Guest Post: The Supreme Court’s Article 370 Judgment – Unilateral Declarations and Self-concurrence as Constitutional Practice

[This is a guest post by Kieran Correia.]

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On 11 December, a five-judge bench of the Supreme Court handed down a unanimous judgement on the abrogation of article 370 and the subsequent demotion of Jammu and Kashmir’s statehood. Finding for the Union in all issues but one, the Court’s verdict – three judicial opinions, with Chandrachud CJ’s opinion being in the majority (joined by Kant and Gavai JJ) and Kaul and Khanna JJ authoring separate concurring opinions – is significant, with its repercussions likely to shape Indian federalism in the years to come.

We might be tempted to forget that In Re: Article 370 is part of a larger story – of power increasingly centralized and concentrated in a Constitution already notoriously centralized and concentrated. While we must analyse the specificity of the Court’s opinion, a long line of jurisprudence has created the conditions of possibility for our present moment. It is important that we bear this in mind even as we read the Constitution against the grain and attempt to recuperate more democratic political structures.

Issues

Chandrachud CJ frames eight issues for the Court’s consideration, which I have reproduced briefly below:

1. Whether article 370 was a temporary provision;
2. Whether the amendment to article 367 – substituting “Legislative Assembly of the State” for “Constituent Assembly of the State” in article 370(3) – was valid;
3. Whether the entire Constitution could be extended to Jammu and Kashmir under article 370(1)(d);
4. Whether the abrogation of article 370 by the President under article 370(3) is constitutionally valid absent the recommendation of the Constituent Assembly of the State;
5. Whether the declaration of Governor’s Rule and the subsequent dissolution of the Legislative Assembly are constitutionally valid;
6. Whether the emergency proclamation and its subsequent extensions are constitutionally valid;
7. Whether the Jammu and Kashmir Reorganisation Act 2019 – which bifurcated the State into two Union Territories – is constitutionally valid; and
8. Whether the conversion of the State into a Union Territory while a state of emergency subsisted constitutes a valid exercise of power.

We can bracket the first four issues – which deal with the abrogation of article 370 – into one larger class, the fifth and sixth issues – which deal with emergency rule in the State at the time – into another, and the last two issues – which concern Jammu and Kashmir’s statehood – separately. We will unpack the first class of issues here.

The Events of August 2019

Before I begin, a brief summary of the events challenged by the petitioners is in order.

The President of India issued Constitutional Orders 272 and 273 under article 370(1) on 5 and 6 August 2019 respectively. These orders reworked the relationship between the Union of India and the State of Jammu and Kashmir by amending article 370, which had hitherto set the terms of this relationship.

While articles 1 and 370 themsleves applied to the State – as provided in article 370(1)(c) – article 370(1)(d) declared that “such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify” (emphasis added). A proviso appended to this clause mandated the “concurrence of [the Government of Jammu and Kashmir]” in all matters apart from those specified in the Instrument of Accession.

Article 370, in clause 3, also laid down its mode of amendment or abrogation: the President could, via notification, amend or render inoperative the article. A crucial proviso to the clause stipulated the recommendation of the Constituent Assembly of the State of Jammu and Kashmir as the condition precedent of such notification. However, the Constituent Assembly of Jammu and Kashmir was dissolved in 1957. A bare reading would yield the conclusion that article 370 is unamendable and unrepealable, unless a new Constituent Assembly is convened (or the old one reconvened).

This amendment track was circumvented. The President issued CO 272 on 5 August, adding a new clause to article 367. The newly inserted article 367(4), inter alia, read the phrase “Constituent Assembly of the State referred to in clause (2)” in article 370(3) as “Legislative Assembly of the State.” What this achieved is it made the recommendation of the state legislature the condition precedent – obviating the need to set up a new constituent assembly.

On the heels of this notification, the Rajya Sabha – since the powers of Jammu and Kashmir’s legislature were vested in Parliament under an Article 356 Proclamation – approved a Statutory Resolution recommending the President render inoperative all of article 370 except for a clause stating that the Constitution would apply to the state, notwithstanding anything to the contrary. The next day, the President issued CO 273, whereby, under the authority of article 370(3) read with article 370(1), article 370 was abrogated.

Constituent Assemblies and Interpretive Gymnastics

CO 272’s substitution of “Legislative Assembly of the State” for “Constituent Assembly of the State” was found to be invalid. As Chandrachud CJ writes, “Paragraph 2 [of CO 272] couches the amendment to Article 370 in the language of an amendment or modification to Article 367 but its true import is to amend Article 370” (para 382). Moreover, CO 272 made two different changes to the proviso to article 370(3): first, it replaces the Constituent Assembly with the Legislative Assembly as the recommending body; and secondly, it makes a new arrangement at variance with that specific Constituent Assembly (para 383).

However, this did not, to the Court, pose any hindrance to the abrogation of article 370 with CO 273. This is because the Court read the proviso to article 370(3), which stipulated the recommendation of the Constituent Assembly as a condition precedent, to mean that the Assembly’s recommendation was not binding on the President – in whom the “substantive power” of the provision was vested (para 346. d.). This would go on to form the basis – along with the lack of any mala fides – of its holding that CO 273 was constitutionally valid (para 430).

Chandrachud CJ supports this interpretation through the history of the ratification process as decided by the Ministry of States. However, article 370 – and the proviso to article 370(3) in particular – has a distinctive history, which the Court does not acknowledge here. Article 370, as Petitioners submitted, had the participation and consent of the people at its heart. The inclusion of the proviso, then, was no accident – it served the specific purpose of keeping the People centre-stage. This history of the proviso goes unnoticed and, with respect, renders the Court’s analysis of article 370(3) incomplete and incorrect.

