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WHETHER AN ARTICLE FROM INDIAN CONSTITUTION BE SCRAPPED BY DRAWING POWERS FROM THE ARTICLE ITSELF?

Updated: May 19

Author: Radhika Mittal, III year of B.A.,LL.B from JEMTEC SCHOOL OF LAW(Affiliated to Guru Gobind Singh Indraprastha University) Delhi.


Abstract

“India is known for its rich culture and heritage in the world. For the maintenance of its integrity, it becomes essential that peace must prevail within the country. The Constitution of India, for this reason, finds itself as a guardian for promoting peace and security within the country. Article 370 of the Constitution of India was one such provision which was incorporated in the Constitution of India for maintaining religious and territorial harmony. Article 370 of the Constitution of India came into being through The Constitution (application to Jammu and Kashmir) Order, 1954.


Article 370 gave special status to the State of Jammu and Kashmir with regard to its independency as to the matter of making laws for its permanent residents. Article 370 was initially inserted as a temporary provision, but it continued to be in existence for more than 70 years due to political reasons. It was only after The Constitution (application to Jammu and Kashmir) Order, 2019 that the special status of Jammu and Kashmir was scrapped out.


The aim of this paper is to bring about the constitutionality of scrapping out the provision from the Constitution of India drawing inspiration from that provision itself. This paper throws light on the concept and origin of Article 370, the reason behind granting special status to the State of Jammu and Kashmir and how the government of India tried to solve the problem pertaining to making Jammu and Kashmir a part of India. Furthermore, the paper discusses the power of the president to modify, annul or scrapping out the constitutional provision by a simple passing order.


Keywords

Article 370, Jammu and Kashmir, Scrapping, Constitution, Article 35A.


INTRODUCTION

A Historic decision has been taken up by the Central Government on Special Status granted to the State of Jammu and Kashmir via Article 370 and Article 35A of the Constitution of India. Article 370 of the Constitution of India has been the most controversial right from its inception. Recently, on 5th August, 2019 President of India, Ram Nath Kovind issued a Constitutional Order titled The Constitution (application to Jammu and Kashmir) Order, 2019 superseding The Constitution (application to Jammu and Kashmir) Order, 1954 that gave birth to Article 35A which was added as an appendix I and which talks about the concept of Permanent Resident of the State of Jammu and Kashmir.


A temporary article of the Indian Constitution has been abrogated without hindering the supremacy of the Constitution of India. Article 370 of the Indian constitution which was added as a Temporary, Transitional and Special Provision under part XXI of the Constitution of India was found to be permanently temporary, but after the Presidential Order of 2019, the most disputed Article has been abrogated which was inhabiting in our Constitution for more than seven decades. The Presidential Order of 2019 which scrapped Article 370 re-established the hijacked power of the Parliament. Since the time of the institution of Article 370 in our Constitution, the powers of the Parliament have been limited. Now the supremacy of our Constitution has been restored and the powers of the Parliament took its complete shelter again.


WHAT IS THE CONCEPT OF ARTICLE 370 AND HOW DOES IT ARISE?

The idea of Article 370 was incorporated by Jawaharlal Nehru, the then Prime Minister of India through the Delhi Agreement which was signed with Sheikh Abdulla, the then Prime Minister of Jammu and Kashmir. At the time of Partition of India, the Princely State of Jammu and Kashmir chose to remain Independent but when Pakistan tried to invade Jammu and Kashmir, the state of Jammu and Kashmir signed an Instrument of Accession with India on 26 October 1947 leaving in hands of India the power to deal with matters related to Defence, communication and external affairs of the State of Jammu and Kashmir. Instrument of Accession which was totally unconditional, voluntary and absolute was accepted by the then Governor General, Lord Mountbatten on October 27,1947. Since then, the State of Jammu and Kashmir became a part of India.

The 11-judge bench in the Supreme Court held in H. H. Maharajadhiraja Madhav Rao v. Union of India that the Instrument of Accession was an Act of State on the part of the Sovereign rulers of a princely state, and India was strictly governed by the Instrument of Accession.


Article 370 was added as a Temporary, Transitional and Special provision under part XXI of the Constitution of India. Prof. M.P. Jain observes two characteristic features of the special relationship between India and Jammu and Kashmir:

“(1) The State has much greater measure of autonomy and power than enjoyed by the other States and

(2) Centre jurisdiction within the State is more limited than what it has with respect to other States.”


WHAT IS THE PROBLEM THAT HINDERS JAMMU AND KASHMIR TO BE A PART OF INDIA?

