Article 370 hit by a different connotations of Rule of Law & Procedure Established by Law
Noor UL Shahbaz
On 11 December 2023, five senior-most judges of the Supreme Court of India upheld the Union government’s action to abrogate Article 370, which granted special status to Jammu and Kashmir State. The Court further refused to comment on the constitutionality of the reorganisation of J&K state into two Union Territories: Jammu, Kashmir and Ladakh. What led to the decision of Supreme Court was that India underwent a major constitutional and political change on August 05, 2019, as the Central government, through a Presidential Order, set in motion the revocation of Article 370. The order has been followed by a Bill through which the state of Jammu and Kashmir ceases to exist. The government has justified its move by arguing that Article 370 was the root of terrorism in J&K, had ruined the state, stalled its development, prevented proper health care and education and blocked industries; and it was, therefore, necessary to integrate the region with the rest of India and develop it. It has also asserted that its move has popular support in Jammu, Ladakh and even in most parts of Kashmir.
When you talk about law, then it must be kept in mind that the historical facts can’t be faded or painted by the new expressions to the illuminating legal concepts “rule of law and procedure established by law”. The princely state of J&K was a “sovereign state” as of 15 August 1947 as per the law creating India and Pakistan. It was in terms of such law that the then Ruler of J&K, Maharaja Hari Singh, who was the sole repository of power in the state, chose to accede to India through the accession instrument of 26 October 1947. Such accession by the Ruler, was limited only in matters of external affairs, communications and defence and certain ancillary matters. The remaining subjects were within the domain of J&K government. The accession instrument expressly declared that nothing therein would affect the continuance of the sovereignty of the Ruler in or over J&K and these conditions were reflected in Article 370 by the Presidential Order of 1954. Another provision inserted by this 1954 Order was the proviso to Article 3 of the Indian Constitution. This provision mandates that “no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.” In other words, J&K has not only merged its territory into the Indian Union, but it has also explicitly preserved its territorial integrity and identity. How can it be denied that the then Prime Minister of India “Jawahar Lal Nehru” publicly promised to the people to destine their future by their “free sovereign will” either to accept India or Pakistan. This promise was made after the instrument of accession was signed that means the future “Sovereign will” of the people was ratified by the Constitutional authority of India and the resolutions for that purpose were accordingly been adopted by the United Nations Security Council.
Insertion of Article 370 with regard to State of Jammu and Kashmir means acceptance of Sovereign status within the Sovereign document itself (Constitution of India). This Article recognised the integral sovereignty of Jammu and Kashmir. The question is if the special status had to be removed, then for the same process procedure established by the grundnorm had to be followed and no other mean could have been adopted that will lead to the presumption of the violation or transgression. Article 370 itself mandated a recommendation of the State Constituent Assembly before the President of India can declare it inoperative. The State Constituent Assembly was dispersed after framing the Constitution of Jammu & Kashmir in 1957, without, however, making any such recommendation. Nor can a recommendation of the State legislature be a substitute for the requisite recommendation of the State Constituent Assembly. It, therefore, follows that the competence of any organ of the Indian State to declare Article 370 inoperative no longer exists. The government of India vide the presidential order, 2019 has amended Article 367 of the Constitution which is the interpretation clause. As per the amended Article, the expression ‘Constituent Assembly of the State’ as used in the Constitution is now to be read as ‘Legislative Assembly of the State’. This in effect means that under Article 370, the President now requires the consent of the Legislative Assembly of the State and not the Constituent Assembly.
An important question that is bound to arise is why the government amended Article 367 (interpretation clause) and not Article 370 itself. The answer is twofold. First, the erstwhile language of Article 370(3) did not allow the President to amend it without the “concurrence” of the Constituent Assembly; therefore the government cleverly changed the meaning of the expression ‘Constituent Assembly’ itself, to the ‘Legislative Assembly of the State’, that means a diversion to procedure established by law. Second, since the last few months of 2019, J&K has been under the Governor’s Rule which means that the Governor has the power to assume to itself the functions and powers of the Government of the State (Section 92, Constitution of J&K). The Central government can argue that since, the powers of the Government of the State were currently with the Governor (including powers of the Legislative Assembly) he could grant consent as required under Article 370 for ceasing the operation of the provision. The Presidential Order is tantamount to the President doing indirectly what he cannot do directly i.e. amending Article 370 through Article 367 because he has no power to amend Article 370 directly. Is this the procedure established by law or rule of law to do indirectly what you can’t do directly, what you are prohibited to do by violating the power of other sovereign body to whom you have recognised.
As per Section 92(1) of the J&K Constitution (the same Constitution which was drafted by the Constituent Assembly recognised by the Union of India), every proclamation made by the Governor during the Governor’s Rule needs to be tabled before the State Assembly as soon as it is convened. The Governor can only take temporary actions and actions with permanent consequences are to be taken by the State Assembly only. The justification behind such a rule is a basic principle of democracy i.e. the laws that govern citizens are made by their elected representatives which are the members of the Assembly and not a Governor who is appointed by the Central Government. The Governor’s consent brings a permanent change to the governance of the state, which it is not empowered to do. The Hon’ble Supreme Court in Prem Nath Kaul v. State of J&K (1959), while discussing the Article 370, opined that our Constitution makers assigned great importance to the final decision of the Constituent Assembly under Clause 3. In my opinion, the justification for such an importance could be that the makers wanted to vest in the Constituent Assembly, the task of protecting the State from acts of the Central Government, that are not in the state’s interests. The Governor could not have acted as the Guardian envisaged under the Article, as it was answering to its political appointee and would have the interest of the Centre in mind as against the interests of the state. The government has time and again reiterated that Part XXI of the Constitution which contains Article 370 is temporary in nature as evidenced from its title i.e. Temporary, Transitional and Special Provisions. While this is true, one cannot ignore that this Part is as integral to the Constitution as any other, as held by the Supreme Court in Raghunath Ganpat Rao v. Union of India (1994).
Conclusion: One can say that the decision by the Supreme Court of India is in the interest of dominion of India to protect the Sovereignty and Integrity of India but at the same time when we have to uphold the sacred principle of “rule of law” then the valid agreements and sacred reservations made with the sovereign states under the supreme law of the country must be upheld at any cost that determines the real commitment to uphold the “rule of law” otherwise it is difficult to say that there is “independence of judiciary” because validity of judicial decision is one thing but it’s fairness and rightness is something different.
Note: The views above are my own and do not belong to the institution where I work.
Noor UL Shahbaz (M. A, LL.M GOLD MEDALIST),Lecturer and former acting Principal at Sopore Law College , can be reached at im1415151819@gmail.com
