(This is a guest post by Amlan Mishra.)
Two stances have been taken by those who believe in the unconstitutionality of the Presidential Order amending Article 370. First, that Article 370 can be abrogated, but only through a constitutional amendment or the people’s consent. The presidential order is problematic because it does indirectly cannot be done directly; therefore is a colourable exercise of power. The Second stance is one which relies on the work of AG Noorani and the Constitutional Assembly debates to take a strictly textual view that the Constituent Assembly being dissolved, no authority executive can exercise the power conferred on the Constituent Assembly to decide on Article 370.
The commonality in both these approaches is that the Kashmir issue should not be decided by the executive unilaterally, and by a colourable exercise of power. However, two cases of the Supreme Court pose a direct challenge to these ways of thinking. In this post I will deal with these two cases and show how they are inapplicable to the present issue, or deserve to be overruled or distinguished. In so doing, I will rely on implied constitutional limitations and build a case for the unconstitutionality of the Presidential Order.
Sampat Prakash v. State of J and K (1968): a check on the President’s power
In Sampat Prakash, the petitioner had challenged the non-application of Part III of the Constitution to Kashmir’s Preventive Detention laws. The modified Constitution of India as applicable to Kashmir had, vide Article 35C, excluded such application to Preventive Detention laws. The petitioner submitted that the delegation of power to the President to amend and modify the Constitution as applied to Kashmir could not be construed so broadly as to take away fundamental rights. The court however disagreed, giving wide power to the President.
“We are, therefore, ‘of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word “modification” used in Art. 370(1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Art. 370(1) only to such modifications as do not make any “radical transformation.”
Sampat Prakash was reiterating the position of law already set out in Puran Lal Lakhanpal v. State of J and K, which had held that indirect election(as opposed to a direct election in rest of India) to the Lok Sabha from the state of Jammu and Kashmir could be effected through Article 370(1). Notice that the ratio of both these cases, read broadly, proposes that the power to modify the Constitution of India as applicable to Kashmir, has no boundaries/guidelines. Is this power to legislate given to the executive to be completely unhindered? As pointed out in this blog the text of Article 370 itself provides that it cannot be used to amend itself. However, I will argue that there is a more crucial implied limitation on this exercise of the President’s power.
Consider, for example, Samatha v. State of AP, where the Supreme Court held that a legislative power to the constitutional executive (Governor in that case) to ‘modify, amend and regulate’ laws had some implied limitations. The question was whether 5(2) (a) of the Fifth Schedule, which provided that the governor could ‘regulate’ allotment of land to STs in Scheduled Areas, could be used to give away tribal land to non-tribals. The fifth schedule allows the governor to modify laws as applicable to the Scheduled Areas of the state and regulate the allotment of land in these Scheduled Areas. The court held that a perusal of the rest of the schedule made it clear that the intention of the framers behind the Fifth Schedule was to prohibit devolution of land to non-tribals. Marshalling Constitutional history of special protection to tribal community and Constituent Assembly debates, the court read into the fifth schedule an implied limitation thus:
“In the light of the provisions contained in clause (a) of sub-para (2) of para 5, there is implied prohibition on the State’s power of allotment of its land to non-tribals in the Scheduled Areas.”
Notice that Article 370 of the Constitution similarly gives the President to alter and modify the Constitution as applicable to the State of J and K. The text of Article 370 shows that the President is to merely legislate on what this special status would look like. Each clause gives the sense that the final word shall be of the people of J and K. Article 370(2) actually envisions laying all decisions before the Constituent Assembly of Kashmir A perusal of Article 370 should make it clear that it seeks to preserve the ‘consent’ of the people of Kashmir. The Constitution Assembly debates of N Gopal Ayyangar show as much. This puts an implied check on the President’s amending power by making it contingent on the consent of the people of Kashmir. Even though the Constituent Assembly of Kashmir has been dissolved, the centrality of consent in the provision should be an implied limitation. Thus it is best to confine the ratio of Sampat Prakash that ‘radical transformation’ is possible to the facts of that case.