Moreover, even if the Constituent Assembly’s recommendation was not intended to be binding on the President, the Court does not entirely address the fact that a recommendation from the Assembly is necessary before the President issues a notification under article 370(3). In responding to this, Chandrachud CJ writes, “[The Constituent Assembly of Jammu and Kashmir] was not intended to be a permanent body but a body with a specific remit and purpose. The power conferred by the proviso to Article 370(3) was hence something that would operate in a period of transition when the Constituent Assembly of Jammu and Kashmir was formed and was in existence, pending the drafting of the State Constitution” (para 346. d.).

This reasoning ignores how the Constitution’s drafters explicitly stipulated the recommendation of the Constituent Assembly as a precondition in the clause governing the article’s abrogation. That is to say, if we imagine article 370 as a timeline, with the gradual extension of the provisions of the Constitution at different intervals, abrogation would be, temporally speaking, the last event. For the clause to nonetheless require the Assembly’s recommendation belies the Court’s argument that the Assembly’s temporary nature translates into the President possessing the power to unilaterally issue a notification under article 370(3).

What, then, of article 370’s transience? Does the dissolution of the Constituent Assembly transform article 370 into a permanent provision? The Court points out that article 370 was inserted in the Constitution as a temporary provision. It infers from this that the dissolution of the Constituent Assembly could not render the article permanent (para 346. f.). However, the stated temporariness of a provision cannot override – even as an interpretive guide – the specific and explicit conditions that must be satisfied for it to be amended or repealed – even if it places “temporary” articles on the same level as other provisions in the Constitution.

Moreover, the Court does not engage the alternative argument of reviving the Constituent Assembly advanced by Petitioners. The dissolution of the Assembly does not render the article permanent. A historical reading of article 370(3) indicates that more than the Constituent Assembly as an institution, it is the constituent power of the people of Jammu and Kashmir that was represented. Therefore, keeping this in mind, a new Constituent Assembly that is the expression of the people’s sovereignty would also satisfy the requirements of article 370(3), while still honouring the distinction between temporary and permanent provisions.

First as farce, then as tragedy

The other relevant portion of CO 272 was the application of all the provisions of the Constitution to the State of Jammu and Kashmir. While part of Petitioners’ challenge hinged on whether the Constitution can be extended wholesale – which the Court rejected, citing its gradual extension over the years – the submissions also pointed out the absurdity of the President seeking his own concurrence in issuing a notification under article 370(1)(d). The Court acknowledges, too, that “[t]he purpose which the [condition mandating the concurrence of the state government] seeks to serve (collaboration between the federal units and representative democracy) would be lost if the President secures his own concurrence while exercising the power” (para 426).

However, the Court comes up with an inventive reading of articles 370(1)(d) and 370(3) to find CO 273 valid, as CO 272 – to the extent that it replaced the recommendation of the Constituent Assembly with that of the Legislative Assembly – was found invalid. “The effect of applying all the provisions of the Constitution to the State through the exercise of power under Article 370(1)(d),” Chandrachud CJ observed, “is the same as an exercise of power under Article 370(3) notifying that Article 370 shall cease to exist, that is, all provisions of the Constitution of India will apply to the State of Jammu and Kashmir, except for the fact that the former can be reversed while the latter cannot” (para 427. a.).

As a result of this, Chandrachud CJ continued, invoking Mohd Maqbool Damnoo v State of Jammu and Kashmir, “the principle of consultation and collaboration underlying the provisos to Article 370(1)(d) would not be applicable where the effect of the provision is the same as Article 370(3). Since the effect of applying all the provisions of the Constitution to Jammu and Kashmir through the exercise of power under Article 370(1)(d) is the same as issuing a notification under Article 370(3) that Article 370 ceases to exist, the principle of consultation and collaboration are not required to be followed” (para 427. d.) (emphasis added). The concurrence of the state government under article 370(1)(d), therefore, is not required.

In other words, the Court finds that since the outcome of the power exercised under article 370(1)(d) here – extending all the provisions of the Constitution to the State – is the same as a prospective outcome contemplated under article 370(3) – after an abrogation notification, the entire Constitution will naturally apply to the State – the President can seek his own concurrence because the President can anyway, as the Court discussed earlier, unilaterally issue a notification under article 370(3). Farce morphs into tragedy somewhere in the process.

The Court is, through this interpretive exercise, importing a different condition from a different clause in the article – noting, the entire time, the difference between notifications issued under the two provisions. A notification under article 370(3), irreversible as it is, should require a more rigorous condition. However, since the Court has interpreted the proviso to article 370(3) to denude the Constituent Assembly of any power, a notification which finally extended the Constitution to the State would require a lower threshold to cross. It is to avoid the illogicality of its reading of article 370(3) that it engages in a similarly absurd reading of article 370(1)(d).

Concluding remarks

Constitutions are, to state the obvious, documents about power. At their best, constitutions attenuate and disperse power – not just naked state coercion but also, for example, the power of federal governments and parliaments. Constitutions, however, can also consolidate and concentrate power, allowing large institutions to impose their will on individuals or smaller institutions.

In Re: Article 370 comprises, at its core, questions about who wields power, what safeguards we erect in the face of power, and how one ought to wield power. Unfortunately, however, the Court has opted for a vision of the Constitution that blinds itself to brazenly disingenuous constitutional acts – practices that would enrich incipient scholarship on “abusive constitutionalism.”

The abrogation of article 370 presented one of the most seemingly complicated constitutional issues before the Court. The Union Executive and Parliament engaged in practices that, endorsed by the highest court in the land, will reverberate across India’s constitutional architecture. In Re: Article 370 was the Court’s opportunity to ensure the incredible power that the Constitution vests in the Union Executive and Parliament is not abusively exercised and to read the Constitution in a manner that diffuses some of that power. Regrettably, those will be the tasks of a future Court.