Kashmir: Why amendments to Article 370 may not withstand judicial scrutiny

J&K has not had a govt for months and the Modi govt has consulted the governor who is its own representative. It has effectively consulted itself and it is hard to see how this is legal

"I say with all respect to our Constitution that it just does not matter what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion...We have fought in good fight about Kashmir on the field of battle... (and) ...in many a chancellery of the world and in the United Nations, but, above all, we have fought this fight in the hearts and minds of men and women of that State of Jammu and Kashmir."

- Nehru, speaking in the Lok Sabha in 1952

Nehru’s promise lies in tatters today; as does every other promise of autonomy made by the Government of India. Article 370 gives a ‘special status’ to the State of Jammu and Kashmir. On Monday, the Government effectively abolished that status. It did so without touching the provision. It also brought in a constitutional amendment, without amending the constitution. Crucially, it did all of this after zero consultation with the people affected by it all.  Before delving into the legalities of what happened in Parliament, it is imperative to understand the background in which Article 370 was made a part of the Indian Constitution.

Partition and the Indian Independence Act

British rule ended with the creation of two new dominions – India and Pakistan. The princely states were not incorporated into either dominion. The Indian Independence Act provided that all powers returned to the individual states. Rulers had the authority to determine their state’s future. They were encouraged by then Viceroy Lord Mountbatten to accede to one of the dominions. Prior to partition, 562 accessions were accepted by the incoming Indian and Pakistani governments. However, three major princely states, declined to accede to either dominion.

The Accession of Kashmir

At the time of partition, Jammu and Kashmir was a Muslim majority state ruled by a Hindu king. Accession to either India or Pakistan seemed equally plausible. When British sovereignty lapsed, Maharaja Hari Singh had not decided as to whether Kashmir would accede to India or Pakistan. He executed a standstill agreement with Pakistan, and requested India for time to consider an agreement.

During this standstill, Pakistani raiders, with the support of the Pakistani Army, began advancing on Kashmir in October 1947. A panicked Maharaja invited Indian forces into Kashmir to provide temporary protection. Subsequently, the Maharaja executed an instrument of accession with India. Under the instrument, defence, external affairs, and communications were listed under the exclusive domain of the central government. All other plenary powers would remain vested within the state government. 

Kashmir and the Indian Constitution

Article 370 limits the authority of Parliament to pass legislation for the State of Jammu and Kashmir. Under Articles 370 (1) (b) and 370 (1) (d), the Parliament has to confine legislation affecting the state to areas enumerated in a list attached to the Instrument of Accession. Legislation on other matters can be passed only if it is explicitly concurred to by the Government of Jammu and Kashmir. Under Article 370 (3), the President can modify or even repeal Article 370. However, this could be done only with the concurrence of the Constituent Assembly of the state.

The Amendments

The Constituent Assembly of Kashmir disbanded in 1956. Almost all members are presumably dead. Since Article 370 could be modified only with the concurrence of the Assembly, many believed that Article 370 had become a permanent part of the Constitution. The Government has however paved the way for amending Article 370 by a novel way. At the corell of yesterday’s legislative business, lies Presidential Order C.O. 272 which amends Article 367. Article 367 is the interpretation clause of the Constitution.

The amended Article 367 declares that “the expression ‘Constituent Assembly of the State…’ in Article 370 (3) shall be read to mean ‘Legislative Assembly of the State’. Now bear in mind, that Article 370 could only be modified by the Constituent Assembly of the state. However, because of the amendment, it can now be done away by a recommendation of the state legislature. Given that the State does not presently have a legislature, this role can be performed by the Governor. Thus, all the Government now needs to do away with Article 370 is to get a recommendation from the Governor.

Legal Issues

The Presidential Order amending Article 367 draws its authority from Article 370 (1). Article 370 (1) deals with the power of the Parliament to make laws for the State of Jammu and Kashmir. It does not provide the President the power to amend sundry provisions of the Constitution. An amendment to the Constitution can only be made under Article 368. It requires a 2/3rd majority of Parliament, present and voting. This has not been attempted, and leaves the legality of the Presidential Order in serious doubt.

Further, assuming that the President did indeed have the power to pass the order under Article 370 (1), the same could only have done with the concurrence of the State Government. In fact, the order itself begins by saying that it has been made “in exercise of powers conferred by clause (1) of Article 370 of the Constitution, the President with concurrence of the Government of State of Jammu and Kashmir”.

Jammu and Kashmir has not had a government for months. Instead of consulting the government, the President has consulted the governor. As is well-known, the governor is the representative of the Union Government in the State. So in effect, the Union Government has consulted itself. It is hard to see how this is legal.

It must also be noted that the Presidential Order does not ostensibly amend Article 370. It amends Article 367. However, assuming that these amendments are legal, the ultimate effect of the amendments is on the substance of Article 370. Thus in essence, since the Government could not amend Article 370 directly, it chose to do so indirectly. The Supreme Court has time and again held that this is not legal.

Conclusion

Article 370 has not been amended yet. However, given the amendments to Article 367, the writing is on the wall. The Rajya Sabha has already passed a resolution recommending that the president abrogate most of Article 370. The government has also introduced a re-organization bill that splits up the state of Jammu and Kashmir into the Union Territories of Ladakh (without a legislature) and Jammu and Kashmir (with a legislature).

In the aftermath, cheerleaders of the Government have tried to sell the constitutional changes as ones that will usher in a prosperity for the people of Kashmir. If that was the case, the people would have been consulted. Yesterday’s events come at the end of weeks of troop mobilisation, lies by those in the highest offices of the state, and a complete shut-down of communications in the valley. They are a fraud on the people of Kashmir, on the Constitution and on all the values that our democracy holds dear.

The authors are lawyers who practise in the Supreme Court. They tweet @sanjayuvacha & @parahoot