What the present order does it two things. Firstly, it overrules all prior Presidential orders made under Article 370(1), thereby effectively ending the special status of Kashmir. Secondly, it does this without any sliver of people consent. Thus it violates the implied limitation of consent inherent in Article 370.
Mohammad Maqbool Damnoo v. State of J and K (1972): the backdoor of Article 367
In 1965, the office of the indirectly elected Sadr-e-Riyasat was replaced with the office of the Governor, who was to be unelected, vide an amendment in the J and K Constitution. The amendment was made by the Sadr-e-Riyasat, who had the power to amend the Constitution of J and K. The Presidential order giving effect to this added a ‘legal fiction’ clause in Article 367 that ‘Sadr-e-Riyasat’ was to be read as ‘Governor’. Notice that similar to the present presidential order, it sought to indirectly amend Article 370. The 1965 amendment has been dismissed as ‘clarificatory’ i.e. merely giving effect to a legal fact. The court also held similarly:
“But, as we have already said, the explanation had become otiose and references to the Sadr-i-Riyasat in other parts of the Constitution had also become otiose. There were two alternatives; first, either to leave the courts to interpret the words Government of the State” and give it its legal meaning, or secondly, to give the legal meaning in the definition clause. What has been done is that by adding cls. (aa) and (b) a definition is supplied which the Courts would have in any event given. Therefore, we do not agree that there has been any amendment of art. 370(1) by the back-door.”
However, dismissing this amendment as clarificatory does not engage with a crucial idea. The post of the Sadr-e-Riyasat was an indirectly elected post, which was done away by an amendment made by the Sadr-e-Riyasat himself. Can an elected post which carried with it the power to amend the J and K constitution be replaced with an appointed one, that too through a presidential order? Thus the amendment was more not just clarificatory and changed the elective nature of the office as provided for in both the original Indian and the J and K Constitution.
The distinction between the power to amend the constitution i.e. ‘constituent’ power and ‘legislative power’ must have been known to the court when Damnoo was decided. Both Shankari Prasad(1951) and Sajjan Singh(1965) had sufficiently delineated the difference, but had held that Parliament’s constituent power to amend the constitution had no implied limitation. But this concept had been thrown into disarray after the Golak Nath case, which held that amendments were ‘law’ under Article 13, and that the Indian Constitution did not envision any separate ‘constituent power’. J. Hidayatullah went to the extent of saying: ‘What then is the real distinction between ordinary law and the law made in the exercise of constituent power? I would say under the scheme of our Constitution none at all.’ Given this doctrinal muddle and the subsequent 24th Amendment, the court in Damnoo must have trod safely in not relying on any of those cases, or even entering such a discussion.
It was only in that in 1973, that Kesavananda Bharati developed fully and clarified the difference between constituent power and constituted power. The parliament exercised constituent power under Art. 368 subject to some implied limitation that it cannot ‘destroy basic features of the original constitution. A better way of distinguishing Damnoo, then, is not to say that it was ‘clarificatory’, but to say that it needs to be overruled in light of the sufficient clarity we now have about this crucial idea of sovereignty. The constituent power of the people of Kashmir and the people of India cannot be said to have been overruled, by a presidential order or an amendment in the J and K constitution. As the court has held in Kihoto Holohan and Kuldip Nayar, the democratic nature of offices is a basic feature which cannot be taken away not even by amendment, let alone executive dictats. To that end, Damnoo deserves not just to be distinguished, but to be overruled. In fact the High Court of J and K has observed that the 1965 amendment violates the basic features of democratic election and the constituent power of the people of Kashmir (in Para 24). But it shied away from declaring it unconstitutional, as that was not the issue before it.
That leads us to this Presidential order. Here similarly, the constituent power of the people of Kashmir in granting themselves autonomy has been frustrated by a Presidential order. The only tokenistic concurrence provided here is by the Governor of the state, who himself operates ‘during the pleasure of the President’. The distinction between representative, constituted and constituent power as given in Kesavananda Bharati should guard us against changing Article 370 through a presidential order.
I have shown how the two cases which are cited in favour of Article 370 need to be overruled or distinguished in light of subsequent jurisprudential clarity about implied limitations in the constitution.