and 5 of the J&K Constitution).

Recommendation under Art 370- through exercise of Legislative or Constituent power?

This argument could be met with a counter-argument that the recommendation under Art 370(3) only requires exercise of legislative power, which shall be effected by passing a resolution through a simple majority. This counter argument will be negated through four arguments which are based on the structure of section 147, Art 370 and the J&K Constitution. Firstly, a slight modification of Art 370, (let’s say to increase the legislative and executive autonomy of J&K) is also permitted only by introducing a recommendation by the constituent assembly. Even if the recommendation only requires a simple resolution under Art 370, section 5 (extent of legislative and executive power of J&K and its interrelationship with India) will have to be amended by the legislative assembly of J&K for it to be in tune with the modified Art 370, for which the legislative assembly of J&K does not have the power. Secondly, when a special majority is required under section 147 for any constitutional amendment, it is ridiculous that an explosive decision such as determining J&K’s relationship with India could be made through a simple majority. Thirdly, the J&K constitution was enacted after the Indian Constitution came into force; consequently, the Constituent assembly members were aware that a recommendation was required under Art 370(3), but expressly prohibited the legislative assembly from modifying status. Fourthly, section 147 states that an amendment to the constitution can be effected only through the introduction of a bill, but proviso 2 of section 147 reads ‘no bill or amendment seeking to make any change..’. The inclusion of the phrase ‘amendment’ seeking to make any change is intended to cover the recommendation under Art 370(3). Hence, the legislative assembly of J&K does not possess the constituent power to modify the special status and hence it is solely within the realm of the constituent assembly.

Effect of section 147 of the J&K Constitution

 The question that follows is: what is the effect of unamendability of provisions related to special status of J&K? Should another constituent assembly be formed for this purpose? The express prohibition placed on the J&K legislature regarding the amendment of Art 370 could mean two things: either that Art 370 is a permanent feature of the Constitution and that the state of J&K shall indefinitely enjoy its special status, or that citizens of J&K did not confer on the legislative assembly the power to make modulations to the special status that they enjoy with regard to India. 

The unamendability effect is countered by two arguments which elucidates that the special status of J&K is an amendable provision of the Indian Constitution. Firstly, the Instrument of Accession, which is the basis of relationship between J&K and India, reserved the discretion of the Maharaja of J&K to enter into arrangements with India in the future (clause 7).  Secondly, neither Art 368 nor Art 370 of the Indian constitution expressly prohibits the modification of Art 370. This would mean that Art 370 is amendable. Therefore, the second effect stands tall, i.e., the people of J&K while entering into a social contract through the constitution with the state of J&K, reserved the right to modify the relationship that they hold with the Union of India. This means that only a plebiscite could modify Art 370.

The theory of dualist democracy proposed by Bruce Ackerman in his book, We the People, differentiates between lower law making and higher law making. He argues that higher law making is when the people directly participate in decision making during ‘constitutional moments’, and lower law making is when the people delegate their law making power to the legislature. The modification of the special status enjoyed by the state of J&K has been expressly regarded as a “constitutional moment” by the Constitution itself. This is reflected by the express prohibition upon amendment by any body other than the Constituent Assembly.

Transfer of Constituent power under Art 356(2)

Even if the argument on ‘modification’ fails in the Supreme Court on the ground that section 147 only prevents unilateral amendment by J&K to Art 370, and even if it is regarded by the judiciary that the legislative assembly of J&K holds the constituent power, my second argument lays certain legal impediments on the way of the parliaments’ exercise of power under Art 356(2). My argument is that transfer of power of the legislature of the state to the parliament under Art 356(2) on declaration of national emergency only permits the transfer of legislative power and not constituent power. The objective of transference of legislative power during a national emergency is only to prevent a state of temporary lawlessness. Therefore, the recommendation of the parliament is without force of law, since it is for the legislative assembly of the state to recommend on exercise of its constituent power (assuming, that is, that my first argument has failed).

In order to strengthen the above argument, the structure of Art 370 is taken into consideration. In contrast to the phrases ‘consultation’ and ‘concurrence’, which are used in Art 370 for decisions regarding the applicability of provisions of the Indian Constitution to J&K, Art 370(3) uses the phrase ‘recommendation’. The usage of the phrase ‘recommendation’ elucidates that the proposal shall come only from the state, excluding the interference of the centre on any degree. 

Conclusion

Through my arguments above, I have explained that the constitutional equivalent of the constituent assembly of J&K, is the constituent power of the legislative assembly. Since the legislative assembly does not hold the constituent power to modify the special status, the Presidential Order C.O. 272 has in effect ‘modified’ Art 370 through colourable exercise of power. If the judiciary fails to declare the order unconstitutional, my argument on transfer of legislative power under Art 356(2) regards the parliament’s recommendation as one with no force of law. Therefore, the Presidential Order C.O. 272 and all the subsequent activities that have its genesis in the presidential order are unconstitutional.