(This is a guest post by Pranay Lekhi.)
Clause 1(d) of Article 370 has been used to pass over 45 Presidential Orders to modify and progressively expand the powers of the Central Government with respect to Jammu and Kashmir since 1950. It is true that in State Bank of India v. Santosh Gupta, the Supreme Court noted that the marginal note stipulating that Article 370 is “temporary” has lost its meaning due to the dictum in Sampat Prakash v. State of Jammu and Kashmir. However, the implications of these judgments are not as consequential as they have been made out to be. As stated by Nariman J. in Santosh Gupta,the implication is simply that despite Article 370(3) reading “Constituent Assembly of the State”, the article will not cease to operate upon the dissolution of the Constituent Assembly, which happened in 1957. Therefore, the logical deduction is that despite the dissolution of the Constituent Assembly of Jammu and Kashmir, the procedure under Article 370 can still be used to issue Presidential Orders. Consequently, the Order of 2019 is an exercise of constitutionally valid powers to pass an order of a similar nature to those before it, as it “supersedes” the previous orders and makes applicable to Jammu and Kashmir all parts of the Constitution that were previously inapplicable, without exception.
In the same vein, it has been argued that the procedure under clause 3 has not been followed, which requires the recommendation of the “Constituent Assembly of the State” prior to such promulgation. Undoubtedly, since 1957 the State Assembly, which has been given autonomy in certain matters, is the Constituent Assembly. This is evident from a bare reading of Section 147(1) of the Constitution of Jammu and Kashmir, which vests the legislative assembly with the constituent power of amendments. The Supreme Court in Santosh Gupta (para 10) followed this logic while declaring that after the dissolution of the Constituent Assembly, an order under Article 370(3) can be made with the concurrence of the “State Government”. This must be seen in consonance with the Presidential Order of 1954 extending Emergency Provisions under Articles 356 and 357 of the Constitution of India to Jammu and Kashmir.
Furthermore, unlike other States, President’s Rule under Article 356 runs concurrently with Governor’s Rule under Section 92 of the Constitution of Jammu and Kashmir. This is important as Section 92 allows for far more expansive powers to the Governor: under Section 92(1)(a), the Governor may assume to himself all or any of the functions of the Government of the State. This action is not only legally justifiable but also has precedent: in 1986, then Governor of Jammu and Kashmir, Jagmohan, approved an order extending Article 249 of the Constitution of India to the State. This suggests that scheme of Governor’s Rule is unique and incomparable to other provisions of the Constitution, such as those concerning promulgation of ordinances. In sum, while the Assembly is in suspended animation, the Governor alone is embodied with the powers of the Constituent Assembly of Jammu and Kashmir. Hence, as the 2019 Order correctly notes, it is made “with the concurrence of the Government of Jammu and Kashmir.”
Additionally, Article 370 has not been used to either abrogate or amend itself. The provision provides for the President to modify any part of the Constitution for the purpose of an order issued under it, and in furtherance of such power, the 2019 Order amends Article 367. However, it is incorrect to suggest that Article 370 cannot be used to amend itself. Clause 1(c) talks of the applicability of Articles 1 and 370 to Jammu and Kashmir irrespective of any Presidential Order and Clause 1(d) makes other parts of the Constitution of India applicable only after the promulgation of such Orders.
In any case, these two forms of application of constitutional provisions in no way imply Article 370 cannot be used to modify itself. As noted by the judgment in Santosh Gupta, the powers “modify” under Article 370(1) have to be given “the widest possible amplitude” and not a restrictive meaning (¶ 14). This would imply that the President by order would also have the power to amend Article 370 itself. . Sub-Clause (3) of Article 370, which applies “notwithstanding” anything in the foregoing provisions expressly notes that
As for the delimitation and central administration, the sequitur follows. Once the whole Constitution is validly and equally made applicable to Jammu and Kashmir, Articles 2 and 3, without any privileges are also applicable. This implies that an Act of Parliament can modify the boundaries and separate an existing State. There does exist a provision for the expression of opinions by the concerned State’s government but there is nothing to suggest that the same was not done in the present case for the reason stated above.
Strangely, there has been some intensely revived citation of the Instrument of Accession signed by Hari Singh to suggest that there has been a violation of trust. This is incorrect as the Instrument, for this purpose, itself gave way to the Constitution of Jammu and Kashmir, which declared it an integral part of the Union of India unconditionally and progressively allowed for an expansion of the role of the Union in the region. This instrument is not very different from those signed by Junagarh, Hyderabad and the other Princely States. This is important because similar arguments on “violation of trust” were given by those vested interests who benefitted by measures such as privy purses amongst other patently undemocratic and discriminatory privileges. These have since been emphatically rejected.