The problem is that when Jawaharlal Nehru approached Mohammad Ali Jinnah, the then Prime Minister of Pakistan, he denied the Instrument of Accession to be legally valid. Jawaharlal Nehru then took the help of the United Nation which issued a UN charterin 1947 and which allowed states to have a plebiscite in the state of Jammu and Kashmir to determine with whom the people of Jammu and Kashmir want to join, provided that two conditions need to be satisfied: -


1. Pakistan Army has to withdraw from the area of Jammu and Kashmir.

2. The Indian army has to limit its area of army.


But none took place, so the idea of Plebiscite was not achieved. The question of merging the State of Jammu and Kashmir with any of the Nation remained stagnant.


Another clause that hinders the State of Jammu and Kashmir to be a part of India is that Article 370(3) of the Constitution of India states, “Notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: 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.”


Here, the recommendation from the Constituent Assembly is necessary, but the critical situation is that the Constituent Assembly of the State of Jammu and Kashmir dissolved itself in 1957. Also, the State of Jammu and Kashmir was under Governor’s Rule since 2018 and later under President’s Rule. So again, the concept of the union of the State of Jammu and Kashmir with India remained undecided.


STEP WHICH GOVERNMENT OF INDIA HAS TAKEN TO SOLVE THIS PROBLEM?

Under Article 370(1) of the Constitution of India which starts with a non-obstacle clause (meaning that no other Constitutional Provision binds it) the President has been provided with a special power. Provided that it requires concurrence of the State.


Article 370(1) empowers the President to make exceptions and modifications when applying the provisions of the Constitution of the State of Jammu and Kashmir. The word exceptions and modification cannot be interpreted by reference to the meaning given to them when they occur in the other provisions of this Constitution.


But the State was under President’s Rule since 2018, so the power to make laws for the State vest in the Indian Parliament under Article 356 of the Constitution of India. So, after the President Rule in the State of Jammu and Kashmir, the power to make laws of the State of Jammu and Kashmir vest in the hands of the Indian Parliament.


In the Supreme Court, the challenge to Article 370 of the Constitution of India, filed in the form of a Special Leave Petition by Kumari Vijayalakshmi Jha in 2017, raised an interesting issue before the Court. Jha, whose prayer was first dismissed by the Delhi high court earlier, argued that Article 370 was a temporary provision which had lapsed with the dissolution of the J&K Constituent assembly on January 26, 1957. She also sought a declaration from the Supreme Court that the constitution of Jammu and Kashmir, in view of the lapsing of Article 370, was void, inoperative and ultra vires.


According to the speech by Dr. Shyama Prasad Mookerjee at Kanpur (29th December 1952), Gopalaswami Ayyangar had made a statement in the Constituent Assembly that with the intention of keeping the door open for the day when Jammu and Kashmir would merge with India and fully accept the Constitution of India, he had categorized Article 370 as a temporary provision. On 27th November 1963, Pandit Nehru confirmed on the floor of the Parliament his earlier statement: “Samvidhan ki dhara 370 ghiste ghiste ghis jayegi.” (Article 370 of the Constitution would disappear by being eroded progressively.) Till date that hope of Nehru hasn’t been fulfilled, but instead Article 370 has become permanently temporary.


Interpretation of - provisions in respect of Jammu and Kashmir state- section 21, general clause act is applicable- power of making orders under article 370 can be exercised by the president from time to time.


In the Presidential Order, titled the Constitution (application to Jammu and Kashmir) Order, 2019 President of India amend Article 367 and included Clause (4)(d) to it. Coming to Article 367 of the Constitution of India which is meant to act as a guide, it helps the interpretation of certain laws. If you are able to change the provisions of Article 367, you will be able to change other provisions without having to do so directly, because you simply change their interpretation.


Article 367 provides “Interpretation".

(1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.


(2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a Governor, as the case may be.


(3) For the purposes of this Constitution, a foreign state means any State other than India: Provided that, subject to the provisions of any law made by Parliament, the President may by order declare any State not to be a foreign State for such purposes as may be specified in the order”


It is to this article that the presidential order adds a new clause to help interpret provisions applicable to the state of Jammu and Kashmir.

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.” This clause alters the interpretation of article 370, switching the word “Constituent assembly” with “Legislative assembly” in the proviso to article 370(3).


Here what the Government did was with the help of the word “modification” in Article 370(1) of the Constitution of India, the President amend Article 367 of the Constitution of India and with the help of Article 367 of the Constitution of India they change the interpretation of Article 370(3) of the Constitution of India which was the main reason behind unsolved Article 370.


NOW THE POINT IS WHETHER PRESIDENT ALONE CAN MODIFY THE CONSTITUTIONAL PROVISIONS SIMPLY BY PASSING AN ORDER AND WITHOUT CONSTITUTIONAL AMENDMENT BILL?

This question has been answered by the Supreme Court in its judgment in Puranlal Lakhanpal v. President of India and others. In this case the judge bench held that. “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 Article 370(1) and in that sense it includes an amendment. There is no reason to limit the word "modifications" as used in Article 370 (1) only to such modifications as do not make any "radical transformation". "We are therefore of the opinion that the President had the power to make the modification which he did in Article 81 of the Constitution.” The Court said the term “modification” as it appears in Article 370(1) gives the President powers to effect Substantial Modification to the provision of the Indian Constitution that applies to Jammu and Kashmir State. This quirk of Indian law means that the Constitution can actually be changed without having to pass a Constitutional Amendment, as long as it deals with the State of Jammu and Kashmir.


The President may subsequently make amendments and modifications in such orders.


Article 35A was not passed as per the amending process given in Article 368, but was inserted on the recommendation of Jammu and Kashmir’s Constituent Assembly through a Presidential Order. It was added as an appendix I in the Indian Constitution.


So, the question Whether an Article from the Indian constitution can be scrapped by drawing powers from the Article itself is proved on the following points: -


First, the Article of Indian Constitution itself is having the provisions to draw powers as it was in case of Article 370(1) which talk about “modification” and Article 367 which enables the President to interpret the provisions of the Constitution of India until and unless they are not contrary to law, which they are not.


It has been argued that Article 370 was repository to Contractual Agreement made between the State of Jammu and Kashmir and Indian state. However, under International law the Contractual Agreement is binding only between two Sovereign States. In the present case the state of Jammu and Kashmir was not Sovereign after it signed Instrument to Accession with the Indian state. Hence, the concept of Contractual Agreement stands null.


Scrapping of Article 370 can only be explained politically. In US Constitutional law, such questions are governed by the doctrine of political questions which state that some situation can only be handled politically. In the Indian context, Supreme Court has adopted this doctrine with limitations such as in case of Aadhaar Verdict in which it was held that matters related to State policy are non-justifiable and are therefore out of domain of legal scrutiny and Judicial Review.


The situation of Jammu and Kashmir State and its dynamics with the Indian State are again Exclusively matters of policy and politics and there is nothing much the legal system can do about it. The important ramification of understanding the situation as that of policy and politics rather than that of law and Constitution is that the entire debate on the legality of the action of the Government is rendered infructuous.


The issue had to be decided through an executive action simply because, executive exclusively wields and manifests the real Sovereign authority of the State, and when it has signalled through a proclamation, its intent, the requirement of legality is that of prima facie relevance. Here all the questions of legality of the steps taken by the Government are proved. Hence, the step is totally justifiable.


All the steps of the Government paved the way of the Supremacy of the Constitution of India. now there won’t be two Constitution in a single nation, there won’t be two Flag in a nation, no concept of Permanent Resident, no hijacking of the powers of the Parliament. And the most important there won’t be any statement in any law of the Country that “this act shall be applicable in India except the State of Jammu and Kashmir.”


The Section 3 of the Constitution of Jammu and Kashmir states, The State of Jammu and Kashmir is and shall be an integral part of the Union of India.” The territory of the State shall comprise all the territories which on the Fifteenth Day of August 1947 were under the sovereignty of the Ruler of the State.


Section 147 empowers the State legislature to amend the Constitution of the State except the amendment of Section 3, 4, 5, 147 or the provisions of the Constitution of India as applicable in relation to the State. No reference with regard to Article 370 of the Indian Constitution is made in the Constitution of Jammu and Kashmir.


Hence, all the steps of the government are Justifiable and Constitutional since the Article itself is giving the power to amend the Article, no matter to which provision. In the abrogation of Article 370 of the Constitution of India all the amendment is made within its authority.


CONCLUSION

The grant of special status to Jammu and Kashmir was neither desired nor required. It continued to for a such a longer period just for politico-religious purpose. The Status of Jammu and Kashmir was kept on using as a means to play with the sentiments of the general public. The act of the president issuing order for abrogating Article 370 from the Constitution of India is totally justified on the ground that Article 370(3) empowers the president to abrogate the provision by notification in official gazette.


The only condition required was recommendation of State’s Constituent assembly. Since, the State Government of Jammu and Kashmir cease of exist. Therefore, issuance of order by the President solely is justified.